Exhibit 4.1
INDENTURE
between
FORD CREDIT AUTO OWNER TRUST 2000-C,
as Issuer
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee
Dated as of June 1, 2000
<PAGE>
CROSS REFERENCE TABLE (1)(2)
<TABLE>
<CAPTION>
TIA Indenture
Section Section
<S> <C>
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
</TABLE>
-----------------------
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.
<PAGE>
TABLE OF CONTENTS
ARTICLE I
<TABLE>
<S> <C> <C>
DEFINITIONS, USAGE AND INCORPORATION BY REFERENCE 3
SECTION 1.1 Definitions and Usage 3
SECTION 1.2 Incorporation by Reference of Trust Indenture Act 3
</TABLE>
ARTICLE II
<TABLE>
<S> <C> <C> <C>
THE NOTES......................................................................................4
SECTION 2.1 Form 4
SECTION 2.2 Execution, Authentication and Delivery 4
SECTION 2.3 Temporary Notes 5
SECTION 2.4 Tax Treatment 6
SECTION 2.5 Registration; Registration of Transfer
and Exchange 6
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes 8
SECTION 2.7 Persons Deemed Owners 9
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 14
SECTION 2.13 Definitive Notes 14
SECTION 2.14 Authenticating Agents 14
</TABLE>
<PAGE>
ARTICLE III
<TABLE>
<S> <C> <C>
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 19
SECTION 3.5 Protection of Indenture Trust Estate 19
SECTION 3.6 Opinions as to Indenture Trust Estate 20
SECTION 3.7 Performance of Obligations;
Servicing of Receivables 21
SECTION 3.8 Negative Covenants 23
SECTION 3.9 Annual Statement as to Compliance 24
SECTION 3.10 Issuer May Consolidate, etc.,
Only on Certain Terms 25
SECTION 3.11 Successor or Transferee 27
SECTION 3.12 No Other Business 28
SECTION 3.13 No Borrowing 28
SECTION 3.14 Servicer's Obligations 28
SECTION 3.15 Guarantees, Loans, Advances and
Other Liabilities 28
SECTION 3.16 Capital Expenditures 28
SECTION 3.17 Further Instruments and Acts 28
SECTION 3.18 Restricted Payments 29
SECTION 3.19 Notice of Events of Default 29
SECTION 3.20 Removal of Administrator 29
</TABLE>
ARTICLE IV
<TABLE>
<S> <C> <C>
SATISFACTION AND DISCHARGE.............................. 30
SECTION 4.1 Satisfaction and Discharge of Indenture 30
SECTION 4.2 Satisfaction, Discharge and Defeasance of
Notes 31
SECTION 4.3 Application of Trust Money 33
SECTION 4.4 Repayment of Monies Held by Note Paying 33
Agent
</TABLE>
<PAGE>
ARTICLE V
<TABLE>
<S> <C> <C>
REMEDIES....................... 35
SECTION 5.1 Events of Default 35
SECTION 5.2 Acceleration of Maturity;
Rescission and Annulment 37
SECTION 5.3 Collection of Indebtedness and Suits
for Enforcement by Indenture 38
SECTION 5.4 Remedies; Priorities 41
SECTION 5.5 Optional Preservation of the Receivables 45
SECTION 5.6 Limitation of Suits 46
SECTION 5.7 Unconditional Rights of Noteholders
To Receive Principal and Interest 47
SECTION 5.8 Restoration of Rights and Remedies 47
SECTION 5.9 Rights and Remedies Cumulative 47
SECTION 5.10 Delay or Omission Not a Waiver 48
SECTION 5.11 Control by Controlling Note Class of Noteholders 48
SECTION 5.12 Waiver of Past Defaults 49
SECTION 5.13 Undertaking for Costs 49
SECTION 5.14 Waiver of Stay or Extension Laws 50
SECTION 5.15 Action on Notes 50
SECTION 5.16 Performance and Enforcement of Certain Obligations 50
</TABLE>
<PAGE>
ARTICLE VI
<TABLE>
<S> <C> <C>
THE INDENTURE TRUSTEE.. .................................... 52
SECTION 6.1 Duties of Indenture Trustee 52
SECTION 6.2 Rights of Indenture Trustee 53
SECTION 6.3 Individual Rights of Indenture Trustee 55
SECTION 6.4 Indenture Trustee's Disclaimer 55
SECTION 6.5 Notice of Defaults. 55
SECTION 6.6 Reports by Indenture Trustee to Noteholders 55
SECTION 6.7 Compensation and Indemnity 55
SECTION 6.8 Replacement of Indenture Trustee 56
SECTION 6.9 Successor Indenture Trustee by Merger 58
SECTION 6.10 Appointment of Co-Indenture Trustee
or Separate Indenture 59
SECTION 6.11 Eligibility; Disqualification 60
SECTION 6.12 Preferential Collection of Claims Against Issuer 62
</TABLE>
ARTICLE VII
<TABLE>
<S> <C> <C>
NOTEHOLDERS' LISTS AND REPORTS 63
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and 63
Addresses of Noteholders
SECTION 7.2 Preservation of Information; Communications 63
to Noteholders
SECTION 7.3 Reports by Issuer 64
SECTION 7.4 Reports by Indenture Trustee 64
</TABLE>
<PAGE>
ARTICLE VIII
<TABLE>
<S> <C> <C>
ACCOUNTS, DISBURSEMENTS AND RELEASES................................... 66
SECTION 8.1 Collection of Money 66
SECTION 8.2 Trust Accounts and Payahead Account 66
SECTION 8.3 General Provisions Regarding Accounts 70
SECTION 8.4 Release of Indenture Trust Estate 72
SECTION 8.5 Opinion of Counsel 73
</TABLE>
ARTICLE IX
<TABLE>
<S> <C> <C>
SUPPLEMENTAL INDENTURES........................... 74
SECTION 9.1 Supplemental Indentures Without Consent of 74
Noteholders
SECTION 9.2 Supplemental Indentures with 76
Consent of Noteholders
SECTION 9.3 Execution of Supplemental Indentures 78
SECTION 9.4 Effect of Supplemental 79
SECTION 9.5 Conformity with Trust 79
SECTION 9.6 Reference in Notes to 79
Supplemental Indentures
</TABLE>
ARTICLE X
<TABLE>
<S> <C> <C>
REDEMPTION OF NOTES.................................................... 80
SECTION 10.1 Redemption 80
SECTION 10.2 Form of Redemption Notice 80
SECTION 10.3 Notes Payable on Redemption Date 81
</TABLE>
<PAGE>
ARTICLE XI
<TABLE>
<S> <C> <C>
MISCELLANEOUS.....................................................................................82
SECTION 11.1 Compliance Certificates and Opinions, etc. 82
SECTION 11.2 Form of Documents Delivered to Indenture Trustee 84
SECTION 11.3 Acts of Noteholders 85
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and 86
SECTION 11.5 Notices to Noteholders; Waiver 87
SECTION 11.6 Alternate Payment and Notice Provisions 88
SECTION 11.7 Conflict with Trust Indenture Act 88
SECTION 11.8 Effect of Headings and Table of Contents 89
SECTION 11.9 Successors and Assigns 89
SECTION 11.10 Separability 89
SECTION 11.11 Benefits of Indenture 89
SECTION 11.12 Legal Holidays 89
SECTION 11.13 Governing Law 90
SECTION 11.14 Counterparts 90
SECTION 11.15 Recording of Indenture 90
SECTION 11.16 Trust Obligation 90
SECTION 11.17 No Petition 91
SECTION 11.18 Inspection 91
</TABLE>
<PAGE>
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
<PAGE>
<PAGE>
INDENTURE, dated as of June 1, 2000, (as from time to time amended, supplemented
or otherwise modified and in effect, this "Indenture") between FORD CREDIT AUTO
OWNER TRUST 2000-C, a Delaware business trust, as Issuer, and THE CHASE
MANHATTAN BANK, a New York corporation, as trustee and not in its individual
capacity (in such capacity, the "Indenture Trustee").
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 6.621% Asset
Backed Notes (the "Class A-1 Notes"), Class A-2 6.822% Asset Backed Notes (the
"Class A-2 Notes"), Class A-3 7.13% Asset Backed Notes (the "Class A-3 Notes"),
Class A-4 7.24% Asset Backed Notes (the "Class A-4 Notes"), Class A-5 7.26%
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 7.50% Asset Backed Notes (the "Class B Notes" and,
together with the Class A Notes, the "Notes"):
<PAGE>
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date, as
Indenture Trustee for the benefit of the Noteholders, 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; and (m) 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 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.
The Indenture Trustee, as Indenture Trustee on behalf of the Noteholders,
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 may be adequately and effectively protected.
<PAGE>
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.
<PAGE>
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 A-1, Exhibit A-2, Exhibit A-3,
Exhibit A-4, 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 A-1, Exhibit A-2, Exhibit A-3, Exhibit A-4, Exhibit
A-5 and Exhibit B are part of the terms of this Indenture and are incorporated
herein by reference.
<PAGE>
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 $ 197,000,000
Class B Notes $ 99,059,000
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.
<PAGE>
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]
<PAGE>
(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.
<PAGE>
(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.
<PAGE>
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 A-1,
Exhibit A-2, Exhibit A-3, Exhibit A-4, 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 A-1, Exhibit A-2, Exhibit A-3, Exhibit A-4, Exhibit A-5 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.
<PAGE>
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;
<PAGE>
(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.
<PAGE>
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.
<PAGE>
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, 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:
<PAGE>
(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).
<PAGE>
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 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.
<PAGE>
(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.
<PAGE>
(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.
<PAGE>
(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.
<PAGE>
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
<PAGE>
(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 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, (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
<PAGE>
(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).
<PAGE>
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 Administrator,
the Owner Trustee, the Indenture Trustee, 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 or the
Purchase 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.
<PAGE>
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 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
<PAGE>
(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 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;
(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;
<PAGE>
(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, 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.
<PAGE>
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
<PAGE>
(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.
(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 if the Event of Default giving rise to such
acceleration had not occurred; and
(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.
<PAGE>
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, 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:
<PAGE>
(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) and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Noteholders 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 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 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 any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the
rights of any Noteholder or 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 in respect of which such judgment has been recovered.
<PAGE>
(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
(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; 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
<PAGE>
(y)the Indenture Trustee obtains the consent of
Noteholders of Notes evidencing not less than
66b% 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.
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 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 on the Class A Notes for
interest;
(iv) fourth, 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;
(v) fifth, 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;
(vi) sixth, 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;
(vii) seventh, 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;
<PAGE>
(viii) eighth, 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;
(ix) ninth, 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;
(x) tenth, 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;
(xi) eleventh, to the Issuer for amounts required to be
distributed to the Certificateholders pursuant to the Trust
Agreement and the Sale and Servicing Agreement; and
(xii) twelfth, to the Seller, any money or property remaining
after payment in full of the amounts described in clauses
(i)-(xi) 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. A Noteholder or Certificateholder
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 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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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) 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 66b% 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.
<PAGE>
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.
<PAGE>
(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.
<PAGE>
(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.
<PAGE>
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:
<PAGE>
(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.
<PAGE>
(b) Any successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and
to the Issuer. 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.
<PAGE>
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, 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.
<PAGE>
(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.
<PAGE>
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.
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).
<PAGE>
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.
<PAGE>
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.
(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 Noteholders of Class A Notes, the Accrued
Class A Note Interest; provided 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;
<PAGE>
(iii) third, to the Principal Distribution Account, the First
Priority Principal Distribution Amount, if any;
(iv) fourth, 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;
(v) fifth, to the Principal Distribution Account, the Second
Priority Principal Distribution Amount, if any;
(vi) sixth, to the Certificate Interest Distribution Account,
the Accrued Class C Certificate Interest;
(vii) seventh, to the Certificate Interest Distribution
Account, the Accrued Class D Certificate Interest;
(viii) eighth, to the Reserve Account, the amount, if any,
required to reinstate the amount in the Reserve Account up to
the Specified Reserve Balance;
(ix) ninth, to the Principal Distribution Account, the
Regular Principal Distribution Amount, if any; and
(x) tenth, 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) and (ii) 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) and (iv)
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:
<PAGE>
(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;
<PAGE>
(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).
<PAGE>
(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, release any remaining portion of
the Indenture Trust Estate that secured the Notes 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 an Officer's Certificate, 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.
<PAGE>
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;
(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)
the Rating Agency Condition shall have been satisfied with respect to
such action and (iii) 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.
<PAGE>
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; 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;
<PAGE>
(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 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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
(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.
<PAGE>
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.
<PAGE>
(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 2000-C, in care of
The Bank of New York, 101 Barclay Street, Floor 12 East, New
York, New York, 10256, Attention: Asset-Backed Finance Unit,
with a copy to the Administrator at One American Road,
Dearborn, Michigan 48126, Attention: 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: Moody's Investors Service, Inc., ABS Monitoring
Department, 99 Church Street, New York, New York 10007, (ii) in case
of Standard & Poor's, at the following address: Standard & Poor's
Ratings Services, 55 Water Street, 40th Floor, New York, New York
10041, Attention: Asset Backed Surveillance Department and (iii) in
the case of Fitch, at the following address: Fitch, Inc., 1 State
Street Plaza, New York, New York 10004, Attention: Asset Backed
Surveillance.
<PAGE>
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.
<PAGE>
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, 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.
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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 2000-C
By: THE BANK OF NEW YORK,
not in its individual
capacity but solely as Owner
Trustee of Ford Credit Auto
Owner Trust 2000-C
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Name:
Title:
<PAGE>
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 $197,000,000
No. R-1 CUSIP NO.34527R DV 2
FORD CREDIT AUTO OWNER TRUST 2000-C
CLASS A-1 6.621% ASSET BACKED NOTES
Ford Credit Auto Owner Trust 2000-C, 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 AND NINETY-SEVEN 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 June 1, 2000 (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 2000 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.
<PAGE>
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.]
<PAGE>
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: June 22, 2000
FORD CREDIT AUTO OWNER TRUST 2000-C
By: THE BANK OF NEW YORK,
not in its individual
capacity but solely as Owner
Trustee of Ford Credit Auto
Owner Trust 2000-C
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: June 22, 2000
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Class A-1 6.621% Asset Backed Notes
(the "Class A-1 Notes") which, together with the Issuer's Class A-2
6.822% Asset Backed Notes (the "Class A-2 Notes"), Class A-3 7.13%
Asset Backed Notes (the "Class A-3 Notes"), Class A-4 7.24% Asset
Backed Notes (the "Class A-4 Notes"), Class A-5 7.26% 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 7.50% 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 senior in right of
payment to 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, each as and to the
extent provided in 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 July 2000.
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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. The Indenture also
permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of the
Noteholders provided certain conditions are satisfied. In addition,
the Indenture contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling 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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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 $330,500,000
No. R-1 CUSIP NO.34527R DW 0
FORD CREDIT AUTO OWNER TRUST 2000-C
CLASS A-2 6.822% ASSET BACKED NOTES
Ford Credit Auto Owner Trust 2000-C, 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 AND THIRTY MILLION FIVE HUNDRED THOUSAND 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 June 1, 2000 (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 March 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.
<PAGE>
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.]
<PAGE>
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: June 22, 2000
FORD CREDIT AUTO OWNER TRUST 2000-C
By: THE BANK OF NEW YORK,
not in its individual
capacity but solely as Owner
Trustee of Ford Credit Auto
Owner Trust 2000-C
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: June 22, 2000
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Class A-2 6.822% Asset Backed Notes
(the "Class A-2 Notes") which, together with the Issuer's Class A-1
6.621% Asset Backed Notes (the "Class A-1 Notes"), Class A-3 7.13%
Asset Backed Notes (the "Class A-3 Notes"), Class A-4 7.24% Asset
Backed Notes (the "Class A-4 Notes"), Class A-5 7.26% 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 7.50% 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 in
right of payment to the Class A-1 Notes and are senior in right of
payment to the Class A-3 Notes, the Class A-4 Notes, the Class A-5
Notes and the Class B Notes, each as and to the extent provided in
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 July 2000.
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.
<PAGE>
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.
<PAGE>
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. The Indenture also
permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of the
Noteholders provided certain conditions are satisfied. In addition,
the Indenture contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling 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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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 $995,000,000
No. R-1 CUSIP NO.34527R DX 8
FORD CREDIT AUTO OWNER TRUST 2000-C
CLASS A-3 7.13% ASSET BACKED NOTES
Ford Credit Auto Owner Trust 2000-C, 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 NINE HUNDRED AND NINETY-FIVE 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 June 1, 2000 (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 September 2002 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.
<PAGE>
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.]
<PAGE>
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: June 22, 2000
FORD CREDIT AUTO OWNER TRUST 2000-C
By: THE BANK OF NEW YORK,
not in its individual
capacity but solely as Owner
Trustee of Ford Credit Auto
Owner Trust 2000-C
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: June 22, 2000
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Class A-3 7.13% Asset Backed Notes
(the "Class A-3 Notes") which, together with the Issuer's Class A-1
6.621% Asset Backed Notes (the "Class A-1 Notes"), Class A-2 6.822%
Asset Backed Notes (the "Class A-2 Notes"), Class A-4 7.24% Asset
Backed Notes (the "Class A-4 Notes"), Class A-5 7.26% 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 7.50% 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 are subordinated in
right of payment to the Class A-1 Notes and the Class A-2 Notes and
are senior in right of payment to the Class A-4 Notes, the Class A-5
Notes and the Class B Notes, each as and to the extent provided in
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 July 2000.
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.
<PAGE>
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.
<PAGE>
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. The Indenture also
permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of the
Noteholders provided certain conditions are satisfied. In addition,
the Indenture contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling 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.
<PAGE>
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.
<PAGE>
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 $990,000,000
No. R-1 CUSIP NO.34527R DY 6
FORD CREDIT AUTO OWNER TRUST 2000-C
CLASS A-4 7.24% ASSET BACKED NOTES
Ford Credit Auto Owner Trust 2000-C, 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 NINE HUNDRED AND NINETY 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 June 1, 2000 (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 February 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 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.
<PAGE>
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.]
<PAGE>
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: June 22, 2000
FORD CREDIT AUTO OWNER TRUST 2000-C
By: THE BANK OF NEW YORK,
not in its individual
capacity but solely as Owner
Trustee of Ford Credit Auto
Owner Trust 2000-C
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: June 22, 2000
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Class A-4 7.24% Asset Backed Notes
(the "Class A-4 Notes") which, together with the Issuer's Class A-1
6.621% Asset Backed Notes (the "Class A-1 Notes"), Class A-2 6.822%
Asset Backed Notes (the "Class A-2 Notes"), Class A-3 7.13% Asset
Backed Notes (the "Class A-3 Notes"), Class A-5 7.26% 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 7.50% 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 are subordinated in
right of payment to the Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes and are senior in right of payment to the Class A-5
Notes and the Class B Notes, each as and to the extent provided in
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 July 2000.
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.
<PAGE>
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.
<PAGE>
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. The Indenture also
permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of the
Noteholders provided certain conditions are satisfied. In addition,
the Indenture contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling 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.
<PAGE>
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.
<PAGE>
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 $162,107,000
No. R-1 CUSIP NO. 34527R DZ 3
FORD CREDIT AUTO OWNER TRUST 2000-C
CLASS A-5 7.26% ASSET BACKED NOTES
Ford Credit Auto Owner Trust 2000-C, 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 SIXTY-TWO MILLION ONE HUNDRED AND SEVEN 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 June 1, 2000 (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 2004 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 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.
<PAGE>
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.]
<PAGE>
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: June 22, 2000
FORD CREDIT AUTO OWNER TRUST 2000-C
BBy: THE BANK OF NEW YORK,
not in its individual
capacity but solely as Owner
Trustee of Ford Credit Auto
Owner Trust 2000-C
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: June 22, 2000
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Class A-5 7.26% Asset Backed Notes
(the "Class A-5 Notes") which, together with the Issuer's Class A-1
6.621% Asset Backed Notes (the "Class A-1 Notes"), Class A-2 6.822%
Asset Backed Notes (the "Class A-2 Notes"), Class A-3 7.13% Asset
Backed Notes (the "Class A-3 Notes"), Class A-4 7.24% 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 7.50% 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 in
right of payment to the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes and are senior in right of
payment to the Class B Notes, each as and to the extent provided in
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 July 2000.
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.
<PAGE>
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.
<PAGE>
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. The Indenture also
permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of the
Noteholders provided certain conditions are satisfied. In addition,
the Indenture contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling 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.
<PAGE>
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.
<PAGE>
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 $99,059,000
No. R-1 CUSIP NO.34527R EA 7
FORD CREDIT AUTO OWNER TRUST 2000-C
CLASS B 7.50% ASSET BACKED NOTES
Ford Credit Auto Owner Trust 2000-C, 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 NINETY-NINE MILLION FIFTY-NINE 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 June 1, 2000 (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 October 2004
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.
<PAGE>
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.]
<PAGE>
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: June 22, 2000
FORD CREDIT AUTO OWNER TRUST 2000-C
By: THE BANK OF NEW YORK,
not in its individual
capacity but solely as Owner
Trustee of Ford Credit Auto
Owner Trust 2000-C
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: June 22, 2000
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its Class B 7.50% 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
6.621% Asset Backed Notes (the "Class A-1 Notes"), Class A-2 6.822%
Asset Backed Notes (the "Class A-2 Notes"), Class A-3 7.13% Asset
Backed Notes (the "Class A-3 Notes"), Class A-4 7.24% Asset Backed
Notes (the "Class A-4 Notes") and Class A-5 7.26% 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 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 July 2000.
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.
<PAGE>
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.
<PAGE>
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. The Indenture also
permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of the
Noteholders provided certain conditions are satisfied. In addition,
the Indenture contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling 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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
Exhibit C
[FORM OF NOTE DEPOSITORY AGREEMENT]
<PAGE>
SCHEDULE A
Schedule of Receivables
[Provided to the Indenture Trustee at the Closing]
<PAGE>
APPENDIX A
Definitions and Usage
