Exhibit 4.1
INDENTURE
between
FORD CREDIT AUTO OWNER TRUST 2001-A,
as Issuer
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee
Dated as of January 1, 2001
CROSS REFERENCE TABLE
TIA Indenture
Section 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
(b) ..................................................................................... 7.2
(c) ..................................................................................... 7.2
313 (a) ..................................................................................... 7.4
(b)(1).................................................................................... 7.4
(b)(2).................................................................................... 11.5
(c) ..................................................................................... 7.4
(d) ..................................................................................... 7.3
314 (a) ..................................................................................... 11.15
(b) ..................................................................................... 11.1
(c)(1).................................................................................... 11.1
(c)(2).................................................................................... 11.1
(c)(3).................................................................................... 11.1
(d) ..................................................................................... 11.1
(e) ..................................................................................... 11.1
(f) ..................................................................................... 11.1
315 (a) ..................................................................................... 6.1
(b) ...................................................................................6.5;11.5
(c) ..................................................................................... 6.1
(d) ..................................................................................... 6.1
(e) ..................................................................................... 5.13
316 (a) (last sentence)....................................................................... 2.8
(a)(1)(A)................................................................................. 5.11
(a)(1)(B)................................................................................. 5.12
(a)(2).................................................................................... N.A.
(b) ..................................................................................... 5.7
(c) ..................................................................................... N.A
317 (a)(1).................................................................................... 5.3
(a)(2).................................................................................... 5.3
(b) ..................................................................................... 3.3
318 (a) ..................................................................................... 11.7
-----------------------
1 Note: This Cross Reference Table shall not, for any purpose, be deemed
to be part of this Indenture.
2 N.A. means Not Applicable.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS, USAGE AND INCORPORATION BY REFERENCE...................................................4
SECTION 1.1 Definitions and Usage..................................................................4
SECTION 1.2 Incorporation by Reference of Trust Indenture Act......................................4
ARTICLE II
THE NOTES...........................................................................................5
SECTION 2.1 Form...................................................................................5
SECTION 2.2 Execution, Authentication and Delivery.................................................5
SECTION 2.3 Temporary Notes........................................................................6
SECTION 2.4 Tax Treatment..........................................................................7
SECTION 2.5 Registration; Registration of Transfer and Exchange....................................7
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes.............................................9
SECTION 2.7 Persons Deemed Owners.................................................................10
SECTION 2.8 Payment of Principal and Interest; Defaulted Interest.................................10
SECTION 2.9 Cancellation..........................................................................11
SECTION 2.10 Release of Collateral................................................................12
SECTION 2.11 Book-Entry Notes.....................................................................12
SECTION 2.12 Notices to Clearing Agency...........................................................13
SECTION 2.13 Definitive Notes.....................................................................13
SECTION 2.14 Authenticating Agents................................................................14
ARTICLE III
COVENANTS..........................................................................................16
SECTION 3.1 Payment of Principal and Interest.....................................................16
SECTION 3.2 Maintenance of Office or Agency.......................................................16
SECTION 3.3 Money for Payments To Be Held in Trust................................................16
SECTION 3.4 Existence.............................................................................18
SECTION 3.5 Protection of Indenture Trust Estate..................................................18
SECTION 3.6 Opinions as to Indenture Trust Estate.................................................19
SECTION 3.7 Performance of Obligations; Servicing of Receivables..................................20
SECTION 3.8 Negative Covenants....................................................................22
SECTION 3.9 Annual Statement as to Compliance.....................................................23
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms..................................23
SECTION 3.11 Successor or Transferee..............................................................26
SECTION 3.12 No Other Business....................................................................26
SECTION 3.13 No Borrowing.........................................................................26
SECTION 3.14 Servicer's Obligations...............................................................26
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities....................................26
SECTION 3.16 Capital Expenditures.................................................................26
SECTION 3.17 Further Instruments and Acts.........................................................27
SECTION 3.18 Restricted Payments..................................................................27
SECTION 3.19 Notice of Events of Default..........................................................27
SECTION 3.20 Removal of Administrator.............................................................27
SECTION 3.21 Calculation Agent....................................................................27
ARTICLE IV
SATISFACTION AND DISCHARGE.........................................................................29
SECTION 4.1 Satisfaction and Discharge of Indenture..............................................29
SECTION 4.2 Satisfaction, Discharge and Defeasance of Notes.......................................30
SECTION 4.3 Application of Trust Money............................................................32
SECTION 4.4 Repayment of Monies Held by Note Paying Agent.........................................32
ARTICLE V
REMEDIES...........................................................................................33
SECTION 5.1 Events of Default.....................................................................33
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment....................................34
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.............35
SECTION 5.4 Remedies; Priorities..................................................................38
SECTION 5.5 Optional Preservation of the Receivables..............................................42
SECTION 5.6 Limitation of Suits...................................................................43
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest.................44
SECTION 5.8 Restoration of Rights and Remedies....................................................44
SECTION 5.9 Rights and Remedies Cumulative........................................................44
SECTION 5.10 Delay or Omission Not a Waiver.......................................................44
SECTION 5.11 Control by Controlling Note Class of Noteholders.....................................45
SECTION 5.12 Waiver of Past Defaults..............................................................45
SECTION 5.13 Undertaking for Costs................................................................46
SECTION 5.14 Waiver of Stay or Extension Laws.....................................................46
SECTION 5.15 Action on Notes......................................................................47
SECTION 5.16 Performance and Enforcement of Certain Obligations...................................47
ARTICLE VI
THE INDENTURE TRUSTEE..............................................................................49
SECTION 6.1 Duties of Indenture Trustee...........................................................49
SECTION 6.2 Rights of Indenture Trustee...........................................................50
SECTION 6.3 Individual Rights of Indenture Trustee................................................51
SECTION 6.4 Indenture Trustee's Disclaimer........................................................51
SECTION 6.5 Notice of Defaults. ..................................................................52
SECTION 6.6 Reports by Indenture Trustee to Noteholders...........................................52
SECTION 6.7 Compensation and Indemnity............................................................52
SECTION 6.8 Replacement of Indenture Trustee......................................................53
SECTION 6.9 Successor Indenture Trustee by Merger.................................................54
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee....................55
SECTION 6.11 Eligibility; Disqualification........................................................56
SECTION 6.12 Preferential Collection of Claims Against Issuer.....................................57
SECTION 6.13 Interest Rate Swap Provisions........................................................57
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS.....................................................................60
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders................60
SECTION 7.2 Preservation of Information; Communications to Noteholders............................60
SECTION 7.3 Reports by Issuer.....................................................................60
SECTION 7.4 Reports by Indenture Trustee..........................................................61
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES...............................................................62
SECTION 8.1 Collection of Money...................................................................62
SECTION 8.2 Trust Accounts and Payahead Account...................................................62
SECTION 8.3 General Provisions Regarding Accounts.................................................66
SECTION 8.4 Release of Indenture Trust Estate.....................................................68
SECTION 8.5 Opinion of Counsel....................................................................68
ARTICLE IX
SUPPLEMENTAL INDENTURES............................................................................70
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders................................70
SECTION 9.2 Supplemental Indentures with Consent of Noteholders..................................72
SECTION 9.3 Execution of Supplemental Indentures..................................................74
SECTION 9.4 Effect of Supplemental Indenture......................................................74
SECTION 9.5 Conformity with Trust Indenture Act...................................................75
SECTION 9.6 Reference in Notes to Supplemental Indentures.........................................75
ARTICLE X
REDEMPTION OF NOTES................................................................................76
SECTION 10.1 Redemption...........................................................................76
SECTION 10.2 Form of Redemption Notice............................................................76
SECTION 10.3 Notes Payable on Redemption Date.....................................................77
ARTICLE XI
MISCELLANEOUS......................................................................................78
SECTION 11.1 Compliance Certificates and Opinions, etc............................................78
SECTION 11.2 Form of Documents Delivered to Indenture Trustee.....................................80
SECTION 11.3 Acts of Noteholders..................................................................81
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies......................82
SECTION 11.5 Notices to Noteholders; Waiver.......................................................83
SECTION 11.6 Alternate Payment and Notice Provisions..............................................83
SECTION 11.7 Conflict with Trust Indenture Act....................................................84
SECTION 11.8 Effect of Headings and Table of Contents.............................................84
SECTION 11.9 Successors and Assigns...............................................................84
SECTION 11.10 Separability........................................................................84
SECTION 11.11 Benefits of Indenture...............................................................84
SECTION 11.12 Legal Holidays......................................................................84
SECTION 11.13 Governing Law.......................................................................85
SECTION 11.14 Counterparts........................................................................85
SECTION 11.15 Recording of Indenture..............................................................85
SECTION 11.16 Trust Obligation....................................................................85
SECTION 11.17 No Petition.........................................................................85
SECTION 11.18 Inspection..........................................................................86
EXHIBIT A-1
FORM OF CLASS A-1 NOTE.................................................................A-1-1
EXHIBIT A-2
FORM OF CLASS A-2 NOTE.................................................................A-2-1
EXHIBIT A-3
FORM OF CLASS A-3 NOTE.................................................................A-3-1
EXHIBIT A-4
FORM OF CLASS A-4 NOTE.................................................................A-4-1
EXHIBIT A-5
FORM OF CLASS A-5 NOTE.................................................................A-5-1
EXHIBIT B
FORM OF CLASS B NOTE.....................................................................B-1
EXHIBIT C
FORM OF NOTE DEPOSITORY AGREEMENT........................................................C-1
SCHEDULE A
Schedule of Receivables.................................................................SA-1
APPENDIX A
Definitions and Usage...................................................................AA-1
this INDENTURE, dated as of January 1, 2001, (as from time to time
amended, supplemented or otherwise modified and in effect, this "Indenture")
between FORD CREDIT AUTO OWNER TRUST 2001-A, a Delaware business trust, as
Issuer, and THE CHASE MANHATTAN BANK, a New York corporation, as trustee for
the benefit of the Noteholders and as agent for the Swap Counterparties
(in such capacity, the "Indenture Trustee") and not in its individual
capacity.
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the holders of the Issuer's Class A-1 5.776% Asset
Backed Notes (the "Class A-1 Notes"), Class A-2 5.494% Asset Backed Notes (the
"Class A-2 Notes"), Class A-3 5.35% Asset Backed Notes (the "Class A-3 Notes"),
Class A-4 Floating Rate Asset Backed Notes (the "Class A-4 Notes"), Class A-5
Floating Rate Asset Backed Notes (the "Class A-5 Notes" and, together with the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4
Notes, the "Class A Notes") and Class B 5.96% Asset Backed Notes (the "Class B
Notes" and, together with the Class A Notes, the "Notes") and the Swap
Counterparties:
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date, as
Indenture Trustee for the benefit of the Noteholders and the Swap
Counterparties, all of the Issuer's right, title and interest in, to and under,
whether now owned or existing or hereafter acquired or arising, (a) the
Receivables; (b) with respect to Actuarial Receivables, monies due thereunder on
or after the Cutoff Date (including Payaheads) and, with respect to Simple
Interest Receivables, monies due or received thereunder on or after the Cutoff
Date (including in each case any monies received prior to the Cutoff Date that
are due on or after the Cutoff Date and were not used to reduce the principal
balance of the Receivable); (c) the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables and any other interest of the
Issuer in the Financed Vehicles; (d) rights to receive proceeds with respect to
the Receivables from claims on any physical damage, credit life, credit
disability, or other insurance policies covering Financed Vehicles or Obligors;
(e) Dealer Recourse; (f) all of the rights to the Receivable Files; (g) the
Trust Accounts and all amounts, securities, investments and other property
deposited in or credited to any of the foregoing and all proceeds thereof; (h)
the Sale and Servicing Agreement; (i) all of the rights under the Purchase
Agreement, including the right of the Seller to cause Ford Credit to repurchase
Receivables from the Seller; (j) payments and proceeds with respect to the
Receivables held by the Servicer; (k) all property (including the right to
receive Liquidation Proceeds) securing a Receivable (other than a Receivable
purchased by the Servicer or repurchased by the Seller); (l) rebates of premiums
and other amounts relating to insurance policies and other items financed under
the Receivables in effect as of the Cutoff Date; (m) all of the Issuer's rights
in the Interest Rate Swap Agreements and (n) all present and future claims,
demands, causes of action and choses in action in respect of any or all of the
foregoing and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all proceeds of
the conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure (a) the payment of principal of
and interest on, and any other amounts owing in respect of, the Notes, equally
and ratably without prejudice, priority or distinction, and to secure compliance
with the provisions of this Indenture, all as provided in this Indenture and (b)
payment of amounts payable to the Swap Counterparties under the Interest Rate
Swap Agreements.
The Indenture Trustee, as Indenture Trustee on behalf of the Noteholders and the
Swap Counterparties, acknowledges such Grant, accepts the trusts under this
Indenture in accordance with the provisions of this Indenture and agrees to
perform its duties required in this Indenture to the best of its ability to the
end that the interests of the Noteholders and the Swap Counterparties may be
adequately and effectively protected.
ARTICLE I
DEFINITIONS, USAGE AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions and Usage . Except as otherwise
specified herein or as the context may otherwise require, capitalized terms used
but not otherwise defined herein are defined in Appendix A hereto, which also
contains rules as to usage that shall be applicable herein.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act
. Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" shall mean the Notes.
"indenture security holder" shall mean a Noteholder.
"indenture to be qualified" shall mean this Indenture.
"indenture trustee" or "institutional trustee" shall mean the
Indenture Trustee.
"obligor" on the indenture securities shall mean 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 Commission
rule have the meaning assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.1 Form . (a) The Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes, the Class A-4 Notes, the Class A-5 Notes and the
Class B Notes, together with the Indenture Trustee's certificates of
authentication, shall be in substantially the form set forth in Exhibit X-0,
Xxxxxxx X-0, Exhibit X-0, Xxxxxxx X-0, Exhibit A-5 and Exhibit B, respectively,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may, consistently herewith, be determined by the officers executing
such Notes, as evidenced by their execution thereof. Any portion of the text of
any Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.
(b) The definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the officers executing
such Notes, as evidenced by their execution of such Notes.
(c) Each Note shall be dated the date of its authentication.
The terms of the Notes set forth in Exhibit X-0, Xxxxxxx X-0, Exhibit X-0,
Xxxxxxx X-0, Exhibit A-5 and Exhibit B are part of the terms of this Indenture
and are incorporated herein by reference.
SECTION 2.2 Execution, Authentication and Delivery . (a) The
Notes shall be executed on behalf of the Issuer by any of its Authorized
Officers. The signature of any such Authorized Officer on the Notes may be
manual or facsimile.
(b) Notes bearing the manual or facsimile signature of
individuals who were at any time Authorized Officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
(c) The Indenture Trustee shall, upon Issuer Order,
authenticate and deliver the Notes for original issue in the Classes and initial
aggregate principal amounts as set in the table below.
Class Initial Aggregate
Principal Amount
Class A-1 Notes $ 200,000,000
Class A-2 Notes $ 385,000,000
Class A-3 Notes $ 1,190,000,000
Class A-4 Notes $ 800,000,000
Class A-5 Notes $ 359,785,000
Class B Notes $ 108,695,000
The aggregate principal amount of Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes, Class A-4 Notes, Class A-5 Notes and Class B Notes
Outstanding at any time may not exceed those respective amounts
except as provided in Section 2.6.
(d) The Class A-1 and Class A-2 Notes shall be
issuable as Book-Entry Notes in minimum denominations of $100,000 and
in integral multiples of $1,000 in excess thereof. The Class A-3,
Class A-4, Class A-5 and Class B Notes shall be issuable as
Book-Entry Notes in minimum denominations of $1,000 and in integral
multiples of $1,000 in excess thereof.
(e) No Note shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose, unless
there appears on such Note a certificate of authentication
substantially in the form provided for herein executed by the
Indenture Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
SECTION 2.3 Temporary Notes . (a) Pending the
preparation of definitive Notes, the Issuer may execute, and upon
receipt of an Issuer Order the Indenture Trustee shall authenticate
and deliver, temporary Notes that are printed, lithographed,
typewritten, mimeographed or otherwise produced, substantially of the
tenor of the definitive Notes in lieu of which they are issued and
with such variations not inconsistent with the terms of this
Indenture as the officers executing the temporary Notes may
determine, as evidenced by their execution of such temporary Notes.
If temporary Notes are issued, the Issuer shall
cause definitive Notes to be prepared without unreasonable delay.
After the preparation of definitive Notes, the temporary Notes shall
be exchangeable for definitive Notes upon surrender of the temporary
Notes at the office or agency of the Issuer to be maintained as
provided in Section 3.2, without charge to the Noteholder. Upon
surrender for cancellation of any one or more temporary Notes, the
Issuer shall execute, and the Indenture Trustee shall authenticate
and deliver in exchange therefor, a like principal amount of
definitive Notes of authorized denominations. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes.
SECTION 2.4 Tax Treatment . The Issuer has entered
into this Indenture, and the Notes shall be issued, with the
intention that, for federal, State and local income and franchise tax
purposes, the Notes shall qualify as indebtedness of the Issuer
secured by the Indenture Trust Estate. 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 federal, State and
local income and franchise tax purposes as indebtedness of the
Issuer.
SECTION 2.5 Registration; Registration of Transfer
and Exchange . (a) The Issuer shall cause to be kept a register (the
"Note Register") in which, subject to such reasonable regulations as
it may prescribe, the Issuer shall provide for the registration of
Notes and the registration of transfers of Notes. The Indenture
Trustee initially shall be the "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint
a successor or, if it elects not to make such an appointment, assume
the duties of Note Registrar. If a Person other than the Indenture
Trustee is appointed by the Issuer as Note Registrar, (i) the Issuer
shall give the Indenture Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register, (ii) the Indenture
Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof, and (iii) the
Indenture Trustee shall have the right to rely upon a certificate
executed on behalf of the Note Registrar by an Executive Officer
thereof as to the names and addresses of the Noteholders and the
principal amounts and number of such Notes.
(b) Reserved
(c) Upon surrender for registration of transfer of
any Note at the office or agency of the Issuer to be maintained as
provided in Section 3.2, if the requirements of Section 8-401(1) of
the UCC are met the Issuer shall execute, and the Indenture Trustee
shall authenticate and the Noteholder shall 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,
of a like aggregate principal amount.
(d) At the option of the Noteholder, Notes may be
exchanged for other Notes of the same Class in any authorized
denominations, of a like aggregate principal amount, upon surrender
of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, if the requirements of Section
8-401(1) of the UCC are met, the Issuer shall execute, the Indenture
Trustee shall authenticate, and the Noteholder shall obtain from the
Indenture Trustee, the Notes which the Noteholder making such
exchange is entitled to receive.
(e) All Notes issued upon any registration of
transfer or exchange of Notes shall 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.
(f) Every Note presented or surrendered for
registration of transfer or exchange shall be (i) duly endorsed by,
or be accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the
Noteholder thereof 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 STAMP or such
other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended, and
(ii) accompanied by such other documents or evidence as the Indenture
Trustee may require.
(g) No service charge shall be made to a Noteholder
for any registration of transfer or exchange of Notes, but the Issuer
may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 2.3 or 9.6 not involving any transfer.
(h) The preceding provisions of this Section 2.5
notwithstanding, the Issuer shall not be required to make and the
Note Registrar need not register transfers or exchanges of Notes
selected for redemption or of any Note for a period of fifteen (15)
days preceding the Distribution Date for any payment with respect to
such Note.
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen
Notes . (a) If (i) any mutilated Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note, and (ii)
there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the
Indenture Trustee harmless, then, in the absence of notice to the
Issuer, the Note Registrar or the Indenture Trustee that such Note
has been acquired by a protected purchaser, as defined in Section
8-303 of the UCC, and provided that the requirements of Section 8-405
of the UCC are met, the Issuer shall execute, and upon Issuer Request
the Indenture Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of the same Class; provided, however, that if any
such destroyed, lost or stolen Note, but not a mutilated Note, shall
have become or within seven (7) days shall be due and payable, or
shall have 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 thereof. If, after the delivery of such replacement Note or
payment of a destroyed, lost or stolen Note pursuant to the proviso
to the preceding sentence, a protected purchaser of the original Note
in lieu of which such replacement Note was issued presents for
payment such original Note, the Issuer and the Indenture Trustee
shall 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 from such Person to whom such replacement Note was
delivered or any assignee of such Person, except a protected
purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer or the Indenture Trustee in
connection therewith.
(b) Upon the issuance of any replacement Note under
this Section 2.6, the Issuer may require the payment by the
Noteholder of such Note of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of the
Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this
Section 2.6 in replacement of any mutilated, destroyed, lost or
stolen Note shall constitute an original additional contractual
obligation of the Issuer, whether or not the mutilated, destroyed,
lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section 2.6 are exclusive
and shall 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 2.7 Persons Deemed Owners . Prior to due
presentment for registration of transfer of any Note, 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 the day of determination) as the owner of such Note for the
purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, whether or not
such Note be overdue, and none of the Issuer, the Indenture Trustee
or any agent of the Issuer or the Indenture Trustee shall be affected
by notice to the contrary.
SECTION 2.8 Payment of Principal and Interest;
Defaulted Interest . (a) The Class A-1 Notes, the Class A-2 Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class A-5 Notes and the
Class B Notes shall accrue interest at the Class A-1 Rate, the Class
A-2 Rate, the Class A-3 Rate, the Class A-4 Rate, the Class A-5 Rate
and the Class B Rate, respectively, as set forth in Exhibit X-0,
Xxxxxxx X-0, Exhibit X-0, Xxxxxxx X-0, Exhibit A-5 and Exhibit B,
respectively, and such interest shall be due and payable on each
Distribution Date as specified therein, subject to Section 3.1. Any
installment of interest or principal, if any, payable on any Note
that is punctually paid or duly provided for by the Issuer on the
applicable Distribution Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered on
the Record Date either by wire transfer in immediately available
funds, to the account of such Noteholder at a bank or other entity
having appropriate facilities therefor, if such Noteholder shall have
provided to the Note Registrar appropriate written instructions at
least five (5) Business Days prior to such Distribution 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 postage
prepaid to such Person's address as it appears on the Note Register
on such Record Date; provided that, unless Definitive Notes have been
issued to Note Owners pursuant to Section 2.13, with respect to Notes
registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payment
shall be made by wire transfer in immediately available funds to the
account designated by such nominee, and except for the final
installment of principal payable with respect to such Note on a
Distribution Date, Redemption Date or the applicable Final Scheduled
Distribution Date, which shall be payable as provided below. The
funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3.
(b) The principal of each Note shall be payable in
installments on each Distribution Date as provided in the forms of
Notes set forth in Exhibit X-0, Xxxxxxx X-0, Exhibit A-3, Exhibit
X-0, Xxxxxxx X-0 and Exhibit B hereto. Notwithstanding the foregoing,
the entire unpaid principal amount of each Class of Notes shall be
due and payable, if not previously paid, on the date on which an
Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Noteholders of Notes evidencing not less
than a majority of the Note Balance of the Controlling Note Class
have declared the Notes to be immediately due and payable in the
manner provided in Section 5.2. All principal payments on each Class
of Notes shall be made pro rata to the Noteholders of such Class
entitled thereto. The Indenture Trustee shall notify the Person in
whose name a Note is registered at the close of business on the
Record Date preceding the Distribution Date on which the Issuer
expects that the final installment of principal of and interest on
such Note shall be paid. Such notice shall be mailed or transmitted
by facsimile prior to such final Distribution Date and shall specify
that such final installment shall be payable only upon presentation
and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such
installment. Notices in connection with redemption of Notes shall be
mailed to Noteholders as provided in Section 10.2.
(c) If the Issuer defaults in a payment of interest
on the Notes, the Issuer shall pay defaulted interest (plus interest
on such defaulted interest to the extent lawful) at the applicable
Note Interest Rate on the Distribution Date following such default.
The Issuer shall pay such defaulted interest to the Persons who are
Noteholders on the Record Date for such following Distribution Date.
SECTION 2.9 Cancellation . All Notes surrendered for
payment, registration of transfer, exchange or redemption shall, if
surrendered to any Person other than the Indenture Trustee, be
delivered to the Indenture Trustee and shall be promptly cancelled by
the Indenture Trustee. The Issuer may at any time deliver to the
Indenture Trustee for cancellation any Notes previously authenticated
and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly
cancelled by the Indenture Trustee. No Notes shall be authenticated
in lieu of or in exchange for any Notes cancelled as provided in this
Section 2.9, except as expressly permitted by this Indenture. All
cancelled Notes may be held or disposed of by the Indenture Trustee
in accordance with its standard retention or disposal policy as in
effect at the time unless the Issuer shall direct by an Issuer Order
that they be destroyed or returned to it and so long as such Issuer
Order is timely and the Notes have not been previously disposed of by
the Indenture Trustee.
SECTION 2.10 Release of Collateral . Subject to
Section 11.1 and the terms of the Basic Documents, the Indenture
Trustee shall release property from the lien of this Indenture only
upon receipt of an Issuer Request accompanied by an Officer's
Certificate, an Opinion of Counsel and Independent Certificates in
accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion of
Counsel in lieu of such Independent Certificates to the effect that
the TIA does not require any such Independent Certificates. If the
Commission shall issue an exemptive order under TIA Section 304(d)
modifying the Owner Trustee's obligations under TIA Sections 314(c)
and 314(d)(1), subject to Section 11.1 and the terms of the Basic
Documents, the Indenture Trustee shall release property from the lien
of this Indenture in accordance with the conditions and procedures
set forth in such exemptive order.
SECTION 2.11 Book-Entry Notes . The Notes, upon
original issuance, shall be issued in the form of typewritten Notes
representing the Book-Entry Notes, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, the
Issuer. The Book-Entry Notes shall be registered initially on the
Note Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Note Owner thereof shall receive a Definitive
Note (as defined below) representing such Note Owner's interest in
such Note, except as provided in Section 2.13. Unless and until
definitive, fully registered Notes (the "Definitive Notes") have been
issued to such Note Owners pursuant to Section 2.13:
(i) the provisions of this Section 2.11 shall be in full
force and effect;
(ii) the Note Registrar and the Indenture Trustee shall 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
instructions or directions hereunder) as the sole Noteholder,
and shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this Section 2.11
conflict with any other provisions of this Indenture, the
provisions of this Section 2.11 shall control;
(iv) the rights of Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established
by law and agreements between such Note Owners and the
Clearing Agency and/or the Clearing Agency Participants
pursuant to the Note Depository Agreement. Unless and until
Definitive Notes are issued to Note Owners pursuant to Section
2.13, the initial Clearing Agency shall make book-entry
transfers among the Clearing Agency Participants and receive
and transmit payments of principal of and interest on the
Book-Entry Notes to such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Noteholders of
Notes evidencing a specified percentage of the Note Balance of
the Notes Outstanding (or any Class thereof, including the
Controlling Note Class) the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has
received instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial
interest of the Notes Outstanding (or Class thereof, including
the Controlling Note Class) and has delivered such
instructions to the Indenture Trustee.
SECTION 2.12 Notices to Clearing Agency . Whenever a
notice or other communication to the Noteholders of Book-Entry Notes
is required under this Indenture, unless and until Definitive Notes
shall have been issued to the Note Owners pursuant to Section 2.13,
the Indenture Trustee shall give all such notices and communications
specified herein to be given to Noteholders of Book-Entry Notes to
the Clearing Agency, and shall have no obligation to such Note
Owners.
SECTION 2.13 Definitive Notes . With respect to any
Class or Classes of Book-Entry Notes, if (i) the Administrator
advises the Indenture Trustee in writing that the Clearing Agency is
no longer willing or able to properly discharge its responsibilities
with respect to such Class of Book-Entry Notes and the Administrator
is unable to locate a qualified successor, (ii) the Administrator, at
its option, advises the Indenture Trustee in writing 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, Note Owners of such Class of Book-Entry Notes
evidencing beneficial interests aggregating not less than a majority
of the Note Balance of such Class advise the Indenture Trustee and
the Clearing Agency in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best interests
of such Class of Note Owners, then the Clearing Agency shall notify
all Note Owners of such Class and the Indenture Trustee of the
occurrence of such event and of the availability of Definitive Notes
to the Note Owners of the applicable Class requesting the same. Upon
surrender to the Indenture Trustee of the typewritten Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied
by registration instructions, the Issuer shall execute and the
Indenture Trustee shall authenticate the Definitive Notes in
accordance with the instructions of the Clearing Agency. None of the
Issuer, the Note Registrar or the Indenture Trustee shall be liable
for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Notes to Note Owners, the Indenture
Trustee shall recognize the holders of such Definitive Notes as
Noteholders.
SECTION 2.14 Authenticating Agents . (a) The
Indenture Trustee may appoint one or more Persons (each, an
"Authenticating Agent") with power to act on its behalf and subject
to its direction in the authentication of Notes in connection with
issuance, transfers and exchanges under Sections 2.2, 2.3, 2.5, 2.6
and 9.6, as fully to all intents and purposes as though each such
Authenticating Agent had been expressly authorized by those Sections
to authenticate such Notes. For all purposes of this Indenture, the
authentication of Notes by an Authenticating Agent pursuant to this
Section 2.14 shall be deemed to be the authentication of Notes "by
the Indenture Trustee."
(b) Any corporation into which any Authenticating
Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
consolidation or conversion to which any Authenticating Agent shall
be a party, or any corporation succeeding to all or substantially all
of the corporate trust business of any Authenticating Agent, shall be
the successor of such Authenticating Agent hereunder, without the
execution or filing of any further act on the part of the parties
hereto or such Authenticating Agent or such successor corporation.
(c) Any Authenticating Agent may at any time resign
by giving written notice of resignation to the Indenture Trustee and
the Owner Trustee. The Indenture Trustee may at any time terminate
the agency of any Authenticating Agent by giving written 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
shall give written notice of any such appointment to the Owner
Trustee.
(d) The Administrator agrees to pay to each
Authenticating Agent from time to time reasonable compensation for
its services. The provisions of Sections 2.9 and 6.4 shall be
applicable to any Authenticating Agent.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest . The
Issuer shall duly and punctually pay the principal of and interest,
if any, on the Notes in accordance with the terms of the Notes and
this Indenture. Without limiting the foregoing and subject to Section
8.2, on each Distribution Date the Issuer shall cause to be paid all
amounts on deposit in the Collection Account and the Principal
Distribution Account with respect to the Collection Period preceding
such Distribution Date and deposited therein pursuant to the Sale and
Servicing Agreement. Amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest and/or principal
shall be considered as having been paid by the Issuer to such
Noteholder for all purposes of this Indenture.
SECTION 3.2 Maintenance of Office or Agency . The
Issuer shall maintain in the Borough of Manhattan, The City of New
York, an office or agency 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 hereby initially appoints the Indenture Trustee
to serve as its agent for the foregoing purposes. The Issuer shall
give prompt written notice to the Indenture Trustee of the location,
and of any change in the location, of any such office or agency. If,
at any time, the Issuer shall fail to maintain any such office or
agency or shall fail to furnish the Indenture Trustee with the
address thereof, such surrenders, notices and demands may be made or
served at the Corporate Trust Office, and the Issuer hereby 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) As provided in Sections 8.2 and 5.4(b), all payments of amounts
due and payable with respect to any Notes that are to be made from
amounts withdrawn from the Trust Accounts and the Payahead Account
shall be made on behalf of the Issuer by the Indenture Trustee or by
another Note Paying Agent, and no amounts so withdrawn from the Trust
Accounts and the Payahead Account for payments of Notes shall be paid
over to the Issuer, except as provided in this Section 3.3.
(b) On or before each Distribution Date and
Redemption Date, the Issuer shall deposit or cause to be deposited in
the Collection Account an aggregate sum sufficient to pay the amounts
then becoming due under the Notes and under the Interest Rate Swap
Agreements, such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless the Note Paying Agent is the
Indenture Trustee) shall promptly notify the Indenture Trustee of its
action or failure so to act.
(c) The Issuer shall cause each Note Paying Agent
other than the Indenture Trustee to execute and deliver to the
Indenture Trustee an instrument in which such Note Paying Agent shall
agree with the Indenture Trustee (and if the Indenture Trustee acts
as Note Paying Agent, it hereby so agrees), subject to the provisions
of this Section 3.3, that such Note Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and pay
such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Notes) of which it has
actual knowledge in the making of any payment required to be
made with respect to the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith
pay to the Indenture Trustee all sums so held in trust by such
Note Paying Agent;
(iv) immediately resign as a Note Paying Agent and forthwith
pay to the Indenture Trustee all sums held by it in trust for
the payment of Notes if at any time it ceases to meet the
standards required to be met by a Note Paying Agent at the
time of its appointment; and
(v) comply with all requirements of the Code and any State or
local tax law with respect to the withholding from any
payments made by it on any Notes of any applicable withholding
taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
(d) The Issuer may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any
other purpose, 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; and upon such payment by any Note Paying Agent to the
Indenture Trustee, such Note Paying Agent shall be released from all
further liability with respect to such money.
(e) Subject to applicable 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 two (2) years after such
amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on Issuer Request; and the Noteholder of
such Note shall thereafter, as an unsecured general creditor, look
only to the Issuer for payment thereof (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
shall thereupon cease; provided, however, that the Indenture Trustee
or such Note Paying Agent, before being required to make any such
repayment, shall at the expense and direction of the Issuer cause to
be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than
thirty (30) days from the date of such publication, any unclaimed
balance of such money then remaining shall be repaid to the Issuer.
The Indenture Trustee shall also adopt and employ, at the expense and
direction of the Issuer, any other reasonable means of notification
of such repayment (including, but not limited to, mailing notice of
such repayment to 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, at the
last address of record for each such Noteholder).
SECTION 3.4 Existence . The Issuer shall keep in
full effect its existence, rights and franchises as a business trust
under the laws of the State of Delaware (unless it becomes, or any
successor Issuer hereunder is or becomes, organized under the laws of
any other State or of the United States of America, in which case the
Issuer shall keep in full effect its existence, rights and franchises
under the laws of such other jurisdiction) and shall obtain and
preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the
validity and enforceability of this Indenture, the Notes, the
Collateral and each other instrument or agreement included in the
Indenture Trust Estate.
SECTION 3.5 Protection of Indenture Trust Estate .
The Issuer shall from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other
instruments, and shall take such other action necessary or advisable
to:
(i) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more
effectively the purposes hereof;
(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 Indenture Trust Estate
and the rights of the Indenture Trustee, the Swap
Counterparties and the Noteholders in such Indenture Trust
Estate against the claims of all Persons.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation
statement or other instrument required to be executed pursuant to
this Section 3.5; provided, however, that the Indenture Trustee shall
be under no obligation to file any such financing statement,
continuation statement or other instrument required to be executed
pursuant to this Section 3.5.
SECTION 3.6 Opinions as to Indenture Trust Estate .
(a) On the Closing Date, the Issuer shall furnish to the Indenture
Trustee an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the
recording and filing of this Indenture, any indentures supplemental
hereto, and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation
statements, as are necessary to perfect and make effective the lien
and security interest of 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 and security interest
effective.
(b) On or before April 30 in each calendar year,
beginning in 2001, the Issuer shall furnish to the Indenture Trustee
an Opinion of Counsel either stating 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, any indentures
supplemental hereto and any other requisite documents and with
respect to the execution and filing of any financing statements and
continuation statements and any other action that may be required by
law as is necessary to maintain the lien and security interest
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 maintain such lien and security interest. Such Opinion
of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto
and any other requisite documents and the execution and filing of any
financing statements and continuation statements that shall, in the
opinion of such counsel, be required to maintain the lien and
security interest of this Indenture until April 30 in the following
calendar year.
SECTION 3.7 Performance of Obligations; Servicing of
Receivables . (a) The Issuer shall not take any action and shall use
its best efforts not to permit any action to be taken by others that
would release any Person from any of such Person's material covenants
or obligations under any instrument or agreement included in the
Indenture Trust Estate 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 expressly provided in this Indenture and the other Basic
Documents.
(b) 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 shall be deemed to
be action taken by the Issuer. Initially, the Issuer has contracted
with the Servicer and the Administrator to assist the Issuer in
performing its duties under this Indenture.
(c) The Issuer shall punctually perform and observe
all of its obligations and agreements contained in this Indenture,
the other Basic Documents and in the instruments and agreements
included in the Indenture Trust Estate, including, but not limited
to, filing or causing to be filed all financing statements and
continuation statements required to be filed under the UCC by the
terms of this Indenture and the Sale and Servicing Agreement in
accordance with and within the time periods provided for herein and
therein. Except as otherwise expressly provided therein, the Issuer
shall not waive, amend, modify, supplement or terminate any Basic
Document or any provision thereof without the consent of the
Indenture Trustee and the Noteholders of Notes evidencing not less
than a majority of the Note Balance of each Class of Notes then
Outstanding, voting separately.
(d) If the Issuer shall have knowledge of the
occurrence of an Event of Servicing Termination under the Sale and
Servicing Agreement, the Issuer shall promptly notify the Indenture
Trustee and the Rating Agencies thereof and shall specify in such
notice the action, if any, the Issuer is taking in respect of such
default. If an Event of Servicing Termination shall arise from the
failure of the Servicer to perform any of its duties or obligations
under the Sale and Servicing Agreement with respect to the
Receivables, the Issuer shall take all reasonable steps available to
it to remedy such failure.
(e) As promptly as possible after the giving of
notice of termination to the Servicer of the Servicer's rights and
powers pursuant to Section 8.1 of the Sale and Servicing Agreement or
the Servicer's resignation in accordance with the terms of the Sale
and Servicing Agreement, the Issuer shall appoint a Successor
Servicer meeting the requirements of the Sale and Servicing
Agreement, and such Successor Servicer shall accept its appointment
by a written assumption in a form acceptable to the Indenture
Trustee. In the event that a Successor Servicer has not been
appointed at the time when the Servicer ceases to act as Servicer,
the Indenture Trustee without further action shall automatically be
appointed the Successor Servicer. If the Indenture Trustee shall be
legally unable to act as Successor Servicer, it may appoint, or
petition a court of competent jurisdiction to appoint, a Successor
Servicer. The Indenture Trustee may resign as the Servicer by giving
written notice of such resignation to the Issuer and in such event
shall be released from such duties and obligations, such release not
to be effective until the date a new servicer enters into a servicing
agreement with the Issuer as provided below. Upon delivery of any
such notice to the Issuer, the Issuer shall obtain a new servicer as
the Successor Servicer under the Sale and Servicing Agreement. Any
Successor Servicer (other than the Indenture Trustee) shall (i) be an
established institution having a net worth of not less than
$100,000,000 and whose regular business shall include the servicing
of automotive receivables and (ii) enter into a servicing agreement
with the Issuer having substantially the same provisions as the
provisions of the Sale and Servicing Agreement applicable to the
Servicer. If, within thirty (30) days after the delivery of the
notice referred to above, the Issuer shall not have obtained such a
new servicer, the Indenture Trustee may appoint, or may petition a
court of competent jurisdiction to appoint, a Successor Servicer. In
connection with any such appointment, the Indenture Trustee may make
such arrangements for the compensation of such successor as it and
such successor shall agree, subject to the limitations set forth
below and in the Sale and Servicing Agreement, and, in accordance
with Section 8.2 of the Sale and Servicing Agreement, the Issuer
shall enter into an agreement with such successor for the servicing
of the Receivables (such agreement to be in form and substance
satisfactory to the Indenture Trustee). If the Indenture Trustee
shall succeed to the Servicer's duties as servicer of the Receivables
as provided herein, it shall do so in its individual capacity and not
in its capacity as Indenture Trustee and, accordingly, the provisions
of Article VI hereof shall be inapplicable to the Indenture Trustee
in its duties as the successor to the Servicer and the servicing of
the Receivables. In case the Indenture Trustee shall become successor
to the Servicer under the Sale and Servicing Agreement, the Indenture
Trustee shall be entitled to appoint as Servicer any one of its
Affiliates; provided that the Indenture Trustee, in its capacity as
the Servicer, shall be fully liable for the actions and omissions of
such Affiliate in such capacity as Successor Servicer.
(f) Upon any termination of the Servicer's rights
and powers pursuant to the Sale and Servicing Agreement, the Issuer
shall promptly notify the Indenture Trustee. As soon as a Successor
Servicer is appointed by the Issuer, the Issuer shall notify the
Indenture Trustee of such appointment, specifying in such notice the
name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of
the assignment granted to the Indenture Trustee under this Indenture
or the rights of the Indenture Trustee hereunder, the Issuer hereby
agrees that it shall not, without the prior written consent of the
Indenture Trustee or the Noteholders of Notes evidencing not less
than a majority in Note Balance of the Notes Outstanding, amend,
modify, waive, supplement, terminate or surrender, or agree to any
amendment, modification, supplement, termination, waiver or surrender
of, the terms of any Collateral (except to the extent otherwise
provided in the Sale and Servicing Agreement or the other Basic
Documents).
SECTION 3.8 Negative Covenants . So long as any
Notes are Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture, the Trust
Agreement, the Purchase Agreement or the Sale and Servicing
Agreement, sell, transfer, exchange or otherwise dispose of
any of the properties or assets of the Issuer, including those
included in the Indenture Trust Estate, unless directed to do
so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other
than amounts properly withheld from such payments under the
Code) or assert any claim against any present or former
Noteholder by reason of the payment of the taxes levied or
assessed upon the Trust or the Indenture Trust Estate;
(iii) dissolve or liquidate in whole or in part; or
(iv) (A) 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 may be expressly permitted hereby, (B)
permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien of this
Indenture) to be created on or extend to or otherwise arise
upon or burden the assets of the Issuer, including those
included in the Indenture Trust Estate, or any part thereof or
any interest therein or the proceeds thereof (other than tax
liens, mechanics' liens and other liens that arise by
operation of law, in each case on any of the Financed Vehicles
and arising solely as a result of an action or omission of the
related Obligor) or (C) permit the lien of this Indenture not
to constitute a valid first priority (other than with respect
to any such tax, mechanics' or other lien) security interest
in the Indenture Trust Estate.
SECTION 3.9 Annual Statement as to Compliance . The
Issuer shall deliver to the Indenture Trustee, within 120 days after
the end of each calendar year, an Officer's Certificate stating, as
to the Authorized Officer signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such year
and of its performance under this Indenture has been made
under such Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge, based
on such review, the Issuer has complied with all conditions
and covenants under this Indenture throughout such year, or,
if there has been a default in its compliance with any such
condition or covenant, specifying each such default known to
such Authorized Officer and the nature and status thereof.
SECTION 3.10 Issuer May Consolidate, etc., Only on
Certain Terms . (a) The Issuer shall not consolidate or merge with or
into any other Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person
organized and existing under the laws of the United States of
America or any State and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of and
interest on all Notes and the performance or observance of
every agreement and covenant of this Indenture on the part of
the Issuer to be performed or observed, all as provided
herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee)
to the effect that such transaction will not have any material
adverse tax consequence to the Issuer, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been
taken; and
(vi) the Issuer shall have delivered to the Seller, the
Servicer, the Owner Trustee and the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating
that such consolidation or merger and such supplemental
indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction
have been complied with (including any filing required by the
Exchange Act).
(b) Other than as specifically contemplated by the
Basic Documents, the Issuer shall not convey or transfer any of its
properties or assets, including those included in the Indenture Trust
Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer
of which is hereby restricted shall (A) be a United States
citizen or a Person organized and existing under the laws of
the United States of America or any State, (B) expressly
assumes, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to
the Indenture Trustee, the due and punctual payment of the
principal of and interest on all Notes and of all obligations
under the Interest Rate Swap Agreements and the performance or
observance of every agreement and covenant of this Indenture
on the part of the Issuer to be performed or observed, all as
provided herein, (C) expressly agrees by means of such
supplemental indenture that all right, title and interest so
conveyed or transferred shall be subject and subordinate to
the rights of Noteholders and the Swap Counterparties, (D)
unless otherwise provided in such supplemental indenture,
expressly agrees to indemnify, defend and hold harmless the
Issuer against and from any loss, liability or expense arising
under or related to this Indenture and the Notes, and (E)
expressly agrees by means of such supplemental indenture that
such Person (or if a group of Persons, then one specified
Person) shall make all filings with the Commission (and any
other appropriate Person) required by the Exchange Act in
connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee)
to the effect that such transaction will not have any material
adverse tax consequence to the Issuer, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been
taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each
stating that such conveyance or transfer and such supplemental
indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction
have been complied with (including any filing required by the
Exchange Act).
SECTION 3.11 Successor or Transferee . (a) Upon any
consolidation or merger of the Issuer in accordance with Section
3.10(a), the Person formed by or surviving such consolidation or
merger (if other than the Issuer) shall 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 herein.
(b) Upon a conveyance or transfer of all the assets
and properties of the Issuer pursuant to Section 3.10(b), the Issuer
shall be released from every covenant and agreement of this Indenture
to be observed or performed on the part of the Issuer with respect to
the Notes immediately upon the delivery of written notice to the
Indenture Trustee stating that the Issuer is to be so released.
SECTION 3.12 No Other Business . The Issuer shall
not engage in any business other than financing, acquiring, owning
and pledging the Receivables in the manner contemplated by this
Indenture and the Basic Documents and activities incidental thereto.
SECTION 3.13 No Borrowing . The Issuer shall not
issue, incur, assume, guarantee or otherwise become liable, directly
or indirectly, for any indebtedness except for the Notes and the
Certificates.
SECTION 3.14 Servicer's Obligations . The Issuer
shall cause the Servicer to comply with the Sale and Servicing
Agreement, including Sections 3.9, 3.10, 3.11, 3.12, 3.13 and 4.9 and
Article VII thereof.
SECTION 3.15 Guarantees, Loans, Advances and Other
Liabilities . Except as contemplated by this Indenture and the
other Basic Documents, the Issuer shall not make any loan or
advance or credit to, or guarantee (directly or indirectly or by
an instrument having the effect of assuring another's payment or
performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable,
directly or indirectly, in connection with the obligations, stocks
or dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital
contribution to, any other Person.
SECTION 3.16 Capital Expenditures . The Issuer shall
not make any expenditure (by long-term or operating lease or
otherwise) for capital assets (either realty or personalty).
SECTION 3.17 Further Instruments and Acts . Upon
request of the Indenture Trustee, the Issuer shall execute and
deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the
purpose of this Indenture.
SECTION 3.18 Restricted Payments . The Issuer shall
not, directly or indirectly, (i) make any distribution (by reduction
of capital or otherwise), whether in cash, property, securities or a
combination thereof, 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; provided, however, that the Issuer may make, or
cause to be made, (x) payments to the Servicer, the Seller, the
Administrator, the Owner Trustee, the Indenture Trustee, the Swap
Counterparties, the Noteholders and the Certificateholders as
contemplated by, and to the extent funds are available for such
purpose under, this Indenture and the other Basic Documents and (y)
payments to the Indenture Trustee pursuant to Section 2(a)(ii) of the
Administration Agreement. The Issuer shall not, directly or
indirectly, make payments to or distributions from the Collection
Account or the Principal Distribution Account except in accordance
with this Indenture and the other Basic Documents.
SECTION 3.19 Notice of Events of Default . The
Issuer shall give the Indenture Trustee and the Rating Agencies
prompt written notice of each Event of Default hereunder and of each
default on the part of any party to the Sale and Servicing Agreement,
the Purchase Agreement or any Interest Rate Swap Agreement with
respect to any of the provisions thereof.
SECTION 3.20 Removal of Administrator . For so long
as any Notes are Outstanding, the Issuer shall not remove the
Administrator without cause unless the Rating Agency Condition shall
have been satisfied in connection therewith.
SECTION 3.21 Calculation Agent . (a) The Issuer
agrees that for so long as any of the Class A-4 Notes or Class A-5
Notes are Outstanding there shall at all times be an agent appointed
to calculate LIBOR in respect of each Interest Period (the
"Calculation Agent"). The Issuer hereby appoints The Chase Manhattan
Bank as Calculation Agent for purposes of determining LIBOR for each
Interest Period and The Chase Manhattan Bank hereby 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 shall 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.
(b) The Calculation Agent shall be required to calculate on
each LIBOR Determination Date the interest rate for the Outstanding
Class A-4 Notes and Class A-5 Notes for the related Interest Period
(in each case, at a rate per annum rounded, if necessary, to the
nearest 1/100,000 of 1% (.0000001), with five one-millionths of a
percentage point rounded upward) and the amount of interest payable
(rounded to the nearest cent, with half a cent being rounded upwards)
on the related Distribution Date. The determination of such interest
rates by the Calculation Agent shall (in the absence of manifest
error) be final and binding upon all parties.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture
. This Indenture shall cease to be of further effect with respect to
the Notes except as to (i) rights of registration of transfer and
exchange, (ii) substitution of mutilated, destroyed, lost or stolen
Notes, (iii) rights of Noteholders to receive payments of principal
thereof and interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8, 3.10,
3.12 and 3.13, (v) the rights, obligations and immunities of the
Indenture Trustee hereunder (including the rights of the Indenture
Trustee under Section 6.7 and the obligations of the Indenture
Trustee under Section 4.3), and (vi) the rights of Noteholders and
Swap Counterparties as beneficiaries hereof with respect to the
property so deposited with the Indenture Trustee payable to all or
any of them, and the Indenture Trustee, on demand of and at the
expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the
Notes, when:
(A) either
(2) all Notes theretofore authenticated and delivered (other
than (i) Notes that have been destroyed, lost or stolen and
that have been replaced or paid as provided in Section 2.6 and
(ii) Notes for whose payment money has theretofore 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; or
(3) all Notes not theretofore delivered to the Indenture
Trustee for cancellation have become due and payable and the
Issuer has irrevocably deposited or caused to be irrevocably
deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United States
of America (which will mature prior to the date such amounts
are payable), in trust for such purpose, in an amount
sufficient without reinvestment to pay and discharge the
entire indebtedness on such Notes not theretofore delivered to
the Indenture Trustee for cancellation when due to the
applicable Final Scheduled Distribution Date or Redemption
Date (if Notes shall have been called for redemption pursuant
to Section 10.1(a)), as the case may be, and all fees due and
payable to the Indenture Trustee;
(B) the Issuer has paid or caused to be paid all
other sums payable hereunder and under any of the other Basic
Documents by the Issuer;
(C) the Issuer has delivered to the Indenture
Trustee an Officer's Certificate, an Opinion of Counsel and
(if required by the TIA or the Indenture Trustee) an
Independent Certificate from a firm of certified public
accountants, each meeting the applicable requirements of
Section 11.1(a) and, subject to Section 11.2, each stating
that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been
complied with; and
(D) the Issuer has delivered to the Indenture
Trustee an Opinion of Counsel to the effect that the
satisfaction and discharge of the Notes pursuant to this
Section 4.1 will not cause any Noteholder to be treated as
having sold or exchanged any of its Notes for purposes of
Section 1001 of the Code.
Upon the satisfaction and discharge of the Indenture pursuant to this
Section 4.1, at the request of the Owner Trustee, the Indenture
Trustee shall 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.
SECTION 4.2 Satisfaction, Discharge and Defeasance
of Notes. (a) Upon satisfaction of the conditions set forth in
subsection (b) below, the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Outstanding Notes, and
the provisions of this Indenture, as it relates to such Notes, shall
no longer be in effect (and the Indenture Trustee, at the expense of
the Issuer, shall execute proper instruments acknowledging the same),
except as to (i) rights of registration of transfer and exchange,
(ii) substitution of mutilated, destroyed, lost or stolen Notes,
(iii) rights of Noteholders to receive payments of principal thereof
and interest thereon, (iv) Sections 3.2, 3.3, 3.4, 3.5, 3.8, 3.10,
3.12 and 3.13, (v) the rights, obligations and immunities of the
Indenture Trustee hereunder (including the rights of the Indenture
Trustee under Section 6.7 and the obligations of the Indenture
Trustee under Section 4.3), and (vi) the rights of Noteholders and
Swap Counterparties as beneficiaries hereof with respect to the
property so deposited with the Indenture Trustee payable to all or
any of them.
(b) The satisfaction, discharge and defeasance of
the Notes pursuant to subsection (a) of this Section 4.2 is subject
to the satisfaction of all of the following conditions:
(i) the Issuer has deposited or caused to be deposited
irrevocably (except as provided in Section 4.4) with the
Indenture Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit
of the Noteholders, which, through the payment of interest and
principal in respect thereof in accordance with their terms
will provide, not later than one day prior to the due date of
any payment referred to below, money in an amount sufficient,
in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written
certification thereof delivered to the Indenture Trustee, to
pay and discharge the entire indebtedness on the Outstanding
Notes, for principal thereof and interest thereon to the date
of such deposit (in the case of Notes that have become due and
payable) or to the maturity of such principal and interest, as
the case may be, and to pay any amounts then due and payable
to the Swap Counterparties;
(ii) such deposit will not result in a breach or violation of,
or constitute an event of default under, any other agreement
or instrument to which the Issuer is bound;
(iii) no Event of Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit or on
the ninety-first (91st) day after such date;
(iv) the Issuer has delivered to the Indenture Trustee an
Opinion of Counsel to the effect that the satisfaction,
discharge and defeasance of the Notes pursuant to this Section
4.2 will not cause any Noteholder to be treated as having sold
or exchanged any of its Notes for purposes of Section 1001 of
the Code; and
(v) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the defeasance
contemplated by this Section 4.2 have been complied with.
SECTION 4.3 Application of Trust Money . All monies
deposited with the Indenture Trustee pursuant to Sections 4.1 and 4.2
shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either
directly or through any Note Paying Agent, as the Indenture Trustee
may determine, to the Noteholders of the particular Notes for the
payment or redemption of which such monies have been deposited with
the Indenture Trustee, of all sums due and to become due thereon for
principal and interest, and for payment to the Swap Counterparties of
all sums, if any, due or to become due to the Swap Counterparties
under and in accordance with this Indenture and the Interest Rate
Swap Agreements, but such monies need not be segregated from other
funds except to the extent required herein or in the Sale and
Servicing Agreement or required by law.
SECTION 4.4 Repayment of Monies Held by Note Paying
Agent . In connection with the satisfaction and discharge of this
Indenture with respect to the Notes, all monies then held by any Note
Paying Agent other than the Indenture Trustee under the provisions of
this Indenture with respect to such Notes shall, upon demand of the
Issuer, be paid to the Indenture Trustee to be held and applied
according to Section 3.3 and thereupon such Note Paying Agent shall
be released from all further liability with respect to such monies.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default . "Event of Default,"
wherever used herein, means the occurrence of any one of the
following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or
governmental body):
(i) default in the payment of any interest on any Note of the
Controlling Note Class when the same becomes due and payable
on each Distribution Date, and such default shall continue for
a period of five (5) days or more; or
(ii) default in the payment of the principal of or any
installment of the principal of any Note when the same becomes
due and payable; or
(iii) default in the observance or performance of any material
covenant or agreement of the Issuer made in this Indenture
(other than a covenant or agreement, a default in the
observance or performance of which is elsewhere in this
Section 5.1 specifically dealt with), or any representation or
warranty of the Issuer made in this Indenture or in any
certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any
material respect as of the time when the same shall have been
made, and such default shall continue or not be cured, or the
circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have
been eliminated or otherwise cured, for a period of sixty (60)
days or in the case of a materially incorrect representation
and warranty thirty (30) days, after there shall have been
given, by registered or certified mail, to the Issuer by the
Indenture Trustee or to the Issuer and the Indenture Trustee
by the Noteholders of Notes evidencing not less than 25% of
the Note Balance of the Controlling Note Class, a written
notice specifying such default or incorrect representation or
warranty and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(iv) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer
or any substantial part of the Indenture Trust Estate in an
involuntary case under any applicable federal or State
bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Indenture Trust
Estate, or ordering the winding-up or liquidation of the
Issuer's affairs, and such decree or order shall remain
unstayed and in effect for a period of sixty (60) consecutive
days; or
(v) the commencement by the Issuer of a voluntary case under
any applicable federal or State bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent
by the Issuer to the entry of an order for relief in an
involuntary case under any such law, or the consent by the
Issuer to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of
the Indenture Trust Estate, or the making by the Issuer of any
general assignment for the benefit of creditors, or the
failure by the Issuer generally to pay its debts as such debts
become due, or the taking of any action by the Issuer in
furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee (with a copy to any
Qualified Institution or Qualified Trust Institution (if not the
Indenture Trustee) maintaining any Trust Accounts), within five (5)
days after the occurrence thereof, written notice in the form of an
Officer's Certificate of any event which with the giving of notice
and the lapse of time would become an Event of Default under clause
(iii) above, its status and what action the Issuer is taking or
proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment. (a) If an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the
Noteholders of Notes evidencing not less than a majority of the Note
Balance of the Controlling Note Class may declare all the Notes to be
immediately due and payable, by a notice in writing to the Issuer
(and to the Indenture Trustee if given by Noteholders), and upon any
such declaration the unpaid principal amount of such Notes, together
with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable. If an Event
of Default specified in Section 5.1(iv) or (v) occurs, all unpaid
principal, together with all accrued and unpaid interest thereon, of
all the Notes, and all other amounts payable hereunder, shall
automatically become due and payable without any declaration or other
act on the part of the Indenture Trustee or any Noteholder. In the
event of such declaration or automatic acceleration, the Indenture
Trustee shall give prompt written notice to the Swap Counterparties.
(b) At any time after a declaration of acceleration
of maturity has been made and before a judgment or decree for payment
of the amount due has been obtained by the Indenture Trustee as
hereinafter provided in this Article V, the Noteholders of Notes
evidencing not less than a majority of the Note Balance of the
Controlling Note Class, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on all Notes and
all other amounts that would then be due hereunder or upon
such Notes or under the Interest Rate Swap Agreements if the
Event of Default giving rise to such acceleration had not
occurred;
(B) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel; 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
5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee . (a) The Issuer covenants that if
(i) there is an Event of Default relating to the nonpayment of any
interest on any Note when the same becomes due and payable, and such
Event of Default continues for a period of five (5) days, or (ii)
there is an Event of Default relating to the nonpayment in the
payment of the principal of or any installment of the principal of
any Note when the same becomes due and payable, the Issuer shall,
upon demand of the Indenture Trustee, pay to the Indenture Trustee,
for the benefit of the Noteholders, the whole amount then due and
payable on such Notes for principal and interest, with interest upon
the overdue principal and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of
interest at the applicable Note Interest Rate borne by the Notes and
in addition thereto such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents, attorneys and counsel.
(b) In case the Issuer shall fail forthwith 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 or other obligor upon such Notes and collect in
the manner provided by law out of the property of the Issuer or other
obligor upon such Notes, wherever situated, the monies adjudged or
decreed to be payable.
(c) If an Event of Default occurs and is continuing,
the Indenture Trustee, as more particularly provided in Section 5.4,
in its discretion, may proceed to protect and enforce its rights and
the rights of the Noteholders and the Swap Counterparties, by such
appropriate Proceedings as the Indenture Trustee shall deem most
effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture
or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the
Issuer or any other obligor upon the Notes or any Person having or
claiming an ownership interest in the Indenture Trust Estate,
Proceedings under Title 11 of the United States Code or any other
applicable federal or State bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Issuer or its
property or such other obligor or Person, or in case of any other
comparable judicial Proceedings relative to the Issuer or other
obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether
the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the
provisions of this Section 5.3, shall be entitled and empowered, by
intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the
Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Indenture Trustee (including any claim for reasonable
compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances and disbursements made, by the
Indenture Trustee and each predecessor Indenture Trustee,
except as a result of negligence or bad faith), of the Swap
Counterparties and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Noteholders and the Swap Counterparties
in any election of a trustee, a standby trustee or Person
performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property
payable or deliverable on any such claims and to pay all
amounts received with respect to the claims of the
Noteholders, the Swap Counterparties and of the Indenture
Trustee on their behalf; and
(iv) to 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 Swap Counterparties
or the Noteholders allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar
official in any such Proceeding is hereby authorized by each of such
Noteholders to make payments to the Indenture Trustee and, in the
event that the Indenture Trustee shall consent to the making of
payments directly to such Noteholders, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture
Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances and
disbursements made, by the Indenture Trustee and each predecessor
Indenture Trustee, except as a result of negligence or bad faith, and
any other amounts due the Indenture Trustee pursuant to Section 6.7.
(e) Nothing herein contained shall be deemed to
authorize the Indenture Trustee to authorize or consent to or vote
for or accept or adopt on behalf of any Noteholder or of any Swap
Counterparty any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the Interest Rate Swap Agreements
or the rights of any Noteholder or Swap Counterparty to authorize the
Indenture Trustee to vote in respect of the claim of any Noteholder
in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting 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 thereof in any trial or other Proceedings relative
thereto, and any such action or Proceedings instituted by the
Indenture Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment
of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, shall be for the ratable benefit of
the Noteholders and the Swap Counterparties in respect of which such
judgment has been recovered.
(g) In any Proceedings brought by the Indenture
Trustee (and also any Proceedings involving the interpretation of any
provision of this Indenture to which the Indenture Trustee shall be a
party), the Indenture Trustee shall be held to represent all the
Noteholders, and it shall not be necessary to make any Noteholder a
party to any such Proceedings.
SECTION 5.4 Remedies; Priorities . (a) If an Event
of Default shall have occurred and be continuing, the Indenture
Trustee may do one or more of the following (subject to Section 5.5):
(i) institute Proceedings 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 thereto,
whether by declaration or otherwise, enforce any judgment
obtained, and collect from the Issuer and any other obligor
upon such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the
Indenture Trust Estate;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce
the rights and remedies of the Indenture Trustee and the
Noteholders and Swap Counterparties; and
(iv) sell the Indenture Trust Estate or any portion thereof or
rights or interest therein, at one or more public or private
sales called and conducted in any manner permitted by law.
provided, however, the Indenture Trustee may not sell or otherwise
liquidate the Indenture Trust Estate unless:
(A) the Event of Default is of the type described in Section
5.1(i) or (ii); or
(B) with respect to any Event of Default described in Section
5.1(iv) and (v):
(1) the Noteholders of Notes evidencing 100% of the Note
Balance of the Controlling Note Class consent
thereto; or
(2) the proceeds of such sale or liquidation are
sufficient to pay in full the principal of and the
accrued interest on the Outstanding Notes and all
payments due and payable (including any Swap
Termination Payments) pursuant to the Interest Rate
Swap Agreements; or
(3) the Indenture Trustee
(x) determines (but shall have no obligation to
make such determination) that the Indenture
Trust Estate 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
(y) the Indenture Trustee obtains the consent of
Noteholders of Notes evidencing not less than
662/3% of the Note Balance of the Controlling
Note Class; or
(C) with respect to an Event of Default described in Section
5.1(iii):
(1) the Noteholders of all Outstanding Notes and the
Certificateholders of all outstanding Certificates
consent thereto; or
(2) the proceeds of such sale or liquidation are
sufficient to pay in full the principal of and
accrued interest on the Outstanding Notes and
outstanding Certificates and all payments due and
payable (including Swap Termination Payments)
pursuant to the Interest Rate Swap Agreements.
In determining such sufficiency or insufficiency with respect to
clauses (B)(2), (C)(2) and (B)(3)(x) above, the Indenture Trustee
may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of
the Indenture Trust Estate for such purpose.
(b) Notwithstanding the provisions of Section 8.2,
if the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the
following order:
(i) first, to the Indenture Trustee for amounts due under
Section 6.7;
(ii) second, to the Servicer for due and unpaid Servicing
Fees;
(iii) third, to the Swap Counterparties, the amount of the Net
Swap Payments then due under the Interest Rate Swap Agreements
(exclusive of any Swap Termination Payments);
(iv) fourth, with the same priority and ratably, in accordance
with the Principal Balance of the Class A Notes Outstanding
and the amount of any Swap Termination Payments due and
payable by the Issuer to the Swap Counterparties, (1) to
Noteholders of the Class A Notes, for amounts due and unpaid
on the Class A Notes in respect of interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable by the Issuer to the Noteholders of the Class
A Notes for interest, the Accrued Class A Note Interest and
(2) to the Swap Counterparties, any Swap Termination Payments,
provided, that if any amounts are remaining after such
allocations are made, such amounts will be allocated to the
Swap Counterparties pro rata based on the amount of their
respective Swap Termination Payments;
(v) fifth, to Noteholders of the Class A-1 Notes for amounts
due and unpaid on the Class A-1 Notes for principal, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Class A-1 Notes for principal,
until the principal amount of the Outstanding Class A-1 Notes
is reduced to zero;
(vi) sixth, to Noteholders of the Class A-2 Notes for amounts
due and unpaid on the Class A-2 Notes for principal, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Class A-2 Notes for principal,
until the principal amount of the Outstanding Class A-2 Notes
is reduced to zero;
(vii) seventh, to Noteholders of the Class A-3 Notes for
amounts due and unpaid on the Class A-3 Notes for principal,
ratably, without preference or priority of any kind, according
to the amounts due and payable on the Class A-3 Notes for
principal, until the principal amount of the Outstanding Class
A-3 Notes is reduced to zero;
(viii) eighth, to Noteholders of the Class A-4 Notes for
amounts due and unpaid on the Class A-4 Notes for principal,
ratably, without preference or priority of any kind, according
to the amounts due and payable on the Class A-4 Notes for
principal, until the principal amount of the Outstanding Class
A-4 Notes is reduced to zero;
(ix) ninth, to Noteholders of the Class A-5 Notes for amounts
due and unpaid on the Class A-5 Notes for principal,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the Class A-5
Notes for principal, until the principal amount of the
Outstanding Class A-5 Notes is reduced to zero;
(x) tenth, to Noteholders of the Class B Notes for amounts
due and unpaid on the Class B Notes in respect of interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the Class B Notes
for interest;
(xi) eleventh, to Noteholders of the Class B Notes for amounts
due and unpaid on the Class B Notes for principal, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Class B Notes for principal,
until the principal amount of the Outstanding Class B Notes is
reduced to zero;
(xii) twelfth, to the Issuer for amounts required to be
distributed to the Certificateholders pursuant to the Trust
Agreement and the Sale and Servicing Agreement; and
(xiii) thirteenth, to the Seller, any money or property
remaining after payment in full of the amounts described in
clauses (i)-(xii) of this Section 5.4(b).
The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 5.4. At least fifteen
(15) days before such record date, the Issuer shall mail to each
Noteholder and the Indenture Trustee a notice that states the record
date, the payment date and the amount to be paid.
(c) Upon a sale or other liquidation of the
Receivables in the manner set forth in Section 5.4(a), the Indenture
Trustee shall provide reasonable prior notice of such sale or
liquidation to each Noteholder and Certificateholder and to the Swap
Counterparties. A Noteholder or Certificateholder or Swap
Counterparty may submit a bid with respect to such sale.
SECTION 5.5 Optional Preservation of the Receivables
. If the Notes have been declared to be due and payable under Section
5.2 following an Event of Default, and such declaration and its
consequences have not been rescinded and annulled, the Indenture
Trustee may, but need not, elect to maintain possession of the
Indenture Trust Estate and apply proceeds as if there had been no
declaration of acceleration; provided, however, that funds on deposit
in the Collection Account at the time the Indenture Trustee makes
such election or deposited therein during the Collection Period in
which such election is made (including funds, if any, deposited
therein from the Reserve Account and the Payahead Account) shall be
applied in accordance with such declaration of acceleration in the
manner specified in Section 4.6(c) of the Sale and Servicing
Agreement. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of
principal of and interest on the Notes and any amounts owing to the
Swap Counterparties, and the Indenture Trustee shall take such desire
into account when determining whether or not to maintain possession
of the Indenture Trust Estate. In determining whether to maintain
possession of the Indenture Trust Estate, the Indenture Trustee may,
but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of
the Indenture Trust Estate for such purpose.
SECTION 5.6 Limitation of Suits . No Noteholder
shall have any right to institute any Proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Noteholder has previously given written
notice to the Indenture Trustee of a continuing Event of Default;
(b) the Noteholders of Notes evidencing not less
than 25% of the Note Balance of the Controlling Note Class have made
written request to the Indenture Trustee to institute such Proceeding
in respect of such Event of Default in its own name as Indenture
Trustee hereunder;
(c) such Noteholder or Noteholders have offered to
the Indenture Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in complying with such
request;
(d) the Indenture Trustee for sixty (60) days after
its receipt of such notice, request and offer of indemnity has failed
to institute such Proceedings; and
(e) no direction inconsistent with such written
request has been given to the Indenture Trustee during such sixty-day
period by the Noteholders of Notes evidencing not less than a
majority of the Note Balance of the Controlling Note Class.
It is understood and intended that no one or more
Noteholders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other Noteholders or to obtain or to
seek to obtain priority or preference over any other Noteholders or
to enforce any right under this Indenture, except in the manner
herein provided.
In the event the Indenture Trustee shall receive
conflicting or inconsistent requests and indemnity from two or more
groups of Noteholders, each evidencing less than a majority of the
Note Balance of the Controlling Note Class, the Indenture Trustee in
its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To
Receive Principal and Interest . Notwithstanding any other provisions
in this Indenture, any Noteholder shall have the right, which is
absolute and unconditional, to receive payment of the principal of
and interest, if any, on its Note on or after the respective due
dates thereof expressed in such Note or in this Indenture (or, in the
case of redemption, on or after the Redemption Date) and to institute
suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Noteholder.
SECTION 5.8 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 and in every such case the Issuer, the Indenture
Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their
former positions hereunder, and thereafter all rights and remedies of
the Indenture Trustee and the Noteholders shall continue as though no
such Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative . No
right or remedy herein conferred upon or reserved to the Indenture
Trustee or to the Noteholders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.10 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 shall impair any such right or remedy or constitute a waiver
of any such Default or Event of Default or any acquiescence therein.
Every right and remedy given 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 5.11 Control by Controlling Note Class of
Noteholders . The Noteholders of Notes evidencing not less than a
majority of the Note Balance of the Controlling Note Class shall have
the right to direct the time, method and place of conducting any
Proceeding for any remedy available to the Indenture Trustee with
respect to the Notes or exercising any trust or power conferred on
the Indenture Trustee; provided that:
(a) such direction shall not be in conflict with
any rule of law or with this Indenture;
(b) subject to the express terms of Section 5.4, any
direction to the Indenture Trustee to sell or liquidate the Indenture
Trust Estate shall be by Noteholders of Notes evidencing not less
than 100% of the Note Balance of the Controlling Note Class;
(c) if the conditions set forth in Section 5.5 have
been satisfied and the Indenture Trustee elects to retain the
Indenture Trust Estate pursuant to such Section 5.5, then any
direction to the Indenture Trustee by Noteholders of Notes evidencing
less than 100% of the Note Balance of the Controlling Note Class to
sell or liquidate the Indenture Trust Estate shall be of no force and
effect; and
(d) the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee that is not inconsistent with
such direction.
Notwithstanding the rights of Noteholders set forth in this Section
5.11, subject to Section 6.1, the Indenture Trustee need not take any
action that it determines might involve it in costs or expenses for
which it would not be adequately indemnified or expose it to personal
liability or might materially adversely affect or unduly prejudice
the rights of any Noteholders not consenting to such action.
SECTION 5.12 Waiver of Past Defaults . Prior to the
declaration of the acceleration of the maturity of the Notes as
provided in Section 5.2, the Noteholders of Notes evidencing not less
than a majority of the Note Balance of the Controlling Note Class may
waive any past Default or Event of Default and its consequences
except a Default (a) in the payment of principal of or interest on
any of the Notes or (b) in respect of a covenant or provision hereof
that cannot be amended, supplemented or modified without the consent
of each Noteholder. In the case of any such waiver, the Issuer, the
Indenture Trustee and the Noteholders shall be restored to their
former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other Default or impair any
right consequent thereto.
Upon any such waiver, such Default shall cease to
exist and be deemed to have been cured and not to have occurred, and
any Event of Default arising therefrom shall be deemed to have been
cured and not to have occurred, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs . All parties to
this Indenture agree, and each Noteholder by such Noteholder's
acceptance thereof shall be deemed to have agreed, that any 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, having due
regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 5.13 shall
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 principal
amount of the Notes Outstanding (or in the case of a right or remedy
under this Indenture which is instituted by the Controlling Note
Class, more than 10% of the Controlling Note 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 5.14 Waiver of Stay or Extension Laws . The
Issuer covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, or plead or in any manner
whatsoever, claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this
Indenture, and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not hinder, delay or impede the execution of
any power herein granted to the Indenture Trustee, but will suffer
and permit the execution of every such power as though no such law
had been enacted.
SECTION 5.15 Action on Notes . The Indenture
Trustee's right to seek and recover judgment on the Notes or under
this Indenture shall 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 shall 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 Indenture Trust Estate or upon any
of the assets of the Issuer. Any money or property collected by the
Indenture Trustee shall be applied in accordance with Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain
Obligations . (a) Promptly following a request from the Indenture
Trustee to do so, and at the Administrator's expense, the Issuer
shall take all such lawful action as the Indenture Trustee may
request to compel or secure the performance and observance by the
Seller and the Servicer, as applicable, of each of their obligations
to the Issuer under or in connection with the Sale and Servicing
Agreement, or by the Seller and Ford Credit, as applicable, of each
of their obligations under or in connection with the Purchase
Agreement, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection
with the Sale and Servicing Agreement and the Purchase Agreement, as
the case may be, to the extent and in the manner directed by the
Indenture Trustee, including the transmission of notices of default
on the part of the Seller, the Servicer or Ford Credit thereunder and
the institution of legal or administrative actions or proceedings to
compel or secure performance by the Seller or the Servicer of each of
their obligations under the Sale and Servicing Agreement or by the
Seller or Ford Credit of each of their obligations under the Purchase
Agreement.
(b) Promptly following a request from the Indenture
Trustee to do so, and at the Administrator's expense, the Issuer
shall take all such lawful action as the Indenture Trustee may
request to compel or secure the performance and observance by the
Swap Counterparties in accordance with the Interest Rate Swap
Agreements and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection
with the Interest Rate Swap Agreements to the extent and in the
manner directed by the Indenture Trustee, including the transmission
of notices of default thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance
by the Swap Counterparties of its obligations under the Interest Rate
Swap Agreement.
(c) If an Event of Default has occurred and is
continuing, the Indenture Trustee may, and at the direction (which
direction shall be in writing or by telephone, confirmed in writing
promptly thereafter) of the Noteholders of Notes evidencing not less
than 662/3% of the Note Balance of the Controlling Note Class shall,
exercise all rights, remedies, powers, privileges and claims of the
Issuer against the Seller or the Servicer under or in connection with
the Sale and Servicing Agreement, or against the Seller or Ford
Credit under or in connection with the Purchase Agreement, including
the right or power to take any action to compel or secure performance
or observance by the Seller, the Servicer or Ford Credit, as the case
may be, of each of their obligations to the Issuer thereunder and to
give any consent, request, notice, direction, approval, extension, or
waiver under the Sale and Servicing Agreement or the Purchase
Agreement, as the case may be, and any right of the Issuer to take
such action shall be suspended.
(d) If an Event of Default has occurred and is
continuing, the Indenture Trustee may, and at the direction (which
direction shall be in writing or by telephone, confirmed in writing
promptly thereafter) of the Noteholders of Notes evidencing not less
than 662/3% of the principal amount of the Controlling Note Class
shall, exercise all rights, remedies, powers, privileges and claims
of the Issuer against the Swap Counterparties including the right or
power to take any action to compel or secure performance or
observance by the Swap Counterparties of their obligations to the
Issuer under Interest Rate Swap Agreements and to give any consent,
request, notice, direction, approval, extension, or waiver under the
Interest Rate Swap Agreements and any right of the Issuer to take
such action shall 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 shall 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 exercise or use under the circumstances in
the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of
Default:
(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall 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 expressed
therein, upon certificates or opinions furnished to the
Indenture Trustee and, if required by the terms of this
Indenture, conforming to the requirements of this Indenture;
provided, however, that the Indenture Trustee shall examine
the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to
act or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section 6.1;
(ii) the Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Trustee Officer unless it
is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
5.11.
(d) The Indenture Trustee shall 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 or the terms of this Indenture or the Sale and Servicing
Agreement.
(f) No provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(g) Every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to
the Indenture Trustee shall be subject to the provisions of this
Section 6.1 and to the provisions of the TIA.
(h) The Indenture Trustee shall not be charged with
knowledge of any Event of Default unless either (1) a Trustee Officer
shall have actual knowledge of such Event of Default or (2) written
notice of such Event of Default shall have been given to the
Indenture Trustee in accordance with the provisions of this
Indenture.
SECTION 6.2 Rights of Indenture Trustee . (a) The
Indenture Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document believed by it to
be genuine and to have been signed or presented by the proper Person.
The Indenture Trustee need not investigate any fact or matters stated
in any such document.
(b) Before the Indenture Trustee acts or refrains
from acting, it may require an Officer's Certificate or an Opinion of
Counsel. The Indenture Trustee shall 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 execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys or a custodian or
nominee, and the Indenture Trustee shall not be responsible for any
misconduct or negligence on the part of, or for the supervision of,
any such agent, attorney, custodian or nominee appointed with due
care by it hereunder.
(d) The Indenture Trustee shall 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; provided, however,
that such action or omission by the Indenture Trustee does not
constitute willful misconduct, negligence or bad faith.
(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 shall be full and complete
authorization and protection from liability in respect to any action
taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) The Indenture Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by
this Indenture or to honor the request or direction of any of the
Noteholders pursuant to this Indenture unless such Noteholders shall
have offered to the Indenture Trustee reasonable security or
indemnity against the reasonable costs, expenses, disbursements,
advances and liabilities which might be incurred by it, its agents
and its counsel in compliance with such request or direction.
(g) Any request or direction of the Issuer mentioned
herein shall be sufficiently evidenced by an Issuer Request.
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 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 hereunder may do the same with like
rights.
SECTION 6.4 Indenture Trustee's Disclaimer . The
Indenture Trustee (i) shall not be responsible for, and makes no
representation as to, the validity or adequacy of this Indenture or
the Notes and (ii) shall 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 (all of which shall be taken as
statements of the Issuer) other than the Indenture Trustee's
certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs
and is continuing and if it is known to a Trustee Officer of the
Indenture Trustee, the Indenture Trustee shall mail to each
Noteholder notice of such Default within ninety (90) days after it
occurs. Except in the case of a Default in payment of principal of or
interest on any Note (including payments pursuant to the mandatory
redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Trustee
Officers in good faith determines that withholding the notice is in
the interests of the Noteholders.
SECTION 6.6 Reports by Indenture Trustee to
Noteholders . Upon delivery to the Indenture Trustee by the Servicer
of such information prepared by the Servicer pursuant to Section 3.9
of the Sale and Servicing Agreement as may be required to enable each
Noteholder to prepare its federal and State income tax returns, the
Indenture Trustee shall deliver such information to the Noteholders.
SECTION 6.7 Compensation and Indemnity . (a) The
Issuer shall, or shall cause the Administrator to, pay to the
Indenture Trustee from time to time reasonable compensation for its
services. The Indenture Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The
Issuer shall, or shall cause the Administrator to, reimburse the
Indenture Trustee for all reasonable out-of-pocket expenses incurred
or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of
the Indenture Trustee's agents, counsel, accountants and experts. The
Issuer shall, or shall cause the Administrator to, indemnify the
Indenture Trustee for, and to hold it harmless against, any and all
loss, liability or expense (including attorneys' fees) incurred by it
in connection with the administration of this trust and the
performance of its duties hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
The Indenture Trustee shall notify the Issuer and the Administrator
promptly of any claim for which it may seek indemnity. Failure by the
Indenture Trustee to so notify the Issuer and the Administrator shall
not relieve the Issuer or the Administrator of its obligations
hereunder. The Issuer shall, or shall cause the Administrator to,
defend any such claim, and the Indenture Trustee may have separate
counsel and the Issuer shall, or shall cause the Administrator to,
pay the fees and expenses of such counsel. Neither the Issuer nor the
Administrator need reimburse any expense or indemnity against any
loss, liability or expense incurred by the Indenture Trustee through
the Indenture Trustee's own willful misconduct, negligence or bad
faith.
(b) The Issuer's payment obligations to the
Indenture Trustee pursuant to this Section 6.7 shall survive the
resignation or removal of the Indenture Trustee and the discharge of
this Indenture. When the Indenture Trustee incurs expenses after the
occurrence of a Default specified in Section 5.1(iv) or (v) with
respect to the Issuer, the expenses 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, shall become effective
until the acceptance of appointment by the successor Indenture
Trustee pursuant to this Section 6.8 and payment in full of all sums
due to the Indenture Trustee pursuant to Section 6.7. The Indenture
Trustee may resign at any time by so notifying the Issuer. The
Noteholders of Notes evidencing not less than a majority in Note
Balance of the Controlling Note Class may remove the Indenture
Trustee without cause by so notifying the Indenture Trustee and the
Issuer and may appoint a successor Indenture Trustee. The Issuer
shall 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 otherwise becomes incapable of
acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture
Trustee in such event being referred to herein as the retiring
Indenture Trustee), the Issuer shall promptly appoint a successor
Indenture Trustee.
(b) Any successor Indenture Trustee shall deliver a
written acceptance of its appointment to the retiring Indenture
Trustee and to the Issuer and shall concurrently deliver a copy of
such acceptance to each Swap Counterparty. Thereupon, if all sums due
the retiring Indenture Trustee pursuant to Section 6.7 have been paid
in full, the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall
have all the rights, powers and duties of the Indenture Trustee under
this Indenture. The successor Indenture Trustee shall mail a notice
of its succession to Noteholders. If all sums due the retiring
Indenture Trustee pursuant to Section 6.7 have been paid in full, the
retiring Indenture Trustee shall promptly transfer all property held
by it as Indenture Trustee to the successor Indenture Trustee.
(c) If a successor Indenture Trustee does not take
office within sixty (60) days after the retiring Indenture Trustee
resigns or is removed, the retiring Indenture Trustee, the Issuer or
the Noteholders of Notes evidencing not less than a majority in Note
Balance of the Controlling Note Class may petition any court of
competent jurisdiction for the appointment of a successor Indenture
Trustee. If the Indenture Trustee fails to comply with Section 6.11,
any Noteholder who has been a bona fide Noteholder for at least six
(6) months may petition any court of competent jurisdiction for the
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee.
(d) Notwithstanding the replacement of the Indenture
Trustee pursuant to this Section 6.8, the obligations of the Issuer
and the Administrator under Section 6.7 shall 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 its corporate trust
business or assets to, another corporation or banking association,
the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Indenture
Trustee; provided that such corporation or banking association shall
be otherwise qualified and eligible under Section 6.11. The Indenture
Trustee shall provide the Rating Agencies with prior written notice
of any such transaction.
(b) In case at the time such successor or successors
by merger, conversion or consolidation to the Indenture Trustee shall
succeed to the trusts created by this Indenture any of the Notes
shall have been authenticated but not delivered, any such successor
to the Indenture Trustee may adopt the certificate of authentication
of any predecessor trustee, and deliver such Notes so authenticated;
and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may
authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Indenture Trustee.
In all such cases such certificates shall have the full force which
it is provided anywhere in the Notes or in this Indenture that the
certificate of the Indenture Trustee shall have.
SECTION 6.10 Appointment of Co-Indenture Trustee or
Separate Indenture Trustee . (a) Notwithstanding any other provisions
of this Indenture, at any time, for the purpose of meeting any legal
requirement of any jurisdiction in which any part of the Indenture
Trust Estate may at the time be located, the Indenture Trustee shall
have the power and may execute and deliver an instrument to appoint
one or more Persons to act as a co-trustee or co-trustees, or
separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity and
for the benefit of the Noteholders and the Swap Counterparties, such
title to the Indenture Trust Estate, or any part hereof, and, subject
to the other provisions of this Section 6.10, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder
shall 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 co-trustee or separate trustee shall be required
under Section 6.8.
(b) Every separate trustee and co-trustee shall, to
the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or
imposed upon and exercised or performed by the Indenture
Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee
shall 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 shall 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 Indenture Trust Estate
or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Indenture
Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder;
and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to
the Indenture Trustee shall be deemed to have been given to each of
the then separate trustees and co-trustees, as effectively as if
given to each of them. Every instrument appointing any separate
trustee or co-trustee shall refer to this Indenture and the
conditions of this Article VI. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall 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 therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to
the conduct of, affecting the liability of, or affording protection
to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any
time constitute the Indenture Trustee its agent or attorney-in-fact
with full power and authority, to the extent not prohibited by law,
to do any lawful act under or in respect of this Agreement on its
behalf and in its name. If any separate trustee or co-trustee shall
die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall 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 shall at all times satisfy the requirements of TIA
Section 310(a). The Indenture Trustee or its parent shall have a
combined capital and surplus of at least $50,000,000 as set forth in
its most recent published annual report of condition and shall have a
long-term debt rating of investment grade by each of the Rating
Agencies or shall otherwise be acceptable to each of the Rating
Agencies. The Indenture Trustee shall comply with TIA Section 310(b).
(b) Within ninety (90) days after ascertaining the
occurrence of an Event of Default which shall not have been cured or
waived, unless authorized by the Commission, the Indenture Trustee
shall resign with respect to the Class A Notes and/or the Class B
Notes in accordance with Section 6.8 of this Indenture, and the
Issuer shall appoint a successor Indenture Trustee for one or both of
such Classes, as applicable, so that there will be separate Indenture
Trustees for the Class A Notes and the Class B Notes. In the event
the Indenture Trustee fails to comply with the terms of the preceding
sentence, the Indenture Trustee shall comply with clauses (ii) and
(iii) of TIA Section 310(b).
(c) In the case of the appointment hereunder of a
successor Indenture Trustee with respect to any Class of Notes
pursuant to this Section 6.11, the Issuer, the retiring Indenture
Trustee and the successor Indenture Trustee with respect to such
Class of Notes shall execute and deliver an indenture supplemental
hereto wherein each successor Indenture Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in,
the successor Indenture Trustee all the rights, powers, trusts and
duties of the retiring Indenture Trustee with respect to the Notes of
the Class to which the appointment of such successor Indenture
Trustee relates, (ii) if the retiring Indenture Trustee is not
retiring with respect to all Classes of Notes, shall contain such
provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Indenture
Trustee with respect to the Notes of each Class as to which the
retiring Indenture Trustee is not retiring shall continue to be
vested in the Indenture Trustee and (iii) shall add to or change any
of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more
than one Indenture Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Indenture
Trustees co-trustees of the same trust and that each such Indenture
Trustee shall be a trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any
other such Indenture Trustee; and upon the removal of the retiring
Indenture Trustee shall become effective to the extent provided
herein.
SECTION 6.12 Preferential Collection of Claims
Against Issuer . The Indenture Trustee shall comply with TIA Section
311(a), excluding any creditor relationship listed in TIA Section
311(b). An Indenture Trustee who has resigned or been removed shall
be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.13 Interest Rate Swap Provisions. (a) The
Issuer has entered into the Interest Rate Swap Agreements, each in a
form satisfactory to the Rating Agencies, to hedge the floating rate
interest expense on the Class A-4 Notes and Class A-5 Notes. The
Issuer may, from time to time, enter into one or more replacement
Interest Rate Swap Agreements with one or more replacement Swap
Counterparties in the event that any Interest Rate Swap Agreement is
terminated prior to its scheduled expiration pursuant to an Event of
Default or Termination Event (each such term as defined in the
Interest Rate Swap Agreements). The notional amounts of the Interest
Rate Swaps will be determined as follows:
(i) The notional amount of the Interest Rate Swap hedging the interest
expense on the Class A-4 Notes will be initially equal to the principal
amount of the Class A-4 Notes on the Closing Date and will be reduced
by the amount of any principal payments on the Class A-4 Notes.
(ii) The notional amount of the Interest Rate Swap hedging the interest
expense on the Class A-5 Notes will be initially equal to the principal
amount of the Class A-5 Notes on the Closing Date and will be reduced
by the amount of any principal payments on the Class A-5 Notes.
(b) On each Distribution Date, Net Swap Payments
(other than Swap Termination Payments) relating to the Interest Rate
Swaps will rank senior to interest payments on the Class A Notes, and
Swap Termination Payments will rank pari passu with interest payments
on the Class A Notes, all as set forth in Section 8.2 hereof and
Section 4.7 of the Sale and Servicing Agreement.
(c) The Indenture Trustee will be responsible for
remitting Net Swap Payments and any Swap Termination Payments payable
to each Swap Counterparty and for collecting the Net Swap Receipts
and any Swap Termination Payments payable to the Issuer, as
applicable, on each Distribution Date.
(d) In the event that a Swap Counterparty is
required to collateralize any Interest Rate Swap transaction pursuant
to the terms of the applicable Interest Rate Swap Agreement, the
Indenture Trustee, upon written request of the Administrator, shall
establish individual collateral accounts and will hold any securities
deposited therein in trust and will invest any cash amounts in
accordance with the provisions of the Interest Rate Swap Agreement.
(e) The Administrator shall calculate and provide
written notification to the related Swap Counterparty and to the
Indenture Trustee of the notional amount of each Interest Rate Swap
as of each Distribution Date on or before the twelfth day of the
month of the related Distribution Date. The Administrator shall also
obtain the calculation of LIBOR from the Calculation Agent under this
Agreement and shall calculate the amount, for each Distribution Date,
of all Net Swap Payments, Net Swap Receipts, and Swap Termination
Payments payable on each Distribution Date and shall provide written
notification of such amounts to the related Swap Counterparties and
to the Indenture Trustee prior to such Distribution Date. At least
five days before the effective date of any proposed amendment or
supplement to an Interest Rate Swap Agreement, the Administrator
shall provide the Rating Agencies with a copy of such amendment or
supplement. Unless the amendment or supplement clarifies any term or
provision, corrects any inconsistency, cures any ambiguity, or
corrects any typographical error in such Interest Rate Swap
Agreement, an amendment or supplement to such Interest Rate Swap
Agreement will be effective only after satisfaction of the Rating
Agency Condition.
(f) Promptly following the early termination of any
Interest Rate Swap Agreement due to an Event of Default or
Termination Event (as each such term is defined in such Interest Rate
Swap Agreement), the Issuer will use reasonable efforts to enter into
a replacement interest rate swap agreement on terms similar to those
of such Interest Rate Swap Agreement with an eligible swap
counterparty unless the Indenture Trustee sells the Indenture Trust
Estate pursuant to Section 5.4(a)(iv). The Issuer shall take action
as the Indenture Trustee may request to compel or secure the
performance and observance by the Swap Counterparties of their
obligations under the Interest Rate Swap Agreements, as provided in
Section 5.16(b) and 5.16(d).
(g) Each Interest Rate Swap Agreement shall provide
that a termination event will occur thereunder if (a) the long-term
rating of the Swap Counterparty is downgraded below a rating of "Aa3"
by Moody's or "AA-" by Fitch, or is suspended or withdrawn by either
Rating Agency, (b) the short-term rating of the Swap Counterparty is
downgraded below a rating of "A-1" by S&P, or is suspended or
withdrawn by such Rating Agency, or (c) notice is given to the
Indenture Trustee or Administrator by any Rating Agency that the
credit support, if any, with respect to the Swap Counterparty is no
longer deemed adequate to maintain the then-current ratings on the
Class A Notes, and within 30 days of any such downgrade, suspension,
withdrawal or notification, the Swap Counterparty fails to either (i)
deliver or post collateral acceptable to the Issuer in amounts
sufficient to secure its obligations under such Interest Rate Swap
Agreement, (ii) assign its rights and obligations under such Interest
Rate Swap Agreement to a replacement counterparty acceptable to the
Issuer or (iii) establish other arrangements necessary, if any, in
each case so that the Rating Agencies confirm the ratings of the
Notes that were in effect immediately prior to such downgrade,
suspension, withdrawal or notification.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish Indenture Trustee
Names and Addresses of Noteholders . The Issuer shall furnish or
cause to be furnished to the Indenture Trustee (a) not more than five
(5) days after each Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses
of the Noteholders as of such Record Date and (b) at such other times
as the Indenture Trustee may request in writing, within thirty (30)
days after receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than ten (10) days
prior to the time such list is furnished; provided, however, that (i)
so long as the Indenture Trustee is the Note Registrar, no such list
shall be required to be furnished and (ii) no such list shall be
required to be furnished with respect to Noteholders of Book-Entry
Notes.
SECTION 7.2 Preservation of Information;
Communications to Noteholders . (a) The Indenture Trustee shall
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 as provided in 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 as provided in such Section 7.1 upon
receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA
Section 312(b) with other Noteholders with respect to their rights
under this Indenture or under the Notes. Upon receipt by the
Indenture Trustee of any request by three or more Noteholders or by
one or more Noteholders of Notes evidencing not less than 25% of the
Note Balance of the Notes Outstanding to receive a copy of the
current list of Noteholders (whether or not made pursuant to TIA
Section 312(b)), the Indenture Trustee shall promptly notify the
Administrator thereof by providing to the Administrator a copy of
such request and a copy of the list of Noteholders produced in
response thereto.
(c) The Issuer, the Indenture Trustee and the Note
Registrar shall have the protection of TIA Section 312(c).
SECTION 7.3 Reports by Issuer. (a) The Issuer
shall:
(i) file with the Indenture Trustee, within fifteen (15) days
after the Issuer is required to file the same with the
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 Commission may from
time to time by rules and regulations prescribe) that the
Issuer may be required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with the rules and regulations prescribed from time
to time by the 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
required from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in
TIA Section 313(c)) such summaries of any information,
documents and reports required to be filed by the Issuer
pursuant to clauses (i) and (ii) of this Section 7.3(a) and by
rules and regulations prescribed from time to time by the
Commission.
(b) Unless the Issuer otherwise determines, the
fiscal year of the Issuer shall correspond to the calendar year.
SECTION 7.4 Reports by Indenture Trustee . (a) If
required by TIA Section 313(a), within sixty (60) days after each May
15, beginning with May 15, 2001, the Indenture Trustee shall mail to
each Noteholder as required by TIA Section 313(c) a brief report
dated as of such date that complies with TIA Section 313(a). The
Indenture Trustee also shall comply with TIA Section 313(b).
(b) A copy of each report at the time of its mailing
to Noteholders shall be filed by the Indenture Trustee with the
Commission and each stock exchange, if any, on which the Notes are
listed. The Issuer shall 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 . Except as
otherwise expressly provided herein, the Indenture Trustee may demand
payment or delivery of, and shall 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 shall apply all such money
received by it as provided in this Indenture and the Sale and
Servicing Agreement. Except as otherwise expressly provided in this
Indenture, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of the
Indenture Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate Proceedings. Any such
action shall be without prejudice to any right to claim a Default or
Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
SECTION 8.2 Trust Accounts and Payahead Account .
(a) On or prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain the Trust Accounts and the
Payahead Account as provided in Sections 4.1 and 4.7 of the Sale and
Servicing Agreement.
(b) On or before each Distribution Date, the
Servicer shall deposit all Available Collections with respect to the
Collection Period preceding such Distribution Date in the Collection
Account as provided in Sections 4.2, 4.3, 4.4 and 4.5 of the Sale and
Servicing Agreement. On or before each Distribution Date, all amounts
required to be withdrawn from the Reserve Account and deposited in
the Collection Account pursuant to Section 4.5 of the Sale and
Servicing Agreement shall be withdrawn by the Indenture Trustee from
the Reserve Account and deposited to the Collection Account. The
Indenture Trustee shall direct the applicable Swap Counterparties to
deposit, and shall otherwise cause to be deposited on each
Distribution Date, any Net Swap Receipts then due and payable in the
Collection Account. In addition, the Indenture Trustee shall direct
the applicable Swap Counterparties to deposit, and shall otherwise
cause to be deposited, all Swap Termination Payments paid by Swap
Counterparties to the Trust into the Collection Account; provided,
that, upon direction of the Issuer, the Indenture Trustee may retain
a part or all of such Swap Termination Payments to be applied as an
initial payment to a replacement Swap Counterparty or Swap
Counterparties, and provided further that the Indenture Trustee shall
promptly deposit any retained amounts that are not so applied to the
Collection Account.
(c) On each Distribution Date, the Indenture Trustee
(based on the information contained in the Servicer's Certificate
delivered on or before the related Determination Date pursuant to
Section 3.9 of the Sale and Servicing Agreement) shall make the
following withdrawals from the Collection Account and make deposits,
distributions and payments, to the extent of funds on deposit in the
Collection Account with respect to the Collection Period preceding
such Distribution Date (including funds, if any, deposited therein
from the Reserve Account and the Payahead Account), in the following
order of priority:
(i) first, to the Servicer, the Servicing Fee and all unpaid
Servicing Fees from prior Collection Periods;
(ii) second, to the Swap Counterparties, the Net Swap Payment
(if any);
(iii) third, with the same priority and ratably, in accordance
with the outstanding principal balance of the Class A Notes
and the amount of any Swap Termination Payment due and payable
by the Issuer to the Swap Counterparties,
(1) to the Noteholders of Class A Notes, the
Accrued Class A Note Interest,
(2) to the Swap Counterparties, any Swap
Termination Payments;
provided, that, if any amounts allocable to the Class A Notes
are not needed to pay interest due on such Notes, such amounts
shall be applied to pay the portion, if any, of any Swap
Termination Payments remaining unpaid pro rata based on the
amount of the Swap Termination Payments, and provided,
further, that if there are not sufficient funds available to
pay the entire amount of the Accrued Class A Note Interest,
the amounts available shall be applied to the payment of such
interest on the Class A Notes on a pro rata basis;
(iv) fourth, to the Principal Distribution Account, the First
Priority Principal Distribution Amount, if any;
(v) fifth, to the Noteholders of Class B Notes, the Accrued
Class B Note Interest; provided that if there are not
sufficient funds available to pay the entire amount of the
Accrued Class B Note Interest, the amounts available shall be
applied to the payment of such interest on the Class B Notes
on a pro rata basis;
(vi) sixth, to the Principal Distribution Account, the Second
Priority Principal Distribution Amount, if any;
(vii) seventh, to the Certificate Interest Distribution
Account, the Accrued Class C Certificate Interest;
(viii) eigth, to the Certificate Interest Distribution
Account, the Accrued Class D Certificate Interest;
(ix) ninth, to the Reserve Account, the amount, if any,
required to reinstate the amount in the Reserve Account up to
the Specified Reserve Balance;
(x) tenth, to the Principal Distribution Account, the Regular
Principal Distribution Amount, if any; and
(xi) eleventh, to the Seller, any funds remaining on deposit
in the Collection Account with respect to the Collection
Period preceding such Distribution Date.
Notwithstanding any other provision of this Article VIII, and subject
to Section 5.4(b), (A) following the occurrence and during the
continuation of an Event of Default specified in Section 5.1(i),
5.1(ii), 5.1(iv) or 5.1(v) which has resulted in an acceleration of
the Notes (or following the occurrence of any such event after an
Event of Default specified in Section 5.1(iii) has occurred and the
Notes have been accelerated), the Servicer shall instruct the
Indenture Trustee to transfer the funds on deposit in the Collection
Account remaining after the application of clauses (i), (ii) and
(iii) above to the Principal Distribution Account to the extent
necessary to reduce the principal amount of all the Class A Notes to
zero, (B) following the occurrence and during the continuation of an
Event of Default specified in Section 5.1(iii), which has resulted in
an acceleration of the Notes, the Servicer shall instruct the
Indenture Trustee to transfer the funds on deposit in the Collection
Account remaining after the application of clauses (i), (ii), (iii),
(iv) and (v) above to the Principal Distribution Account to the
extent necessary to reduce the principal amount of all the Notes to
zero, and (C) in the case of an event described in clause (A) or (B),
the Certificateholders will not receive any distributions of
principal or interest until the principal amount and accrued interest
on all the Notes has been paid in full.
(d) On each Distribution Date, the Indenture Trustee
(based on the information contained in the Servicer's Certificate
delivered on or before the related Determination Date pursuant to
Section 3.9 of the Sale and Servicing Agreement) shall withdraw the
funds on deposit in the Principal Distribution Account with respect
to the Collection Period preceding such Distribution Date and make
distributions and payments in the following order of priority:
(i) first, to the Noteholders of the Class A-1 Notes in
reduction of principal until the principal amount of the
Outstanding Class A-1 Notes has been paid in full; provided
that if there are not sufficient funds available to pay the
principal amount of the Outstanding Class A-1 Notes in full,
the amounts available shall be applied to the payment of
principal on the Class A-1 Notes on a pro rata basis;
(ii) second, to the Noteholders of the Class A-2 Notes in
reduction of principal until the principal amount of the
Outstanding Class A-2 Notes has been paid in full; provided
that if there are not sufficient funds available to pay the
principal amount of the Outstanding Class A-2 Notes in full,
the amounts available shall be applied to the payment of
principal on the Class A-2 Notes on a pro rata basis;
(iii) third, to the Noteholders of the Class A-3 Notes in
reduction of principal until the principal amount of the
Outstanding Class A-3 Notes has been paid in full; provided
that if there are not sufficient funds available to pay the
principal amount of the Outstanding Class A-3 Notes in full,
the amounts available shall be applied to the payment of
principal on the Class A-3 Notes on a pro rata basis;
(iv) fourth, to the Noteholders of the Class A-4 Notes in
reduction of principal until the principal amount of the
Outstanding Class A-4 Notes has been paid in full; provided
that if there are not sufficient funds available to pay the
principal amount of the Outstanding Class A-4 Notes in full,
the amounts available shall be applied to the payment of
principal on the Class A-4 Notes on a pro rata basis;
(v) fifth, to the Noteholders of the Class A-5 Notes in
reduction of principal until the principal amount of the
Outstanding Class A-5 Notes has been paid in full; provided
that if there are not sufficient funds available to pay the
principal amount of the Outstanding Class A-5 Notes in full,
the amounts available shall be applied to the payment of
principal on the Class A-5 Notes on a pro rata basis;
(vi) sixth, to the Noteholders of the Class B Notes in
reduction of principal until the principal amount of the
Outstanding Class B Notes has been paid in full; provided that
if there are not sufficient funds available to pay the
principal amount of the Outstanding Class B Notes in full, the
amounts available shall be applied to the payment of principal
on the Class B Notes on a pro rata basis;
(vii) seventh, to the Certificate Principal Distribution
Account, in reduction of the Certificate Balance of the Class
C Certificates, until the Certificate Balance of the Class C
Certificates has been reduced to zero;
(viii) eighth, to the Certificate Principal Distribution
Account, in reduction of the Certificate Balance of the Class
D Certificates, until the Certificate Balance of the Class D
Certificates has been reduced to zero; and
(ix) ninth, to the Seller, any funds remaining on deposit in
the Principal Distribution Account.
SECTION 8.3 General Provisions Regarding Accounts .
(a) So long as no Default or Event of Default shall have occurred and
be continuing, all or a portion of the funds in the Collection
Account and the Payahead Account shall be invested by the Qualified
Institution or Qualified Trust Institution maintaining such account
(which initially is the Indenture Trustee) at the direction of the
Servicer in Permitted Investments as provided in Section 4.1 of the
Sale and Servicing Agreement. All income or other gain (net of losses
and investment expenses) from investments of monies deposited in the
Collection Account, the Payahead Account and the Reserve Account
shall be withdrawn by the Indenture Trustee from such accounts (but
only under the circumstances set forth in Sections 4.5(b) and 4.7(c)
in the Sale and Servicing Agreement in the case of the Reserve
Account) and distributed as provided in Sections 4.1 and 4.7 of the
Sale and Servicing Agreement. The Servicer shall not direct the
Qualified Institution or Qualified Trust Institution maintaining the
Collection Account or Payahead Account to make any investment of any
funds or to sell any investment held in any of the Trust Accounts
unless the security interest Granted and perfected in such account
will continue to be perfected in such investment or the proceeds of
such sale, in either case without any further action by any Person,
and, in connection with any direction by the Servicer to make any
such investment or sale, if requested by the applicable Qualified
Institution or Qualified Trust Institution, the Issuer shall deliver
to such Qualified Institution or Qualified Trust Institution an
Opinion of Counsel, acceptable to such Qualified Institution or
Qualified Trust Institution, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee
shall not in any way be held liable by reason of any insufficiency in
any of the Trust Accounts or in the Payahead Account resulting from
any loss on any Permitted Investment included therein, 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 accordance with their terms. In addition, the Indenture
Trustee shall have 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 shall not in any way be held 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).
(c) If the Indenture Trustee is the Qualified
Institution or Qualified Trust Institution maintaining the Collection
Account or the Payahead Account and (i) the Servicer shall have
failed to give investment directions for any funds on deposit in the
Collection Account or the Payahead Account to the Indenture Trustee
by 11:00 a.m. New York Time (or such other time as may be agreed by
the Issuer and the Indenture Trustee) on the Business Day preceding
each Distribution Date, (ii) to the knowledge of a Trust Officer of
the Indenture Trustee, a Default or Event of Default shall have
occurred and be continuing with respect to the Notes but the Notes
shall not have been declared due and payable pursuant to Section 5.2
or (iii) the Notes shall have been declared due and payable following
an Event of Default amounts collected or receivable from the
Indenture Trust Estate are being applied in accordance with Section
5.4 as if there had not been such a declaration, then in each case
the Indenture Trustee shall, to the fullest extent practicable,
invest and reinvest funds in the Collection Account and the Payahead
Account, as the case may be, in one or more Permitted Investments
described in clause (b) of the definition thereof.
SECTION 8.4 Release of Indenture Trust Estate . (a)
Subject to the payment of its fees and expenses pursuant to Section
6.7, the Indenture Trustee may, and when required by the provisions
of this Indenture shall, execute instruments to release property from
the lien of this Indenture, or convey the Indenture Trustee's
interest in the same, in a manner and under circumstances that are
not inconsistent with the provisions of this Indenture. No party
relying upon an instrument executed by the Indenture Trustee as
provided in this Article VIII shall be bound to ascertain the
Indenture Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as
there are no Notes Outstanding and all sums due the Indenture Trustee
pursuant to Section 6.7 have been paid in full and all amounts
(including Swap Termination Payments) owing under each Interest Rate
Swap Agreement have been paid in full, release any remaining portion
of the Indenture Trust Estate that secured the Issuer's obligations
under the Notes and the Interest Rate Swap Agreements from the lien
of this Indenture and release to the Issuer or any other Person
entitled thereto any funds then on deposit in the Trust Accounts. The
Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.4(b) only upon receipt of an
Issuer Request accompanied by confirmation that all amounts owing by
the Issuer under each Interest Rate Swap Agreement have been paid,
and an Officer's Certificate and an Opinion of Counsel and (if
required by the TIA) Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1) meeting the applicable requirements of
Section 11.1.
(c) 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, acknowledges that from time to time the Indenture Trustee shall
release the lien of this Indenture on any Receivable to be sold to
(i) the Seller in accordance with Section 2.3 of the Sale and
Servicing Agreement and (ii) to the Servicer in accordance with
Section 3.7 of the Sale and Servicing Agreement.
SECTION 8.5 Opinion of Counsel . The Indenture
Trustee shall receive at least seven (7) days notice when requested
by the Issuer to take any action pursuant to Section 8.4(a),
accompanied by copies of any instruments involved, and the Indenture
Trustee shall also require, except in connection with any action
contemplated by Section 8.4(c), as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action,
outlining the steps required to complete the same, and concluding
that all conditions precedent to the taking of such action have been
complied with and such action will not materially and adversely
impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; provided, however,
that such Opinion of Counsel shall not be required to express an
opinion as to the fair value of the Indenture Trust Estate. Counsel
rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee in connection
with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent
of Noteholders . (a) Without the consent of the Noteholders but with
prior notice to the Rating Agencies, the Issuer and the Indenture
Trustee, when authorized by an Issuer Order, at any time and from
time to time, may enter into one or more indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture
Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following
purposes:
(i) to correct or amplify the description of any property at
any time 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 to the lien of this Indenture
additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer,
and the assumption by any such successor of the covenants of
the Issuer herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit
of the Noteholders, or to surrender any right or power herein
conferred upon the Issuer;
(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 herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any
supplemental indenture or to make any other provisions with
respect to matters or questions arising under this Indenture
or under any supplemental indenture which shall not be
inconsistent with the provisions of the Indenture; provided
that such action shall not materially adversely affect the
interests of the Noteholders or adversely affect the rights or
obligations of any Swap Counterparty under the related
Interest Rate Swap Agreement or modify or impair the ability
of the Issuer to fully perform any of its obligations under
any Interest Rate Swap Agreement;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to
the Notes and to add to or change any of the provisions of
this Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to affect the
qualification of this Indenture under the TIA or under any
similar federal statute hereafter enacted and to add to this
Indenture such other provisions as may be expressly required
by the TIA.
The Indenture Trustee is hereby authorized to join
in the execution of any such supplemental indenture and to make any
further appropriate agreements and stipulations that may be therein
contained.
(b) The Issuer and the Indenture Trustee, when
authorized by an Issuer Order, may, also without the consent of any
of the Noteholders but with prior notice to the Rating Agencies,
enter into an indenture or indentures supplemental hereto 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; provided,
however, that (i) such action shall not, as evidenced by an Opinion
of Counsel, adversely affect in any material respect the interests of
any Noteholder, (ii) (x) such action shall not, as evidenced by an
Opinion of Counsel, adversely affect the rights or obligations of any
Swap Counterparty under the Interest Rate Swap Agreements or modify
the obligations of or impair the ability of the Issuer to fully
perform any of its obligations under the Interest Rate Swap Agreement
or (y) the Swap Counterparty shall have consented thereto (and a Swap
Counterparty's consent will be deemed to have been given if the Swap
Counterparty does not object in writing within ten Business Days of
receipt of a written request for such consent), (iii) the Rating
Agency Condition shall have been satisfied with respect to such
action and (iv) such action shall not, as evidenced by an Opinion of
Counsel, cause the Issuer to be characterized for federal or any then
Applicable Tax State income tax purposes as an association taxable as
a corporation or otherwise have any material adverse impact on the
federal or any then Applicable Tax State income taxation of any Notes
Outstanding or outstanding Certificates or any Noteholder or
Certificateholder.
SECTION 9.2 Supplemental Indentures with Consent of
Noteholders . The Issuer and the Indenture Trustee, when authorized
by an Issuer Order, also may, with prior notice to the Rating
Agencies and the consent of a majority of the Note Balance of the
Controlling Note Class, enter into an indenture or indentures
supplemental hereto 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; provided, however, that (i) the Rating Agency
Condition shall have been satisfied with respect to such action and
(ii) such action shall not, as evidenced by an Opinion of Counsel,
cause the Issuer to be characterized for federal or any then
Applicable Tax State income tax purposes as an association taxable as
a corporation or otherwise have any material adverse impact on the
federal or any then Applicable Tax State income taxation of any Notes
Outstanding or outstanding Certificates or any Noteholder or
Certificateholder, (iii) (x) such action shall not, as evidenced by
an Opinion of Counsel, adversely affect the rights or obligations of
any Swap Counterparty under the related Interest Rate Swap Agreement
or modify the obligations of, or impair the ability of the Issuer to
fully perform any of its obligations under such Interest Rate Swap
Agreement or (y) each Swap Counterparty shall have consented thereto
(and a Swap Counterparty's consent will be deemed to have been given
if the Swap Counterparty does not object in writing within ten
Business Days of receipt of a written request for such consent); and
provided, further, that no such supplemental indenture shall, without
the consent of each Outstanding Note affected thereby:
(i) modify or alter provisions of this Section 9.2;
(ii) change the Final Scheduled Distribution Date or the date
of payment of any installment of principal of or interest on
any Note, or reduce the principal amount thereof, the interest
rate thereon or the Redemption Price with respect thereto,
change the provisions of this Indenture relating to the
application of collections on, or the proceeds of the sale of,
the Indenture Trust Estate 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
thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of this Indenture requiring
the application of funds available therefor, as provided in
Article V, to the payment of any such amount due on the Notes
on or after the respective due dates thereof (or, in the case
of redemption, on or after the Redemption Date);
(iii) reduce the percentage of the principal amount of the
Notes Outstanding or the Controlling Note Class, the consent
of the Noteholders of which is required for any such
supplemental indenture, or the consent of the Noteholders of
which is required for any waiver of compliance with certain
provisions of this Indenture or certain Defaults or Events of
Default hereunder and their consequences provided for in this
Indenture;
(iv) modify or alter (x) the provisions of the proviso to the
definition of the term "Outstanding" or (y) the definition of
"Controlling Note Class";
(v) reduce the percentage of the principal amount of the Notes
Outstanding or of the Controlling Note Class required to
direct or consent to a sale or liquidation by the Indenture
Trustee of the Indenture Trust Estate pursuant to Section 5.4
if the proceeds of such sale or liquidation would be
insufficient to pay the principal amount and accrued but
unpaid interest on the Notes and/or the Certificates, as
applicable;
(vi) modify any provision of this Indenture specifying a
percentage of the aggregate Note Balance of the Notes
necessary to amend this Indenture or the other Basic Documents
except to increase any percentage specified herein or to
provide that certain additional provisions of this Indenture
or the other Basic Documents cannot be modified or waived
without the consent of the Noteholder of each Outstanding Note
affected thereby;
(vii) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any
payment of interest or principal due on any Note on any
Distribution Date (including the calculation of any of the
individual components of such calculation) or to affect the
rights of the Noteholders to the benefit of any provisions for
the mandatory redemption of the Notes contained herein; or
(viii) permit the creation of any lien ranking prior to or on
a parity with the lien of this Indenture with respect to any
part of the Indenture Trust Estate or, except as otherwise
permitted or contemplated herein, terminate the lien of this
Indenture on any such collateral at any time subject hereto or
deprive any Noteholder of the security provided by the lien of
this Indenture.
The Indenture Trustee may in its discretion or upon receipt of an
Opinion of Counsel determine whether or not any Notes would be
affected by any supplemental indenture and any such determination
shall be conclusive upon the Noteholders of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The
Indenture Trustee shall not be liable for any such determination made
in good faith.
It shall 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 shall be sufficient if such Act shall
approve the substance thereof.
Promptly after the execution by the Issuer and the
Indenture Trustee of any supplemental indenture pursuant to this
Section 9.2, the Indenture Trustee shall mail to each Swap
Counterparty a copy of such supplemental indenture and to the
Noteholders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the
Indenture Trustee to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
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 thereby of the trusts created by this Indenture, the
Indenture Trustee shall be entitled to receive, and subject to
Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating 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 shall not be obligated to, enter into any such supplemental
indenture that affects the Indenture Trustee's own rights, duties,
liabilities or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture . Upon
the execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and shall be deemed to be
modified and amended in accordance therewith with respect to the
Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this
Indenture of the Indenture Trustee, the Issuer and the Noteholders
shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be
and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act .
Every amendment of this Indenture and every supplemental indenture
executed pursuant to this Article IX shall conform to the
requirements of the Trust Indenture Act as then in effect so long as
this Indenture shall then be 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 shall, 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
shall 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 . The Class A Notes and the
Class B Notes are subject to redemption in whole, but not in part, at
the direction of the Servicer pursuant to Section 9.1 of the Sale and
Servicing Agreement, on any Distribution Date on which the Servicer
exercises its option to purchase the assets of the Issuer pursuant to
such Section 9.1, and the amount paid by the Servicer shall be
treated as collections of Receivables and applied to pay the unpaid
principal amount of the Notes and the Aggregate Certificate Balance
of the Certificates plus accrued and unpaid interest thereon. If the
Class A Notes and the Class B Notes are to be redeemed pursuant to
this Section 10.1(a), the Servicer or the Issuer shall furnish notice
of such election to the Indenture Trustee and the Rating Agencies not
later than forty (40) days prior to the Redemption Date (and the
Indenture Trustee shall promptly furnish notice to the Noteholders)
and the Issuer shall deposit by 10:00 a.m. (New York City time) on
the Redemption Date with the Indenture Trustee in the Collection
Account the Redemption Price of the Class A Notes and the Class B
Notes to be redeemed, whereupon all such Class A Notes and Class B
Notes shall be due and payable on the Redemption Date.
SECTION 10.2 Form of Redemption Notice . Notice of
redemption under Section 10.1(a) shall be given by the Indenture
Trustee by first-class mail, postage prepaid, or by facsimile mailed
or transmitted promptly following receipt of notice from the Issuer
or Servicer pursuant to Section 10.1(a), but not later than thirty
(30) days prior to the applicable Redemption Date, to each Noteholder
as of the close of business on the Record Date preceding the
applicable Redemption Date, at such Noteholder's address or facsimile
number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Notes are to be surrendered for
payment of the Redemption Price (which shall be the office or
agency of the Issuer to be maintained as provided in Section
3.2); and
(iv) that on the Redemption Date, the Redemption Price will
become due and payable upon each such Note and that interest
thereon shall cease to accrue for and after said date.
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give
notice of redemption, or any defect therein, to any Noteholder shall
not impair or affect the validity of the redemption of any other
Note.
SECTION 10.3 Notes Payable on Redemption Date . The
Notes to be redeemed shall, following notice of redemption as
required by Section 10.2 (in the case of redemption pursuant to
Section 10.1(a)), shall on the Redemption Date become due and payable
at the Redemption Price and (unless the Issuer shall default in the
payment of the Redemption Price) no interest shall accrue on the
Redemption Price for any period after the date to which accrued
interest is calculated for purposes of calculating the Redemption
Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions,
etc. (a) Upon any application or request by the Issuer to the
Indenture Trustee to take any action under any provision of this
Indenture, the Issuer shall furnish to the Indenture Trustee (i) an
Officer's Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have
been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have
been complied with and (iii) (if required by the TIA) an Independent
Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section 11.1, except that, in the
case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this
Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this
Indenture shall include:
(A) a statement that each signatory of such certificate or opinion has
read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(B) 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;
(C) 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
(D) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or
other property or securities with the Indenture Trustee that
is to be made the basis for the release of any property or
securities subject to the lien of this Indenture, the Issuer
shall, in addition to any obligation imposed in Section
11.1(a) or elsewhere in this Indenture, furnish to the
Indenture Trustee an Officer's Certificate certifying or
stating the opinion of each person signing such certificate as
to the fair value (within ninety (90) days of such deposit) to
the Issuer of the Collateral or other property or securities
to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the matters
described in clause (i) above, the Issuer shall also deliver
to the Indenture Trustee 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 fiscal year of the Issuer, as
set forth in the certificates delivered pursuant to clause (i)
above and this clause (ii), is ten percent (10%) or more of
the principal amount of the Notes Outstanding, but such a
certificate need not be furnished with respect to any
securities so deposited, if the fair value thereof to the
Issuer as set forth in the related Officer's Certificate is
less than $25,000 or less than one percent (1%) of the
principal amount of the Notes Outstanding.
(iii) Whenever any property or securities are to be released
from the lien of this Indenture, the Issuer shall also furnish
to the Indenture Trustee an Officer's Certificate certifying
or stating the opinion of each person signing such certificate
as to the fair value (within ninety (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 hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the matters
described in clause (iii) above, the Issuer shall also furnish
to the Indenture Trustee 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 clause (v) below 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
clause (iii) above and this clause (iv), equals ten percent
(10%) or more of the principal amount 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 thereof as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent (1%)
of the principal amount of the Notes Outstanding.
(v) Notwithstanding Section 2.10 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 as and to the extent permitted or
required by the Basic Documents and (B) make cash payments out
of the Trust Accounts and the Payahead Account as and to the
extent permitted or required by the Basic Documents.
SECTION 11.2 Form of Documents Delivered to
Indenture Trustee . (a) 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 so 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.
(b) Any certificate or opinion of an Authorized
Officer of the Issuer may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate
or opinion is based are erroneous. Any such certificate of an
Authorized Officer or opinion of counsel may be based, insofar
as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of
the Servicer, the Seller, the Administrator or the Issuer,
stating that the information with respect to such factual
matters is in the possession of the Servicer, the Seller, the
Administrator or the Issuer, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with
respect to such matters are erroneous.
(c) Where any Person is required to make, give or
execute two or more applications, requests, comments, certificates,
statements, opinions or other instruments under this Indenture, they
may, but need not, be consolidated and form one instrument.
(d) Whenever in this Indenture, in connection with
any application or certificate or report to the Indenture Trustee, it
is provided that the Issuer shall deliver any document as a condition
of the granting of such application, or as evidence of the Issuer's
compliance with any term hereof, it is intended that the truth and
accuracy, at the time of the granting of such application or at the
effective date of such certificate or report (as the case may be), of
the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such
application granted or to the sufficiency of such certificate or
report. The foregoing shall not, however, be construed to affect the
Indenture Trustee's right to rely upon the truth and accuracy of any
statement or opinion contained in any such document as provided in
Article VI.
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
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; and except as herein otherwise
expressly provided such action shall become effective when such
instrument or instruments are delivered to the Indenture Trustee,
and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied herein and
evidenced thereby) are herein sometimes referred to as the "Act" of
the Noteholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such
agent shall 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) The ownership of Notes shall be proved by the
Note Register.
(d) Any request, demand, authorization,
direction, notice, consent, waiver or other action by the Noteholder
of any Notes shall bind the Noteholder of every Note issued upon
the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be
done by the Indenture Trustee or the Issuer in reliance
thereon, whether or not notation of such action is made upon such
Note.
SECTION 11.4 Notices, etc., to Indenture Trustee,
Issuer and Rating Agencies . Any request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders or other
documents provided or permitted by this Indenture shall be in writing
and if such request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders is to be made upon, given or
furnished to or filed with:
(i) the Indenture Trustee by any Noteholder, the Servicer, the
Administrator or the Issuer shall be sufficient for every
purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate
Trust office; or
(ii) the Issuer by the Indenture Trustee or by any Noteholder
shall be sufficient for every purpose hereunder if in writing
and mailed first-class, postage prepaid to the Issuer
addressed to: Ford Credit Auto Owner Trust 2001-A, in care of
The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxxxx 12 East, New
York, New York, 10256, Attention: Asset-Backed Finance Unit,
with a copy to the Administrator at Ford Motor Company, World
Headquarters, Office of the General Counsel, Xxx Xxxxxxxx
Xxxx, Xxxxx 0000-X0, Xxxxxxxx, Xxxxxxxx 00000, attention of
the Secretary, or at any other address previously furnished in
writing to the Indenture Trustee by the Issuer or the
Administrator. The Issuer shall promptly transmit any notice
received by it from the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies
by the Issuer, the Indenture Trustee or the Owner Trustee shall be in
writing, personally delivered, telecopied or mailed by certified
mail, return receipt requested, to (i) in the case of Moody's, at the
following address: Xxxxx'x Investors Service, Inc., ABS Monitoring
Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (ii) in case
of Standard & Poor's, at the following address: Standard & Poor's
Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Asset Backed Surveillance Department, (iii) in the
case of Fitch, at the following address: Fitch, Inc., 0 Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance
and (iv) in the case of the initial Swap Counterparty as of the
Closing Date, at the following address: Citibank, N.A., Capital
Markets Legal Department, 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
SECTION 11.5 Notices to Noteholders; Waiver . (a)
Where this Indenture provides for notice to Noteholders of any event,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage
prepaid to each Noteholder affected by such event, at his address 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 shall affect the sufficiency
of such notice with respect to other Noteholders, and any notice that
is mailed in the manner herein provided shall conclusively be
presumed to have been duly given.
(b) Where this Indenture provides for notice in any
manner, such notice may be waived in writing by any Person entitled
to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by
Noteholders shall be filed with the Indenture Trustee but such filing
shall 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 shall be impractical to mail notice of any event to
Noteholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Indenture Trustee shall 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 shall not affect any
other rights or obligations created hereunder, and shall not under
any circumstance constitute a Default or Event of Default.
SECTION 11.6 Alternate Payment and Notice Provisions
. Notwithstanding any provision of this Indenture or any of the Notes
to the contrary, the Issuer may enter into any agreement with any
Noteholder providing for a method of payment, or notice by the
Indenture Trustee or any Note Paying Agent to such Noteholder, that
is different from the methods provided for in this Indenture for such
payments or notices. The Issuer shall furnish to the Indenture
Trustee a copy of each such agreement and the Indenture Trustee shall
cause payments to be made and notices to be given in accordance with
such agreements.
SECTION 11.7 Conflict with Trust Indenture Act . If
any provision hereof limits, qualifies or conflicts with another
provision hereof that is required or deemed to be included in this
Indenture by any of the provisions of the Trust Indenture Act, such
required or deemed provision shall control.
The provisions of TIA Sections 310 through 317 that
impose duties on any Person (including the provisions automatically
deemed included herein unless expressly excluded by this Indenture)
are a part of and govern this Indenture, whether or not physically
contained herein.
SECTION 11.8 Effect of Headings and Table of
Contents . The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the
construction hereof.
SECTION 11.9 Successors and Assigns . All covenants
and agreements in this Indenture and the Notes by the Issuer shall
bind its successors and assigns, whether so expressed or not. All
agreements of the Indenture Trustee in this Indenture shall bind its
successors, co-trustees and agents.
SECTION 11.10 Separability . In case any provision
in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 11.11 Benefits of Indenture . Nothing in
this Indenture or in the Notes, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder,
and the Noteholders, the Swap Counterparties and any other party
secured hereunder, and any other Person with an ownership interest in
any part of the Indenture Trust Estate, any benefit or any legal or
equitable right, remedy or claim under this Indenture; provided, that
no Swap Counterparty shall have any right to institute any
Proceeding, judicial or otherwise, with respect to enforcement of
remedies under Article V of this Indenture upon the occurrence of an
Event of Default.
SECTION 11.12 Legal Holidays . In any case where the
date on which any payment is due shall not be a Business Day, then
(notwithstanding any other provision of the Notes or this Indenture)
payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on
the date on which nominally due, and no interest shall accrue for the
period from and after any such nominal date.
SECTION 11.13 Governing Law . This Indenture shall
be construed in accordance with the laws of the State of New York,
without reference to its conflict of law provisions.
SECTION 11.14 Counterparts . This Indenture may be
executed in any number of counterparts, each of which so executed
shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 11.15 Recording of Indenture . If this
Indenture is subject to recording in any appropriate public recording
offices, such recording is to be effected by the Issuer and at its
expense accompanied by an Opinion of Counsel (which may be counsel to
the Indenture Trustee or any other counsel reasonably acceptable to
the Indenture Trustee) to the effect that such recording is necessary
either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy
granted to the Indenture Trustee under this Indenture.
SECTION 11.16 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 herewith or therewith, against (i) the Indenture Trustee
or the Owner Trustee in their individual capacities, (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 in their individual
capacities, 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 in their individual
capacities, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee
have no such obligations in their individual capacities), and except
that any such partner, owner or beneficiary shall be fully liable, to
the extent provided by applicable law, for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity. For all purposes of this
Indenture, in the performance of any duties or obligations of the
Issuer hereunder, the Owner Trustee shall be subject to, and entitled
to the benefits of, the terms and provisions of Article VI, VII and
VIII of the Trust Agreement.
SECTION 11.17 No Petition . The Indenture Trustee,
by entering into this Indenture, and each Noteholder or Note Owner,
by accepting a Note or, in the case of a Note Owner, a beneficial
interest in a Note, hereby covenant and agree that they will not at
any time institute against the Seller, the General Partner or the
Issuer, or join in any institution against the Seller, the General
Partner or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or State bankruptcy or
similar law in connection with any obligations relating to the Notes,
this Indenture or any of the other Basic Documents.
SECTION 11.18 Inspection . The Issuer agrees that,
with reasonable prior notice, it will permit any representative of
the Indenture Trustee, during the Issuer's normal business hours, to
examine all the books of account, records, reports and other papers
of the Issuer, to make copies and extracts therefrom, to cause such
books to be audited by Independent certified public accountants, and
to discuss the Issuer's affairs, finances and accounts with the
Issuer's officers, employees, and Independent certified public
accountants, all at such reasonable times and as often as may be
reasonably requested. The Indenture Trustee shall and shall cause its
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 Indenture Trustee may reasonably determine that
such disclosure is consistent with its obligations hereunder.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have
caused this Indenture to be duly executed by their respective
officers, thereunto duly authorized, all as of the day and year
first above written.
FORD CREDIT AUTO OWNER TRUST 2001-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely
as Owner Trustee of Ford Credit
Auto Owner Trust 2001-A
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Assistant Treasurer
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
EXHIBIT A-1
FORM OF CLASS A-1 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
PURSUANT TO THE EXEMPTION FROM REGISTRATION SET FORTH IN SECTION
3(a)(3) THEREOF.
REGISTERED $200,000,000
No. R-1 CUSIP NO. 34527R FF 5
FORD CREDIT AUTO OWNER TRUST 2001-A
CLASS A-1 5.776% ASSET BACKED NOTES
Ford Credit Auto Owner Trust 2001-A, a business
trust organized and existing under the laws of the State of Delaware
(herein referred to as the "Issuer"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal
sum of TWO HUNDRED MILLION DOLLARS payable on each Distribution Date
in an amount equal to the aggregate amount, if any, payable to
Noteholders of Class A-1 Notes on such Distribution Date from the
Principal Distribution Account in respect of principal on the Class
A-1 Notes pursuant to Section 3.1 of the Indenture dated as of
January 1, 2001 (as from time to time amended, supplemented or
otherwise modified and in effect, the "Indenture"), between the
Issuer and The Chase Manhattan Bank, a New York corporation, as
Indenture Trustee (in such capacity the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the May 2001 Distribution Date (the
"Class A-1 Final Scheduled Distribution Date"). Capitalized terms
used but not defined herein are defined in Article I of the
Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Note at the
rate per annum shown above on each Distribution 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
Distribution Date (after giving effect to all payments of principal
made on the preceding Distribution Date), subject to certain
limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Distribution Date from and including
the previous Distribution Date on which interest has been paid (or,
in the case of the initial Distribution Date, from the Closing Date)
to but excluding such Distribution Date. Interest will be computed on
the basis of actual days elapsed and a 360-day year. Such principal
of and interest on this Note shall be paid in the manner specified on
the reverse hereof.
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 shall be applied first to interest due and payable on this Note
as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this
Note set forth on the reverse hereof, which shall have the same
effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has
been executed by the Indenture Trustee whose name appears below by
manual signature, this Note shall not be entitled to any benefit
under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the
date set forth below.
Date: January 25, 2001
FORD CREDIT AUTO OWNER TRUST 2001-A
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee of Ford Credit
Auto Owner Trust 2001-A
By:
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Notes designated above and referred to
in the within-mentioned Indenture.
Date: January 25, 2001
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Class A-1 5.776% Asset Backed Notes
(the "Class A-1 Notes") which, together with the Issuer's Class A-2
5.494% Asset Backed Notes (the "Class A-2 Notes"), Class A-3 5.35%
Asset Backed Notes (the "Class A-3 Notes"), Class A-4 Floating Rate
Asset Backed Notes (the "Class A-4 Notes"), Class A-5 Floating Rate
Asset Backed Notes (the "Class A-5 Notes" and, together with the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes, the "Class A Notes") and Class B 5.96% Asset Backed
Notes (the "Class B Notes" and, together with the Class A Notes, the
"Notes"), are issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Noteholders. The Notes are
subject to all terms of the Indenture.
The Class A-1 Notes are and will be equally and
ratably secured by the collateral pledged as security therefor as
provided in the Indenture. The Class A-1 Notes are subordinated to
the rights of the Swap Counterparties to receive payments (other than
Swap Termination Payments) pursuant to the Interest Rate Swap
Agreements. 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.
Principal of the Class A-1 Notes will be payable on
each Distribution Date in an amount described on the face hereof.
"Distribution Date" means the fifteenth day of each month, or, if any
such day is not a Business Day, the next succeeding Business Day,
commencing in February 2001.
As described on the face hereof, the entire unpaid
principal amount of this Note shall be due and payable on the Class
A-1 Final Scheduled Distribution Date. Notwithstanding the foregoing,
the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default shall have occurred
and be continuing and the Indenture Trustee or the Noteholders of
Notes evidencing not less than a majority of the principal amount of
the Class A Notes have declared the Notes to be immediately due and
payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Class A-1 Notes shall be made pro rata to
the Noteholders entitled thereto.
Payments of interest on this Note on each
Distribution Date, together with the installment of principal, if
any, to the extent not in full payment of this Note, shall be made to
the Person whose name appears as the Registered Noteholder of the
Note (or one or more Predecessor Notes) on the Note Register as of
the close of business on each Record Date either by wire transfer in
immediately available funds, to the account of such Noteholder at a
bank or other entity having appropriate facilities therefor, if such
Noteholder shall have provided to the Note Registrar appropriate
written instructions at least five (5) Business Days prior to such
Distribution 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 postage prepaid to such Person's address as
it appears on the Note Register on such Record Date; provided that,
unless Definitive Notes have been issued to Note Owners, with respect
to Notes registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds
to the account designated by such 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 (or any
one or more Predecessor Notes) effected by any payments made on any
Distribution Date shall be binding 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 noted
hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal
amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Noteholder hereof as of the Record Date
preceding such Distribution Date by notice mailed or transmitted by
facsimile prior to such Distribution Date, and the amount then due
and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal 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 shall pay interest on overdue
installments of interest at the Class A-1 Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and
the Class B 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.
As provided in the Indenture, and subject to certain
limitations set forth therein, 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 a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of
a Note or, in the case of a Note Owner, a beneficial interest in a
Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner
Trustee or the Indenture Trustee on the Notes or under the Indenture
or any certificate or other writing delivered in connection
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 or employee 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 and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid
capital contribution for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
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 at any time institute
against the Seller, the General Partner or the Issuer, or join in any
institution against the Seller, the General Partner or the Issuer of,
any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or State
bankruptcy or similar law in connection with any obligations relating
to the Notes, the Indenture or 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, the Notes will qualify as
indebtedness of the Issuer secured by the Indenture Trust Estate.
Each Noteholder, by its acceptance of a Note (and each Note Owner by
its acceptance of 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.
Prior to the due presentment for registration of
transfer of this Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in
whose name this Note (as of the day of determination or as of such
other date as may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Note be overdue,
and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions
requiring the consent of all Noteholders affected thereby as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Issuer and the rights of the Noteholders under
the Indenture at any time by the Issuer with the consent of the
Noteholders of Notes evidencing not less than a majority of the
principal amount of the Controlling Note Class and with the consent
of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related
Interest Rate Swap Agreements or modifies the obligations of, or
impairs the ability of the Issuer to fully perform any of its
obligations under such Interest Rate Swap Agreements. 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 or the Swap Counterparties 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 Note Class, on behalf of all Noteholders, to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Noteholder of this Note (or any one or
more Predecessor Notes) shall 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 therein set forth.
This Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York,
without reference to its conflicts of law provisions.
No reference herein to the Indenture, and no
provision of this Note or of the Indenture, shall 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 herein prescribed.
Anything herein to the contrary notwithstanding,
except as expressly provided in the Basic Documents, none of The
Chase Manhattan Bank, in its individual capacity, The Bank of New
York, 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 shall
be personally liable for, nor shall 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 his acceptance hereof, agrees that,
except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Noteholder shall have no
claim against any of the foregoing for any deficiency, loss or claim
therefrom; provided, however, that nothing contained herein shall 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.
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 thereunder, and hereby irrevocably
constitutes and appoints _________________, attorney, to transfer
said Note on the books kept for registration thereof, 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 STAMP or such other
"signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT A-2
FORM OF CLASS A-2 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
PURSUANT TO THE EXEMPTION FROM REGISTRATION SET FORTH IN SECTION
3(a)(3) THEREOF.
REGISTERED $385,000,000
No. R-1 CUSIP NO. 34527R FG 3
FORD CREDIT AUTO OWNER TRUST 2001-A
CLASS A-2 5.494% ASSET BACKED NOTES
Ford Credit Auto Owner Trust 2001-A, a business
trust organized and existing under the laws of the State of Delaware
(herein referred to as the "Issuer"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal
sum of THREE HUNDRED EIGHTY-FIVE MILLION DOLLARS payable on each
Distribution Date in an amount equal to the aggregate amount, if any,
payable to Noteholders of Class A-2 Notes on such Distribution Date
from the Principal Distribution Account in respect of principal on
the Class A-2 Notes pursuant to Section 3.1 of the Indenture dated as
of January 1, 2001 (as from time to time amended, supplemented or
otherwise modified and in effect, the "Indenture"), between the
Issuer and The Chase Manhattan Bank, a New York corporation, as
Indenture Trustee (in such capacity the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the October 2001 Distribution Date
(the "Class A-2 Final Scheduled Distribution Date"). Capitalized
terms used but not defined herein are defined in Article I of the
Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Note at the
rate per annum shown above on each Distribution 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
Distribution Date (after giving effect to all payments of principal
made on the preceding Distribution Date), subject to certain
limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Distribution Date from and including
the previous Distribution Date on which interest has been paid (or,
in the case of the initial Distribution Date, from the Closing Date)
to but excluding such Distribution Date. Interest will be computed on
the basis of actual days elapsed and a 360-day year. Such principal
of and interest on this Note shall be paid in the manner specified on
the reverse hereof.
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 shall be applied first to interest due and payable on this Note
as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this
Note set forth on the reverse hereof, which shall have the same
effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has
been executed by the Indenture Trustee whose name appears below by
manual signature, this Note shall not be entitled to any benefit
under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: January 25, 2001
FORD CREDIT AUTO OWNER TRUST 2001-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely
as Owner Trustee of Ford Credit
Auto Owner Trust 2001-A
By:
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Notes designated above and referred to
in the within-mentioned Indenture.
Date: January 25, 2001
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Class A-2 5.494% Asset Backed Notes
(the "Class A-2 Notes") which, together with the Issuer's Class A-1
5.776% Asset Backed Notes (the "Class A-1 Notes"), Class A-3 5.35%
Asset Backed Notes (the "Class A-3 Notes"), Class A-4 Floating Rate
Asset Backed Notes (the "Class A-4 Notes"), Class A-5 Floating Rate
Asset Backed Notes (the "Class A-5 Notes" and, together with the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes, the "Class A Notes") and Class B 5.96% Asset Backed
Notes (the "Class B Notes" and, together with the Class A Notes, the
"Notes"), are issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a
statement of 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-2 Notes are and will be equally and
ratably secured by the collateral pledged as security therefor as
provided in the Indenture. The Class A-2 Notes are subordinated to
the rights of the Swap Counterparties to receive payments (other than
Swap Termination Payments) pursuant to the Interest Rate Swap
Agreements. 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.
Principal of the Class A-2 Notes will be payable on
each Distribution Date in an amount described on the face hereof.
"Distribution Date" means the fifteenth day of each month, or, if any
such day is not a Business Day, the next succeeding Business Day,
commencing in February 2001.
As described on the face hereof, the entire unpaid
principal amount of this Note shall be due and payable on the Class
A-2 Final Scheduled Distribution Date. Notwithstanding the foregoing,
the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default shall have occurred
and be continuing and the Indenture Trustee or the Noteholders of
Notes evidencing not less than a majority of the principal amount of
the Class A Notes have declared the Notes to be immediately due and
payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Class A-2 Notes shall be made pro rata to
the Noteholders entitled thereto.
Payments of interest on this Note on each
Distribution Date, together with the installment of principal, if
any, to the extent not in full payment of this Note, shall be made to
the Person whose name appears as the Registered Noteholder of the
Note (or one or more Predecessor Notes) on the Note Register as of
the close of business on each Record Date either by wire transfer in
immediately available funds, to the account of such Noteholder at a
bank or other entity having appropriate facilities therefor, if such
Noteholder shall have provided to the Note Registrar appropriate
written instructions at least five (5) Business Days prior to such
Distribution 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 postage prepaid to such Person's address as
it appears on the Note Register on such Record Date; provided that,
unless Definitive Notes have been issued to Note Owners, with respect
to Notes registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds
to the account designated by such 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 (or any
one or more Predecessor Notes) effected by any payments made on any
Distribution Date shall be binding 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 noted
hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal
amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Noteholder hereof as of the Record Date
preceding such Distribution Date by notice mailed or transmitted by
facsimile prior to such Distribution Date, and the amount then due
and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal 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 shall pay interest on overdue
installments of interest at the Class A-2 Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and
the Class B 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.
As provided in the Indenture, and subject to certain
limitations set forth therein, 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 a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of
a Note or, in the case of a Note Owner, a beneficial interest in a
Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner
Trustee or the Indenture Trustee on the Notes or under the Indenture
or any certificate or other writing delivered in connection
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 or employee 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 and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid
capital contribution for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
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 at any time institute
against the Seller, the General Partner or the Issuer, or join in any
institution against the Seller, the General Partner or the Issuer of,
any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or State
bankruptcy or similar law in connection with any obligations relating
to the Notes, the Indenture or 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, the Notes will qualify as
indebtedness of the Issuer secured by the Indenture Trust Estate.
Each Noteholder, by its acceptance of a Note (and each Note Owner by
its acceptance of 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.
Prior to the due presentment for registration of
transfer of this Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in
whose name this Note (as of the day of determination or as of such
other date as may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Note be overdue,
and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions
requiring the consent of all Noteholders affected thereby as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Issuer and the rights of the Noteholders under
the Indenture at any time by the Issuer with the consent of the
Noteholders of Notes evidencing not less than a majority of the
principal amount of the Controlling Note Class and with the consent
of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related
Interest Rate Swap Agreements or modifies the obligations of, or
impairs the ability of the Issuer to fully perform any of its
obligations under such Interest Rate Swap Agreements. 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 or the Swap Counterparties 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 Note Class, on behalf of all Noteholders, to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Noteholder of this Note (or any one or
more Predecessor Notes) shall 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 therein set forth.
This Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York,
without reference to its conflicts of law provisions.
No reference herein to the Indenture, and no
provision of this Note or of the Indenture, shall 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 herein prescribed.
Anything herein to the contrary notwithstanding,
except as expressly provided in the Basic Documents, none of The
Chase Manhattan Bank, in its individual capacity, The Bank of New
York, 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 shall
be personally liable for, nor shall 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 his acceptance hereof, agrees that,
except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Noteholder shall have no
claim against any of the foregoing for any deficiency, loss or claim
therefrom; provided, however, that nothing contained herein shall 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.
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 thereunder, and hereby irrevocably
constitutes and appoints _________________, attorney, to transfer
said Note on the books kept for registration thereof, 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 STAMP or such other
"signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT A-3
FORM OF CLASS A-3 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 HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $1,190,000,000
No. R-1 CUSIP NO.34527R FH 1
FORD CREDIT AUTO OWNER TRUST 2001-A
CLASS A-3 5.35% ASSET BACKED NOTES
Ford Credit Auto Owner Trust 2001-A, a business
trust organized and existing under the laws of the State of Delaware
(herein referred to as the "Issuer"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal
sum of ONE BILLION ONE HUNDRED NINETY MILLION DOLLARS payable on each
Distribution Date in an amount equal to the aggregate amount, if any,
payable to Noteholders of Class A-3 Notes on such Distribution Date
from the Principal Distribution Account in respect of principal on
the Class A-3 Notes pursuant to Section 3.1 of the Indenture dated as
of January 1, 2001 (as from time to time amended, supplemented or
otherwise modified and in effect, the "Indenture"), between the
Issuer and The Chase Manhattan Bank, a New York corporation, as
Indenture Trustee (in such capacity the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the July 2003 Distribution Date (the
"Class A-3 Final Scheduled Distribution Date"). Capitalized terms
used but not defined herein are defined in Article I of the
Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Note at the
rate per annum shown above on each Distribution 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
Distribution Date (after giving effect to all payments of principal
made on the preceding Distribution Date), subject to certain
limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Distribution Date from and including
the fifteenth day of the calendar month immediately preceding such
Distribution Date (or, in the case of the initial Distribution Date,
from the Closing Date) to but excluding the fifteenth day of the
following calendar month. Interest will be computed on the basis of a
360-day year of twelve 30-day months. Such principal of and interest
on this Note shall be paid in the manner specified on the reverse
hereof.
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 shall be applied first to interest due and payable on this Note
as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this
Note set forth on the reverse hereof, which shall have the same
effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has
been executed by the Indenture Trustee whose name appears below by
manual signature, this Note shall not be entitled to any benefit
under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: January 25, 2001
FORD CREDIT AUTO OWNER TRUST 2001-A
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee of Ford Credit
Auto Owner Trust 2001-A
By:
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Notes designated above and referred to
in the within-mentioned Indenture.
Date: January 25, 2001
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Class A-3 5.35% Asset Backed Notes
(the "Class A-3 Notes") which, together with the Issuer's Class A-1
5.776% Asset Backed Notes (the "Class A-1 Notes"), Class A-2 5.494%
Asset Backed Notes (the "Class A-2 Notes"), Class A-4 Floating Rate
Asset Backed Notes (the "Class A-4 Notes"), Class A-5 Floating Rate
Asset Backed Notes (the "Class A-5 Notes" and, together with the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes, the "Class A Notes") and Class B 5.96% Asset Backed
Notes (the "Class B Notes" and, together with the Class A Notes, the
"Notes"), are issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a
statement of 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 subordinated to the
rights of the Swap Counterparties to receive payments (other than
Swap Termination Payments) pursuant to the Interest Rate Swap
Agreements. 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.
Principal of the Class A-3 Notes will be payable on
each Distribution Date in an amount described on the face hereof.
"Distribution Date" means the fifteenth day of each month, or, if any
such day is not a Business Day, the next succeeding Business Day,
commencing in February 2001.
As described on the face hereof, the entire unpaid
principal amount of this Note shall be due and payable on the Class
A-3 Final Scheduled Distribution Date. Notwithstanding the foregoing,
the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default shall have occurred
and be continuing and the Indenture Trustee or the Noteholders of
Notes evidencing not less than a majority of the principal amount of
the Class A Notes have declared the Notes to be immediately due and
payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Class A-3 Notes shall be made pro rata to
the Noteholders entitled thereto.
Payments of interest on this Note on each
Distribution Date, together with the installment of principal, if
any, to the extent not in full payment of this Note, shall be made to
the Person whose name appears as the Registered Noteholder of the
Note (or one or more Predecessor Notes) on the Note Register as of
the close of business on each Record Date either by wire transfer in
immediately available funds, to the account of such Noteholder at a
bank or other entity having appropriate facilities therefor, if such
Noteholder shall have provided to the Note Registrar appropriate
written instructions at least five (5) Business Days prior to such
Distribution 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 postage prepaid to such Person's address as
it appears on the Note Register on such Record Date; provided that,
unless Definitive Notes have been issued to Note Owners, with respect
to Notes registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds
to the account designated by such 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 (or any
one or more Predecessor Notes) effected by any payments made on any
Distribution Date shall be binding 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 noted
hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal
amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Noteholder hereof as of the Record Date
preceding such Distribution Date by notice mailed or transmitted by
facsimile prior to such Distribution Date, and the amount then due
and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal 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 shall pay interest on overdue
installments of interest at the Class A-3 Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and
the Class B 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 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 a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of
a Note or, in the case of a Note Owner, a beneficial interest in a
Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner
Trustee or the Indenture Trustee on the Notes or under the Indenture
or any certificate or other writing delivered in connection
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 or employee 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 and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid
capital contribution for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
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 at any time institute
against the Seller, the General Partner or the Issuer, or join in any
institution against the Seller, the General Partner or the Issuer of,
any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or State
bankruptcy or similar law in connection with any obligations relating
to the Notes, the Indenture or 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, the Notes will qualify as
indebtedness of the Issuer secured by the Indenture Trust Estate.
Each Noteholder, by its acceptance of a Note (and each Note Owner by
its acceptance of 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.
Prior to the due presentment for registration of
transfer of this Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in
whose name this Note (as of the day of determination or as of such
other date as may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Note be overdue,
and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions
requiring the consent of all Noteholders affected thereby as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Issuer and the rights of the Noteholders under
the Indenture at any time by the Issuer with the consent of the
Noteholders of Notes evidencing not less than a majority of the
principal amount of the Controlling Note Class and with the consent
of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related
Interest Rate Swap Agreements or modifies the obligations of, or
impairs the ability of the Issuer to fully perform any of its
obligations under such Interest Rate Swap Agreements. 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 or the Swap Counterparties 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 Note Class, on behalf of all Noteholders, to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Noteholder of this Note (or any one or
more Predecessor Notes) shall 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 therein set forth.
This Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York,
without reference to its conflicts of law provisions.
No reference herein to the Indenture, and no
provision of this Note or of the Indenture, shall 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 herein prescribed.
Anything herein to the contrary notwithstanding,
except as expressly provided in the Basic Documents, none of The
Chase Manhattan Bank, in its individual capacity, The Bank of New
York, 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 shall
be personally liable for, nor shall 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 his acceptance hereof, agrees that,
except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Noteholder shall have no
claim against any of the foregoing for any deficiency, loss or claim
therefrom; provided, however, that nothing contained herein shall 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.
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 thereunder, and hereby irrevocably
constitutes and appoints _________________, attorney, to transfer
said Note on the books kept for registration thereof, 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 STAMP or such other
"signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT A-4
FORM OF CLASS A-4 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $800,000,000
No. R-1 CUSIP NO.34527R FJ 7
FORD CREDIT AUTO OWNER TRUST 2001-A
CLASS A-4 FLOATING RATE ASSET BACKED NOTES
Ford Credit Auto Owner Trust 2001-A, a business
trust organized and existing under the laws of the State of Delaware
(herein referred to as the "Issuer"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal
sum of EIGHT HUNDRED MILLION DOLLARS payable on each Distribution
Date in an amount equal to the aggregate amount, if any, payable to
Noteholders of Class A-4 Notes on such Distribution Date from the
Principal Distribution Account in respect of principal on the Class
A-4 Notes pursuant to Section 3.1 of the Indenture dated as of
January 1, 2001 (as from time to time amended, supplemented or
otherwise modified and in effect, the "Indenture"), between the
Issuer and The Chase Manhattan Bank, a New York corporation, as
Indenture Trustee (in such capacity the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the August 2004 Distribution Date
(the "Class A-4 Final Scheduled Distribution Date"). Capitalized
terms used but not defined herein are defined in Article I of the
Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer shall pay interest on this Note on each
Distribution Date at a per annum rate equal to the London interbank
offered rate ("LIBOR") for one-month U.S. Dollar deposits in Europe
(determined as set forth in the Indenture) on the applicable LIBOR
Determination Date, in each case plus 0.09% on the principal amount
of this Note outstanding on the preceding Distribution Date, after
giving effect to all payments of principal made on the preceding
Distribution Date (provided, however, that interest shall accrue from
the Closing Date to the initial Distribution Date, and shall be
payable on the initial Distribution Date, at a per annum rate equal
to 5.88250% on the original principal amount outstanding on the
Closing Date), subject to certain limitations contained in Section
3.1 of the Indenture, until the principal of this Note is paid or
made available for payment. Interest on this Note will accrue for
each Distribution Date from and including the preceding Distribution
Date (or, in the case of the initial Distribution Date, from and
including the Closing Date) to but excluding such Distribution Date.
Interest will be computed on the basis of actual days elapsed and a
360-day year. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse side hereof.
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 shall be applied first to interest due and payable on this Note
as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this
Note set forth on the reverse hereof, which shall have the same
effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has
been executed by the Indenture Trustee whose name appears below by
manual signature, this Note shall not be entitled to any benefit
under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: January 25, 2001
FORD CREDIT AUTO OWNER TRUST 2001-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely
as Owner Trustee of Ford Credit
Auto Owner Trust 2001-A
By:
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Notes designated above and referred to
in the within-mentioned Indenture.
Date: January 25, 2001
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Class A-4 Floating Rate Asset Backed
Notes (the "Class A-4 Notes") which, together with the Issuer's Class
A-1 5.776% Asset Backed Notes (the "Class A-1 Notes"), Class A-2
5.494% Asset Backed Notes (the "Class A-2 Notes"), Class A-3 5.35%
Asset Backed Notes (the "Class A-3 Notes"), Class A-5 Floating Rate
Asset Backed Notes (the "Class A-5 Notes" and, together with the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes, the "Class A Notes") and Class B 5.96% Asset Backed
Notes (the "Class B Notes" and, together with the Class A Notes, the
"Notes"), are issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a
statement of 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 subordinated to the
rights of the Swap Counterparties to receive payments (other than
Swap Termination Payments) pursuant to the Interest Rate Swap
Agreements. 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.
Principal of the Class A-4 Notes will be payable on
each Distribution Date in an amount described on the face hereof.
"Distribution Date" means the fifteenth day of each month, or, if any
such day is not a Business Day, the next succeeding Business Day,
commencing in February 2001.
As described on the face hereof, the entire unpaid
principal amount of this Note shall be due and payable on the Class
A-4 Final Scheduled Distribution Date. Notwithstanding the foregoing,
the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default shall have occurred
and be continuing and the Indenture Trustee or the Noteholders of
Notes evidencing not less than a majority of the principal amount of
the Class A Notes have declared the Notes to be immediately due and
payable in the manner provided in Section 5.2 of the Indenture. All
principal payments on the Class A-4 Notes shall be made pro rata to
the Noteholders entitled thereto.
Payments of interest on this Note on each
Distribution Date, together with the installment of principal, if
any, to the extent not in full payment of this Note, shall be made to
the Person whose name appears as the Registered Noteholder of the
Note (or one or more Predecessor Notes) on the Note Register as of
the close of business on each Record Date either by wire transfer in
immediately available funds, to the account of such Noteholder at a
bank or other entity having appropriate facilities therefor, if such
Noteholder shall have provided to the Note Registrar appropriate
written instructions at least five (5) Business Days prior to such
Distribution 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 postage prepaid to such Person's address as
it appears on the Note Register on such Record Date; provided that,
unless Definitive Notes have been issued to Note Owners, with respect
to Notes registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds
to the account designated by such 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 (or any
one or more Predecessor Notes) effected by any payments made on any
Distribution Date shall be binding 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 noted
hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal
amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Noteholder hereof as of the Record Date
preceding such Distribution Date by notice mailed or transmitted by
facsimile prior to such Distribution Date, and the amount then due
and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal 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 shall pay interest on overdue
installments of interest at the Class A-4 Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and
the Class B 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 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 a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of
a Note or, in the case of a Note Owner, a beneficial interest in a
Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner
Trustee or the Indenture Trustee on the Notes or under the Indenture
or any certificate or other writing delivered in connection
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 or employee 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 and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid
capital contribution for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
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 at any time institute
against the Seller, the General Partner or the Issuer, or join in any
institution against the Seller, the General Partner or the Issuer of,
any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or State
bankruptcy or similar law in connection with any obligations relating
to the Notes, the Indenture or 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, the Notes will qualify as
indebtedness of the Issuer secured by the Indenture Trust Estate.
Each Noteholder, by its acceptance of a Note (and each Note Owner by
its acceptance of 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.
Prior to the due presentment for registration of
transfer of this Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in
whose name this Note (as of the day of determination or as of such
other date as may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Note be overdue,
and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions
requiring the consent of all Noteholders affected thereby as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Issuer and the rights of the Noteholders under
the Indenture at any time by the Issuer with the consent of the
Noteholders of Notes evidencing not less than a majority of the
principal amount of the Controlling Note Class and with the consent
of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related
Interest Rate Swap Agreements or modifies the obligations of, or
impairs the ability of the Issuer to fully perform any of its
obligations under such Interest Rate Swap Agreements. 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 or the Swap Counterparties 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 Note Class, on behalf of all Noteholders, to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Noteholder of this Note (or any one or
more Predecessor Notes) shall 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 therein set forth.
This Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York,
without reference to its conflicts of law provisions.
No reference herein to the Indenture, and no
provision of this Note or of the Indenture, shall 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 herein prescribed.
Anything herein to the contrary notwithstanding,
except as expressly provided in the Basic Documents, none of The
Chase Manhattan Bank, in its individual capacity, The Bank of New
York, 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 shall
be personally liable for, nor shall 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 his acceptance hereof, agrees that,
except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Noteholder shall have no
claim against any of the foregoing for any deficiency, loss or claim
therefrom; provided, however, that nothing contained herein shall 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.
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 thereunder, and hereby irrevocably
constitutes and appoints _________________, attorney, to transfer
said Note on the books kept for registration thereof, 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 STAMP or such other
"signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT A-5
FORM OF CLASS A-5 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 HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $359,785,000
Xx. X-0 XXXXX XX. 00000X XX 0
FORD CREDIT AUTO OWNER TRUST 2001-A
CLASS A-5 FLOATING RATE ASSET BACKED NOTES
Ford Credit Auto Owner Trust 2001-A, a business
trust organized and existing under the laws of the State of Delaware
(herein referred to as the "Issuer"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal
sum of THREE HUNDRED FIFTY-NINE MILLION SEVEN HUNDRED EIGHTY-FIVE
THOUSAND DOLLARS payable on each Distribution Date in an amount equal
to the aggregate amount, if any, payable to Noteholders of Class A-5
Notes on such Distribution Date from the Principal Distribution
Account in respect of principal on the Class A-5 Notes pursuant to
Section 3.1 of the Indenture dated as of January 1, 2001 (as from
time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and The Chase Manhattan
Bank, a New York corporation, as Indenture Trustee (in such capacity
the "Indenture Trustee"); provided, however, that the entire unpaid
principal amount of this Note shall be due and payable on the earlier
of the April 2005 Distribution Date (the "Class A-5 Final Scheduled
Distribution Date") and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. Capitalized terms used but not
defined herein are defined in Article I of the Indenture, which also
contains rules as to construction that shall be applicable herein.
The Issuer shall pay interest on this Note on each
Distribution Date at a per annum rate equal to the London interbank
offered rate ("LIBOR") for one-month U.S. Dollar deposits in Europe
(determined as set forth in the Indenture) on the applicable LIBOR
Determination Date, in each case plus 0.12% on the principal amount
of this Note outstanding on the preceding Distribution Date, after
giving effect to all payments of principal made on the preceding
Distribution Date (provided, however, that interest shall accrue from
the Closing Date to the initial Distribution Date, and shall be
payable on the initial Distribution Date, at a per annum rate equal
to 5.91250% on the original principal amount outstanding on the
Closing Date), subject to certain limitations contained in Section
3.1 of the Indenture, until the principal of this Note is paid or
made available for payment. Interest on this Note will accrue for
each Distribution Date from and including the preceding Distribution
Date (or, in the case of the initial Distribution Date, from and
including the Closing Date) to but excluding such Distribution Date.
Interest will be computed on the basis of actual days elapsed and a
360-day year. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse side hereof.
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 shall be applied first to interest due and payable on this Note
as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this
Note set forth on the reverse hereof, which shall have the same
effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has
been executed by the Indenture Trustee whose name appears below by
manual signature, this Note shall not be entitled to any benefit
under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: January 25, 2001
FORD CREDIT AUTO OWNER TRUST 2001-A
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee of Ford Credit
Auto Owner Trust 2001-A
By:
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-5 Notes designated above and referred to
in the within-mentioned Indenture.
Date: January 25, 2001
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Class A-5 Floating Rate Asset Backed
Notes (the "Class A-5 Notes") which, together with the Issuer's Class
A-1 5.776% Asset Backed Notes (the "Class A-1 Notes"), Class A-2
5.494% Asset Backed Notes (the "Class A-2 Notes"), Class A-3 5.35%
Asset Backed Notes (the "Class A-3 Notes"), Class A-4 Floating Rate
Asset Backed Notes (the "Class A-4 Notes" and, together with the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-5 Notes, the "Class A Notes") and Class B 5.96% Asset Backed
Notes (the "Class B Notes" and, together with the Class A Notes, the
"Notes"), are issued under the Indenture, to which Indenture and all
indentures supplemental thereto reference is hereby made for a
statement of 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-5 Notes are and will be equally and
ratably secured by the collateral pledged as security therefor as
provided in the Indenture. The Class A-5 Notes are subordinated to
the rights of the Swap Counterparties to receive payments (other than
Swap Termination Payments) pursuant to the Interest Rate Swap
Agreements. 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
Principal of the Class A-5 Notes will be payable on
each Distribution Date in an amount described on the face hereof.
"Distribution Date" means the fifteenth day of each month, or, if any
such day is not a Business Day, the next succeeding Business Day,
commencing in February 2001.
As described on the face hereof, the entire unpaid
principal amount of this Note shall be due and payable on the earlier
of the Class A-5 Final Scheduled Distribution Date and the Redemption
Date, if any, pursuant to Section 10.1(a) of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture
Trustee or the Noteholders of Notes evidencing not less than a
majority of the principal amount of the Class A Notes have declared
the Notes to be immediately due and payable in the manner provided in
Section 5.2 of the Indenture. All principal payments on the Class A-5
Notes shall be made pro rata to the Noteholders entitled thereto.
Payments of interest on this Note on each
Distribution Date, together with the installment of principal, if
any, to the extent not in full payment of this Note, shall be made to
the Person whose name appears as the Registered Noteholder of the
Note (or one or more Predecessor Notes) on the Note Register as of
the close of business on each Record Date either by wire transfer in
immediately available funds, to the account of such Noteholder at a
bank or other entity having appropriate facilities therefor, if such
Noteholder shall have provided to the Note Registrar appropriate
written instructions at least five (5) Business Days prior to such
Distribution 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 postage prepaid to such Person's address as
it appears on the Note Register on such Record Date; provided that,
unless Definitive Notes have been issued to Note Owners, with respect
to Notes registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds
to the account designated by such 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 (or any
one or more Predecessor Notes) effected by any payments made on any
Distribution Date shall be binding 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 noted
hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal
amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Noteholder hereof as of the Record Date
preceding such Distribution Date by notice mailed or transmitted by
facsimile prior to such Distribution Date, and the amount then due
and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal 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 shall pay interest on overdue
installments of interest at the Class A-5 Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and
the Class B 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 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 a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of
a Note or, in the case of a Note Owner, a beneficial interest in a
Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner
Trustee or the Indenture Trustee on the Notes or under the Indenture
or any certificate or other writing delivered in connection
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 or employee 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 and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid
capital contribution for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
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 at any time institute
against the Seller, the General Partner or the Issuer, or join in any
institution against the Seller, the General Partner or the Issuer of,
any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or State
bankruptcy or similar law in connection with any obligations relating
to the Notes, the Indenture or 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, the Notes will qualify as
indebtedness of the Issuer secured by the Indenture Trust Estate.
Each Noteholder, by its acceptance of a Note (and each Note Owner by
its acceptance of 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.
Prior to the due presentment for registration of
transfer of this Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in
whose name this Note (as of the day of determination or as of such
other date as may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Note be overdue,
and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions
requiring the consent of all Noteholders affected thereby as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Issuer and the rights of the Noteholders under
the Indenture at any time by the Issuer with the consent of the
Noteholders of Notes evidencing not less than a majority of the
principal amount of the Controlling Note Class and with the consent
of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related
Interest Rate Swap Agreements or modifies the obligations of, or
impairs the ability of the Issuer to fully perform any of its
obligations under such Interest Rate Swap Agreements. 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 or the Swap Counterparties 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 Note Class, on behalf of all Noteholders, to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Noteholder of this Note (or any one or
more Predecessor Notes) shall 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 therein set forth.
This Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York,
without reference to its conflicts of law provisions.
No reference herein to the Indenture, and no
provision of this Note or of the Indenture, shall 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 herein prescribed.
Anything herein to the contrary notwithstanding,
except as expressly provided in the Basic Documents, none of The
Chase Manhattan Bank, in its individual capacity, The Bank of New
York, 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 shall
be personally liable for, nor shall 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 his acceptance hereof, agrees that,
except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Noteholder shall have no
claim against any of the foregoing for any deficiency, loss or claim
therefrom; provided, however, that nothing contained herein shall 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.
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 thereunder, and hereby irrevocably
constitutes and appoints _________________, attorney, to transfer
said Note on the books kept for registration thereof, 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 STAMP or such other
"signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT B
FORM OF CLASS B NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED
$108,695,000
No. R-1 CUSIP NO.34527R FL 2
FORD CREDIT AUTO OWNER TRUST 2001-A
CLASS B 5.96% ASSET BACKED NOTES
Ford Credit Auto Owner Trust 2001-A, a business
trust organized and existing under the laws of the State of Delaware
(herein referred to as the "Issuer"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal
sum of ONE HUNDRED EIGHT MILLION SIX HUNDRED NINETY-FIVE THOUSAND
DOLLARS payable on each Distribution Date in an amount equal to the
aggregate amount, if any, payable to Noteholders of Class B Notes on
such Distribution Date from the Principal Distribution Account in
respect of principal on the Class B Notes pursuant to Section 3.1 of
the Indenture dated as of January 1, 2001 (as from time to time
amended, supplemented or otherwise modified and in effect, the
"Indenture"), between the Issuer and The Chase Manhattan Bank, a New
York corporation, as Indenture Trustee (in such capacity the
"Indenture Trustee"); provided, however, that the entire unpaid
principal amount of this Note shall be due and payable on the earlier
of the July 2005 Distribution Date (the "Class B Final Scheduled
Distribution Date") and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. Capitalized terms used but not
defined herein are defined in Article I of the Indenture, which also
contains rules as to construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the
rate per annum shown above on each Distribution 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
Distribution Date (after giving effect to all payments of principal
made on the preceding Distribution Date), subject to certain
limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Distribution Date from and including
the fifteenth day of the calendar month immediately preceding such
Distribution Date (or, in the case of the initial Distribution Date,
from the Closing Date) to but excluding the fifteenth day of the
following calendar month. Interest will be computed on the basis of a
360-day year of twelve 30-day months. Such principal of and interest
on this Note shall be paid in the manner specified on the reverse
hereof.
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 shall be applied first to interest due and payable on this Note
as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this
Note set forth on the reverse hereof, which shall have the same
effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has
been executed by the Indenture Trustee whose name appears below by
manual signature, this Note shall not be entitled to any benefit
under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: January 25, 2001
FORD CREDIT AUTO OWNER TRUST 2001-A
By: THE BANK OF NEW YORK,
not in its individual capacity but solely
as Owner Trustee of Ford Credit
Auto Owner Trust 2001-A
By:
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes designated above and referred to in
the within-mentioned Indenture.
Date: January 25, 2001
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Class B 5.96% Asset Backed Notes
(the "Class B Notes" and, together with the Class A Notes referred to
below, the "Notes") which, together with the Issuer's Class A-1
5.776% Asset Backed Notes (the "Class A-1 Notes"), Class A-2 5.494%
Asset Backed Notes (the "Class A-2 Notes"), Class A-3 5.35% Asset
Backed Notes (the "Class A-3 Notes"), Class A-4 Floating Rate Asset
Backed Notes (the "Class A-4 Notes") and Class A-5 Floating Rate
Asset Backed Notes (the "Class A-5 Notes" and, together with the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes, the "Class A Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of 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 Counterparties pursuant to the Interest Rate Swap Agreements as
and to the extent provided in the Indenture.
Principal of the Class B Notes will be payable on
each Distribution Date in an amount described on the face hereof.
"Distribution Date" means the fifteenth day of each month, or, if any
such day is not a Business Day, the next succeeding Business Day,
commencing in February 2001.
As described on the face hereof, the entire unpaid
principal amount of this Note shall be due and payable on the earlier
of the Class B Final Scheduled Distribution Date and the Redemption
Date, if any, pursuant to Section 10.1(a) of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture
Trustee or the Noteholders of Notes evidencing not less than a
majority of the principal amount of the Controlling Note Class have
declared the Notes to be immediately due and payable in the manner
provided in Section 5.2 of the Indenture. All principal payments on
the Class B Notes shall be made pro rata to the Noteholders entitled
thereto.
Payments of interest on this Note on each
Distribution Date, together with the installment of principal, if
any, to the extent not in full payment of this Note, shall be made to
the Person whose name appears as the Registered Noteholder of the
Note (or one or more Predecessor Notes) on the Note Register as of
the close of business on each Record Date either by wire transfer in
immediately available funds, to the account of such Noteholder at a
bank or other entity having appropriate facilities therefor, if such
Noteholder shall have provided to the Note Registrar appropriate
written instructions at least five (5) Business Days prior to such
Distribution 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 postage prepaid to such Person's address as
it appears on the Note Register on such Record Date; provided that,
unless Definitive Notes have been issued to Note Owners, with respect
to Notes registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds
to the account designated by such 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 (or any
one or more Predecessor Notes) effected by any payments made on any
Distribution Date shall be binding 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 noted
hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal
amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Noteholder hereof as of the Record Date
preceding such Distribution Date by notice mailed or transmitted by
facsimile prior to such Distribution Date, and the amount then due
and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal 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 shall pay interest on overdue
installments of interest at the Class B Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and
the Class B 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 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 a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of
a Note or, in the case of a Note Owner, a beneficial interest in a
Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner
Trustee or the Indenture Trustee on the Notes or under the Indenture
or any certificate or other writing delivered in connection
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 or employee 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 and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid
capital contribution for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
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 at any time institute
against the Seller, the General Partner or the Issuer, or join in any
institution against the Seller, the General Partner or the Issuer of,
any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or State
bankruptcy or similar law in connection with any obligations relating
to the Notes, the Indenture or 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, the Notes will qualify as
indebtedness of the Issuer secured by the Indenture Trust Estate.
Each Noteholder, by its acceptance of a Note (and each Note Owner by
its acceptance of 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.
Prior to the due presentment for registration of
transfer of this Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in
whose name this Note (as of the day of determination or as of such
other date as may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Note be overdue,
and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions
requiring the consent of all Noteholders affected thereby as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Issuer and the rights of the Noteholders under
the Indenture at any time by the Issuer with the consent of the
Noteholders of Notes evidencing not less than a majority of the
principal amount of the Controlling Note Class and with the consent
of the Swap Counterparties if such amendment adversely affects the
rights or obligations of the Swap Counterparties under the related
Interest Rate Swap Agreements or modifies the obligations of, or
impairs the ability of the Issuer to fully perform any of its
obligations under such Interest Rate Swap Agreements. 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 or the Swap Counterparties 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 Note Class, on behalf of all Noteholders, to waive
compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Noteholder of this Note (or any one or
more Predecessor Notes) shall 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 therein set forth.
This Note and the Indenture shall be governed by,
and construed in accordance with the laws of the State of New York,
without reference to its conflicts of law provisions.
No reference herein to the Indenture, and no
provision of this Note or of the Indenture, shall 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 herein prescribed.
Anything herein to the contrary notwithstanding,
except as expressly provided in the Basic Documents, none of The
Chase Manhattan Bank, in its individual capacity, The Bank of New
York, 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 shall
be personally liable for, nor shall 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 his acceptance hereof, agrees that,
except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Noteholder shall have no
claim against any of the foregoing for any deficiency, loss or claim
therefrom; provided, however, that nothing contained herein shall 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.
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 thereunder, and hereby irrevocably
constitutes and appoints _________________, attorney, to transfer
said Note on the books kept for registration thereof, 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 STAMP or such other
"signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
EXHIBIT C
FORM OF NOTE DEPOSITORY AGREEMENT
SCHEDULE A
Schedule of Receivables
Provided to the Indenture Trustee at the Closing
APPENDIX A
Definitions and Usage
See Tab 14
