Exhibit 4.1
INDENTURE
between
FORD CREDIT AUTO OWNER TRUST 2000-F,
as Issuer
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee
Dated as of October 1, 2000
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CROSS REFERENCE TABLE1
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TIA Indenture
Section Section
310 (a)(1)................................................................................... 6.11
(a)(2)................................................................................... 6.11
(a)(3)................................................................................... 6.10
(a)(4)................................................................................. N.A.2
(a)(5)................................................................................... 6.11
(b) ................................................................................. 6.8;6.11
(c) .................................................................................... N.A.
311 (a) .................................................................................... 6.12
(b) .................................................................................... 6.12
(c) .................................................................................... N.A.
312 (a) .................................................................................... 7.1
(b) .................................................................................... 7.2
(c) .................................................................................... 7.2
313 (a) .................................................................................... 7.4
(b)(1)................................................................................... 7.4
(b)(2)................................................................................... 11.5
(c) .................................................................................... 7.4
(d) .................................................................................... 7.3
314 (a) .................................................................................... 11.15
(b) .................................................................................... 11.1
(c)(1)................................................................................... 11.1
(c)(2)................................................................................... 11.1
(c)(3)................................................................................... 11.1
(d) .................................................................................... 11.1
(e) .................................................................................... 11.1
(f) .................................................................................... 11.1
315 (a) .................................................................................... 6.1
(b) ..................................................................................6.5;11.5
(c) .................................................................................... 6.1
(d) .................................................................................... 6.1
(e) .................................................................................... 5.13
316 (a) (last sentence)...................................................................... 2.8
(a)(1)(A)................................................................................ 5.11
(a)(1)(B)................................................................................ 5.12
(a)(2)................................................................................... N.A.
(b) .................................................................................... 5.7
(c) .................................................................................... N.A
317 (a)(1)................................................................................... 5.3
(a)(2)................................................................................... 5.3
(b) .................................................................................... 3.3
318 (a) .................................................................................... 11.7
-----------------------
1 Note: This Cross Reference Table shall not, for any purpose, be deemed to be part of this
Indenture.
2 N.A. means Not Applicable.
</TABLE>
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS, USAGE AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions and Usage..................................................................3
SECTION 1.2 Incorporation by Reference of Trust Indenture Act......................................3
ARTICLE II
THE NOTES
SECTION 2.1 Form of Notes..........................................................................3
SECTION 2.2 Execution, Authentication and Delivery.................................................4
SECTION 2.3 Temporary Notes........................................................................7
SECTION 2.4 Tax Treatment..........................................................................8
SECTION 2.5 Registration of Transfer and Exchange of Securities....................................8
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes............................................12
SECTION 2.7 Persons Deemed Owners.................................................................13
SECTION 2.8 Payment of Principal and Interest; Defaulted Interest.................................13
SECTION 2.9 Cancellation..........................................................................15
SECTION 2.10 Release of Collateral................................................................16
SECTION 2.11 Book-Entry Notes.....................................................................16
SECTION 2.12 Notices to Clearing Agency...........................................................17
SECTION 2.13 Definitive Notes.....................................................................17
SECTION 2.14 Authenticating Agents................................................................18
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest.....................................................19
SECTION 3.2 Maintenance of Office or Agency.......................................................19
SECTION 3.3 Money for Payments To Be Held in Trust................................................19
SECTION 3.4 Existence.............................................................................21
SECTION 3.5 Protection of Indenture Trust Estate..................................................21
SECTION 3.6 Opinions as to Indenture Trust Estate.................................................22
SECTION 3.7 Performance of Obligations; Servicing of Receivables..................................22
SECTION 3.8 Negative Covenants....................................................................24
SECTION 3.9 Annual Statement as to Compliance.....................................................25
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms..................................26
SECTION 3.11 Successor or Transferee..............................................................28
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 Calculation Agent....................................................................29
SECTION 3.20 Notice of Events of Default..........................................................30
SECTION 3.21 Removal of Administrator.............................................................30
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture...............................................31
SECTION 4.2 Satisfaction, Discharge and Defeasance of Notes.......................................32
SECTION 4.3 Application of Trust Money............................................................33
SECTION 4.4 Repayment of Monies Held by Note Paying Agent.........................................33
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.....................................................................34
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment....................................35
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.............36
SECTION 5.4 Remedies; Priorities..................................................................39
SECTION 5.5 Optional Preservation of the Receivables..............................................42
SECTION 5.6 Limitation of Suits...................................................................43
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and
Interest......................................................................................44
SECTION 5.8 Restoration of Rights and Remedies....................................................44
SECTION 5.9 Rights and Remedies Cumulative........................................................44
SECTION 5.10 Delay or Omission Not a Waiver.......................................................44
SECTION 5.11 Control by Controlling Note Class of Noteholders.....................................45
SECTION 5.12 Waiver of Past Defaults..............................................................45
SECTION 5.13 Undertaking for Costs................................................................46
SECTION 5.14 Waiver of Stay or Extension Laws.....................................................46
SECTION 5.15 Action on Notes......................................................................46
SECTION 5.16 Performance and Enforcement of Certain Obligations...................................46
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee...........................................................48
SECTION 6.2 Rights of Indenture Trustee...........................................................49
SECTION 6.3 Individual Rights of Indenture Trustee................................................50
SECTION 6.4 Indenture Trustee's Disclaimer........................................................50
SECTION 6.5 Notice of Defaults....................................................................50
SECTION 6.6 Reports by Indenture Trustee to Noteholders...........................................51
SECTION 6.7 Compensation and Indemnity............................................................51
SECTION 6.8 Replacement of Indenture Trustee......................................................51
SECTION 6.9 Successor Indenture Trustee by Merger.................................................53
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee....................53
SECTION 6.11 Eligibility; Disqualification........................................................54
SECTION 6.12 Preferential Collection of Claims Against Issuer......................................55
SECTION 6.13 Interest Rate Swap Provisions........................................................55
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders................58
SECTION 7.2 Preservation of Information; Communications to Noteholders............................58
SECTION 7.3 Reports by Issuer.....................................................................59
SECTION 7.4 Reports by Indenture Trustee..........................................................59
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money...................................................................60
SECTION 8.2 Trust Accounts and Payahead Account...................................................60
SECTION 8.3 General Provisions Regarding Accounts.................................................68
SECTION 8.4 Release of Indenture Trust Estate.....................................................69
SECTION 8.5 Opinion of Counsel....................................................................70
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders................................71
SECTION 9.2 Supplemental Indentures with Consent of Noteholders...................................72
SECTION 9.3 Execution of Supplemental Indentures..................................................74
SECTION 9.4 Effect of Supplemental Indenture......................................................75
SECTION 9.5 Conformity with Trust Indenture Act...................................................75
SECTION 9.6 Reference in Notes to Supplemental Indentures.........................................75
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption...........................................................................76
SECTION 10.2 Form of Redemption Notice............................................................76
SECTION 10.3 Notes Payable on Redemption Date.....................................................77
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc............................................77
SECTION 11.2 Form of Documents Delivered to Indenture Trustee.....................................79
SECTION 11.3 Acts of Noteholders..................................................................80
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer, Swap Counterparties and Rating
Agencies......................................................................................81
SECTION 11.5 Notices to Noteholders; Waiver.......................................................81
SECTION 11.6 Alternate Payment and Notice Provisions..............................................82
SECTION 11.7 Conflict with Trust Indenture Act....................................................82
SECTION 11.8 Effect of Headings and Table of Contents.............................................83
SECTION 11.9 Successors and Assigns...............................................................83
SECTION 11.10 Separability........................................................................83
SECTION 11.11 Benefits of Indenture...............................................................83
SECTION 11.12 Legal Holidays......................................................................83
SECTION 11.13 Governing Law.......................................................................83
SECTION 11.14 Counterparts........................................................................83
SECTION 11.15 Recording of Indenture..............................................................83
SECTION 11.16 Trust Obligation....................................................................84
SECTION 11.17 No Petition.........................................................................84
SECTION 11.18 Inspection..........................................................................84
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Exhibit A-1 Form of Class A-1 Note
Exhibit A-2 Form of Class A-2 Note
Exhibit A-3 Form of Class A-3 Note
Exhibit A-4 Form of Class A-4 Note
Exhibit A-5 Form of Class A-5 Note
Exhibit B Form of Class B Note
Exhibit VPTN Form of Variable Pay Term Note
Exhibit C Form of Note Depository Agreement
Exhibit D Form of Investment Letter - VPTN - QIBs
Exhibit E Form of Investment Letter - VPTN - IAIs
Exhibit F Form of Rule 144A Transferor Certificate - VPTN
Schedule A - Schedule of Receivables
Appendix A - Definitions and Usage
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INDENTURE, dated as of October 1, 2000, (as from time to time
amended, supplemented or otherwise modified and in effect, this "Indenture")
between FORD CREDIT AUTO OWNER TRUST 2000-F, a Delaware business trust, as
Issuer, and THE CHASE MANHATTAN BANK, a New York corporation, as trustee (in
such capacity, the "Indenture Trustee") and not in its individual capacity.
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the holders of the Issuer's Class
A-1 Floating Rate Asset Backed Notes (the "Class A-1 Notes"), Class A-2 6.56%
Asset Backed Notes (the "Class A-2 Notes"), Class A-3 6.58% Asset Backed Notes
(the "Class A-3 Notes"), Class A-4 Floating Rate Asset Backed Notes (the "Class
A-4 Notes"), Class A-5 Floating Rate Asset Backed Notes (the "Class A-5 Notes"
and, together with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes
and the Class A-4 Notes, the "Class A Notes"), the Floating Rate Asset Backed
Variable Pay Term Notes, as may be issued from time to time as further stated
herein (the "VPTNs,") and the Class B 7.00% Asset Backed Notes (the "Class B
Notes" and, together with the Class A Notes and the VPTNs, the "Notes") and the
Swap Counterparties:
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Noteholders and the
Swap Counterparty, 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 (including all Additional Receivables acquired from time to time
during the Revolving Period); (b) with respect to Actuarial Receivables, monies
due thereunder on or after the applicable Cutoff Date (including Payaheads) and,
with respect to Simple Interest Receivables, monies due or received thereunder
on or after the applicable Cutoff Date (including in each case any monies
received prior to the applicable Cutoff Date that are due on or after the
applicable 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 applicable Cutoff Date; (m) all of the Issuer's
rights in the Interest Rate Swap Agreements; and (n) all present and future
claims, demands, causes of action and choses in action in respect of any or all
of the foregoing and all payments on or under and all proceeds of every kind and
nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion thereof, voluntary or involuntary, into cash or other
liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which at
any time constitute all or part of or are included in the proceeds of any of the
foregoing (such amounts Granted by the Issuer, collectively, the "Collateral").
The foregoing Grant is made in trust to secure (a) the payment
of principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction, and to
secure compliance with the provisions of this Indenture, all as provided in this
Indenture and (b) payment of amounts payable to the Swap Counterparties under
the Interest Rate Swap Agreements.
The Indenture Trustee, as Indenture Trustee on behalf of the
Noteholders and the Swap Counterparties, acknowledges such Grant, accepts the
trusts under this Indenture in accordance with the provisions of this Indenture
and agrees to perform its duties required in this Indenture to the best of its
ability to the end that the interests of the Noteholders and Swap Counterparties
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.
ARTICLE II
THE NOTES
SECTION 2.1 Form of Notes. (a) Each of 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 will be issued in the form of a Book-Entry Note and
each of the VPTNs will be issued in the form of a Definitive Note, which Notes,
together with the Indenture Trustee's certificates of authentication, shall be
in substantially the forms set forth in Exhibit A-1, Exhibit A-2, Exhibit A-3,
Exhibit A-4, Exhibit A-5, Exhibit B and Exhibit VPTN (the "Note Exhibits"), 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 the Note Exhibits are part of the terms of
this Indenture and are incorporated herein by reference.
SECTION 2.2 Execution, Authentication and Delivery. (a) The
Notes shall be executed on behalf of the Issuer by any of its Authorized
Officers. The signature of any such Authorized Officer on the Notes may be
manual or facsimile.
(b) Notes bearing the manual or facsimile signature of
individuals who were at any time Authorized Officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
(c) The Indenture Trustee shall, upon Issuer Order,
authenticate and deliver the Notes for original issue in the Classes, initial
aggregate principal amounts, interest rates, Final Scheduled Distribution Dates
and, with respect to the Class A Notes, the Targeted Scheduled Distribution
Dates as set forth in the table below.
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Targeted
Class Initial Aggregate Interest Scheduled Final Scheduled
Principal Amount Rate Distribution Date Distribution Date
Class A-1 Notes $906,000,000 LIBOR + October 2002 August 2003
0.06% Monthly Monthly
Distribution Date Distribution Date
Class A-2 Notes $701,000,000 6.56% April 2003 May 2004
Monthly Monthly
Distribution Date Distribution Date
Class A-3 Notes $520,000,000 6.58% October 2003 November 2004
Monthly Monthly
Distribution Date Distribution Date
Class A-4 Notes $343,000,000 LIBOR + April 2004 May 2005
0.10% Monthly Monthly
Distribution Date Distribution Date
Class A-5 Notes $159,722,000 LIBOR + October 2004 October 2005
0.12% Monthly Monthly
Distribution Date Distribution Date
Class B Notes $97,397,000 7.00% N/A March 2006
Monthly
Distribution Date
</TABLE>
(d) On the Targeted Scheduled Distribution Date for any
Subclass of Class A Notes and on any other Monthly Distribution Date on which
any Subclass of Class A Notes is Outstanding that has reached or passed its
Targeted Scheduled Distribution Date, VPTNs may be issued as set forth in this
Section 2.2(d) and Section 2(b) of the Administration Agreement. Each issuance
of VPTNs will be made in an aggregate amount on any Monthly Distribution Date
not exceeding the excess of (1) the outstanding principal balance of one or more
of the Outstanding Subclasses of the Class A Notes that have reached or passed
their Targeted Scheduled Distribution Dates over (2) the aggregate amounts
(exclusive of investment earnings) that remain on deposit in the Accumulation
Account and in the Principal Distribution Account, if any, that are allocable to
the payment of principal on the Class A Notes on such Monthly Distribution Date.
The Issuer shall execute and, upon an Issuer Order, the Indenture Trustee shall
cause the VPTNs, subject to this Section 2.2(d), to be authenticated and
delivered. Each such order shall set forth with respect to each such VPTN:
(i) the issuance date and Spread of the VPTN;
(ii) the aggregate principal amount of the VPTN to be
authenticated and delivered on such issuance date;
(iii) the VPTN Rate for such VPTN; and
(iv) any other terms or provisions of such VPTN which
shall not be inconsistent with the provisions of this
Indenture.
The Indenture Trustee shall not, however, cause to be
authenticated and deliver any VPTN on a Targeted Scheduled Distribution Date or
on any subsequent Monthly Distribution Date unless the Issuer has:
1. delivered to the Indenture Trustee an Officer's Certificate
certifying that the following conditions have been satisfied:
(A) the aggregate amount of the proceeds of the
issuance and sale of the VPTNs on such Monthly
Distribution Date (including any related Servicer
Liquidity Advances) will be sufficient, when taken
together with amounts on deposit in the Principal
Distribution Account that are allocable to principal
payments on the Class A Notes and the amounts on
deposit in the Accumulation Account, to repay, each
in its entirety, one or more of the Subclasses of
Class A Notes that have reached or passed their
Targeted Scheduled Distribution Dates;
(B) the VPTNs must be rated "AAA" and "Aaa" by S&P and
Moody's, respectively;
(C) the Interest Rate Swap Agreements must be in full
force and effect with respective notional amounts
equal to (1) with respect to each of the Floating
Rate Class A Note Interest Rate Swaps, the aggregate
principal amount of the related Subclass of the
Floating Rate Class A Notes and (2) with respect to
the Variable Pay Term Notes Interest Rate Swap, the
aggregate principal balance of the VPTN to be issued
and any other outstanding VPTN;
(D) no Early Amortization Event shall have occurred;
(E) no Event of Servicing Termination shall have occurred
and be continuing;
(F) no Event of Default shall have occurred and be
continuing;
(G) the purchase price of each VPTN must be equal to its
par amount; and
(H) the interest rate on each VPTN must not exceed
one-month LIBOR plus 1.50%;
2. delivered to the Indenture Trustee an Opinion of Counsel,
which shall also be addressed to the purchaser of such VPTN
and the Rating Agencies and shall be dated the related
issuance date of the VPTN, substantially to the effect that:
(i) the Issuer has been duly formed and is validly
existing as a business trust under the Delaware
Business Trust Act, 12 Del. C. '3801, et seq.
(the "Delaware Act"), and has the power and
authority under the Trust Agreement and the
Delaware Act to execute, deliver and perform its
obligations under the Notes;
(ii) the Issuer has full power and authority to issue and
sell the VPTNs to be sold to the purchaser on such
Targeted Scheduled Distribution Date or Monthly
Distribution Date, as the case may be, pursuant to a
VPTN purchase agreement, and the Issuer has duly
authorized such sale to the purchaser by all
necessary action;
(iii) registration of the VPTNs under the Securities Act is
not required in connection with the purchase and sale
of the VPTNs pursuant to the VPTN purchase agreement;
and
(iv) the issuance and sale of the VPTNs has been duly
authorized by the Trust, and the VPTNs, when duly
executed by the Owner Trustee on behalf of the Trust
and authenticated by the Indenture Trustee in
accordance with the Indenture and delivered to and
paid for by the purchasers thereof in accordance with
the Indenture, will be validly issued and outstanding
and entitled to the benefits of the Indenture.
(e) The Class A-1 Notes, Class A-2 Notes, Class A-3 Notes,
Class A-4 Notes, Class A-5 Notes 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. The VPTNs will be issuable as Definitive Notes in
denominations of not less than $100,000 in initial Principal Balance and in
integral multiples of $1,000 in excess thereof.
(f) 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 Officers, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.3 Temporary Notes. 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 of Transfer and Exchange of
Securities. (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) 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 (and, in the case of a
VPTN, with the terms applicable to VPTNs with the same date of issuance as such
VPTN) in any authorized denomination, of a like aggregate principal amount.
(c) 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.
(d) 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.
(e) 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.
(f) 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 an exchange pursuant to Section 2.3 or Section 9.6 not
involving any transfer.
(g) 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 Monthly Distribution
Date for any payment with respect to such Note.
(h) All Notes surrendered for transfer and exchange shall be
physically canceled by the Note Registrar, and the Note Registrar shall dispose
of such canceled Notes in accordance with its customary procedures.
(i) With respect to the registration of transfer and exchange
of any VPTN, each VPTN shall bear a legend to the following effect unless
determined otherwise by the Issuer (as certified to the Indenture Trustee in an
Officers Certificate) and the Indenture Trustee consistent with applicable law:
"THIS VARIABLE PAY TERM NOTE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES.
THE HOLDER HEREOF, BY PURCHASING THIS VARIABLE PAY TERM NOTE, AGREES THAT THIS
VARIABLE PAY TERM NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE
LAWS, AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")
TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER, WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT
THE REOFFER, RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE INDENTURE
TRUSTEE AND THE VARIABLE PAY TERM NOTE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO
THE INDENTURE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO
ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE RECEIPT BY THE INDENTURE TRUSTEE AND THE VARIABLE PAY TERM NOTE
REGISTRAR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE INDENTURE TRUSTEE THAT SUCH
REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS, OR (4) TO THE SELLER OR ITS AFFILIATES, IN EACH CASE IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND
SECURITIES AND BLUE SKY LAWS OF THE STATES OF THE UNITED STATES."
As a condition to the registration of any Transfer of a VPTN,
the prospective transferee of such a VPTN shall be required to represent in
writing to the Indenture Trustee, the Note Registrar and the Issuer the
following, unless determined otherwise by the Issuer (as certified to the
Indenture Trustee in an Officers Certificate):
(i) It understands that no subsequent Transfer of the
VPTN is permitted unless it causes its proposed transferee to
provide to the Issuer and the Note Registrar a letter
substantially in the form of Exhibit D or Exhibit E hereof
(with such changes therein as may be approved by the Issuer),
as applicable, or such other written statement as the Issuer
shall prescribe.
(ii) It understands that any purported Transfer of
any VPTN (or any interest therein) in contravention of any of
the restrictions and conditions contained in this Section will
be a Void Transfer, and the purported transferee in a Void
Transfer will not be recognized by the Issuer or any other
person as a VPTN Noteholder for any purpose.
(j) With respect to registration of transfer and exchange, by
acceptance of any VPTN, the VPTN Noteholder thereof specifically agrees with and
represents to the Issuer and the Note Registrar, that no Transfer of such VPTN
shall be made unless the registration requirements of the Securities Act and any
applicable State securities laws are complied with, or such Transfer is exempt
from the registration requirements under the Securities Act because the Transfer
satisfies one of the following:
(i) such Transfer is in compliance with Rule 144A
under the Securities Act ("Rule 144A"), to a transferee who
the transferor reasonably believes is a Qualified
Institutional Buyer that is purchasing for its own account or
for the account of a Qualified Institutional Buyer and to whom
notice is given that such Transfer is being made in reliance
upon Rule 144A under the Securities Act and (x) the transferor
executes and delivers to the Issuer and the Note Registrar, a
Rule 144A transferor certificate substantially in the form
attached as Exhibit F and (y) the transferee executes and
delivers to the Issuer and the Note Registrar an investment
letter substantially in the form attached as Exhibit D;
(ii) after the appropriate holding period, such
Transfer is pursuant to an exemption from registration under
the Securities Act provided by Rule 144 under the Securities
Act and the transferee, if requested by the Issuer or the Note
Registrar, delivers an Opinion of Counsel in form and
substance satisfactory to the Issuer and the Note Registrar;
or
<PAGE>
(iii) such Transfer is to an institutional accredited
investor as defined in rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the Securities Act in a
transaction exempt from the registration requirements of the
Securities Act, such Transfer is in accordance with any
applicable securities laws of any State of the United States
or any other jurisdiction, and such investor executes and
delivers to the Issuer and the Note Registrar an investment
letter substantially in the form attached as Exhibit E.
(k) With respect to registrations of transfer and exchange of
any VPTN, the Issuer shall make available to the prospective transferor and
transferee of a VPTN information requested to satisfy the requirements of
paragraph (d) (4) of Rule 144A (the "Rule 144A Information"). The Rule 144A
Information shall include any or all of the following items requested by the
prospective transferee:
(i) the private placement memorandum, if any,
relating to the VPTN, and any amendments or supplements
thereto;
(ii) each statement delivered to VPTN Noteholders
pursuant to Section 8.2(d) on each Monthly Distribution Date
preceding such request; and
(iii) such other information as is reasonably
available to the Indenture Trustee in order to comply with
requests for information pursuant to Rule 144A under the
Securities Act.
None of the Issuer, the Note Registrar or the Indenture
Trustee is under an obligation to register any VPTN under the Securities Act or
any other securities law.
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes. (a) If
(i) any mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, and (ii) there is delivered to the Indenture Trustee such security
or indemnity as may be required by it to hold the Issuer and the Indenture
Trustee harmless, then, in the absence of notice to the Issuer, the Note
Registrar or the Indenture Trustee that such Note has been acquired by a
protected purchaser, as defined in Section 8-303 of the UCC, and provided that
the requirements of Section 8-405 of the UCC are met, the Issuer shall execute,
and upon Issuer Request the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of the same Class; provided, however, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within seven (7) days shall be due and payable, or shall have been called for
redemption, instead of issuing a replacement Note, the Issuer may pay such
destroyed, lost or stolen Note when so due or payable or upon the Redemption
Date without surrender thereof. If, after the delivery of such replacement Note
or payment of a destroyed, lost or stolen Note pursuant to the proviso to the
preceding sentence, a protected purchaser of the original Note in lieu of which
such replacement Note was issued presents for payment such original Note, the
Issuer and the Indenture Trustee shall be entitled to recover such replacement
Note (or such payment) from the Person to whom it was delivered or any Person
taking such replacement Note from such Person to whom such replacement Note was
delivered or any assignee of such Person, except a protected purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the Issuer or the
Indenture Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this
Section 2.6, the Issuer may require the payment by the Noteholder of such Note
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other reasonable expenses (including the
fees and expenses of the Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section 2.6
in replacement of any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section 2.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.7 Persons Deemed Owners. Prior to due presentment
for registration of transfer of any Note, the Issuer, the Indenture Trustee and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name any Note is registered (as of the day of determination) as the owner of
such Note for the purpose of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not such
Note be overdue, and none of the Issuer, the Indenture Trustee or any agent of
the Issuer or the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.8 Payment of Principal and Interest; Defaulted
Interest. (a) The Class A-2 Notes, the Class A-3 Notes and the Class B Notes
shall accrue interest at the Class A-2 Rate, the Class A-3 Rate and the Class B
Rate, respectively, as set forth in the Note Exhibits, as applicable, and the
Class A-1 Notes, the Class A-4 Notes, the Class A-5 Notes and the VPTNs shall
accrue interest at the Class A-1 Rate, the Class A-4 Rate, the Class A-5 Rate
and the applicable VPTN Rate, respectively, as determined from time to time.
Interest shall be due and payable on the Quarterly Pay Class A Notes on each
Quarterly Payment Date, and interest shall be due and payable on the Monthly Pay
Class A Notes, Class B Notes and VPTNs on each Monthly Distribution Date, in
each case as specified therein, subject to Section 3.1; provided, however, that:
(i) if any Subclass of the Floating Rate Class A
Notes is not paid in full on its Targeted Scheduled
Distribution Date, then on such Targeted Scheduled
Distribution Date, interest on such Subclass will begin to
accrue during each Monthly Interest Period and will be paid on
each Monthly Distribution Date thereafter at an interest rate
equal to LIBOR as determined by reference to an Index Maturity
of one month plus the applicable Spread; and
(ii) if an Early Amortization Event occurs or if the
Notes are accelerated pursuant to Section 5.2 following an
Event of Default, then on the Monthly Distribution Date
following the Early Amortization Event or acceleration of the
Notes (unless the Early Amortization Event or acceleration of
the Notes occurs within two London banking days prior to a
Monthly Distribution Date, in which case beginning on the next
following Monthly Distribution Date), interest on each
Subclass of Floating Rate Class A Notes will accrue during
each Monthly Interest Period thereafter and, in the case of an
Early Amortization Event, will be paid on each Monthly
Distribution Date thereafter at an interest rate equal to
LIBOR as determined by reference to an Index Maturity of one
month, plus the applicable Spread.
The Administrator shall obtain the calculation of LIBOR from
the Calculation Agent under this Agreement, and shall calculate, for each
Monthly Distribution Date, the amount of the Class A-1 Rate, the Class A-4 Rate,
the Class A-5 Rate, the VPTN Rate and the Accrued Class A Monthly Pay Interest
(and the portion allocable to each Subclass of Monthly Pay Class A Notes). 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 Quarterly
Payment Date or Monthly 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
Quarterly Payment Date or Monthly 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 Monthly 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 Monthly Distribution Date as provided in the forms of Notes
set forth in the Note Exhibits. 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 (other
than VPTNs) shall be made pro rata to the Noteholders of such Class entitled
thereto. All principal payments on the VPTNs shall be made sequentially, in the
order they were issued, such that the earliest issued VPTNs will be paid in full
before any principal payments are made on any later issued VPTNs (and, in the
event that more than one VPTN is issued on any Monthly Distribution Date,
principal shall be paid pro rata to the holders of such VPTNs). 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 Monthly 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 Monthly 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
Monthly 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 Monthly Distribution Date.
SECTION 2.9 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section 2.9, except as expressly
permitted by this Indenture. All cancelled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Order that they be destroyed or returned to it and so long as such Issuer Order
is timely and the Notes have not been previously disposed of by the Indenture
Trustee.
SECTION 2.10 Release of Collateral. Subject to Section 11.1
and the terms of the Basic Documents, the Indenture Trustee shall release
property from the lien of this Indenture only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates. If the Commission shall
issue an exemptive order under TIA Section 304(d) modifying the Owner Trustee's
obligations under TIA Sections 314(c) and 314(d)(1), subject to Section 11.1 and
the terms of the Basic Documents, the Indenture Trustee shall release property
from the lien of this Indenture in accordance with the conditions and procedures
set forth in such exemptive order.
SECTION 2.11 Book-Entry Notes. The 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, upon original issuance, shall be issued in the form of
typewritten Notes representing the Book-Entry Notes, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the
Issuer. The Book-Entry Notes shall be registered initially on the Note Register
in the name of Cede & Co., the nominee of the initial Clearing Agency, and no
Note Owner thereof shall receive a Definitive Note (as defined below)
representing such Note Owner's interest in such Note, except as provided in
Section 2.13. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to such Note Owners pursuant to Section
2.13:
(i) the provisions of this Section 2.11 shall be
in full force and effect;
(ii) the Note Registrar and the Indenture Trustee
shall be entitled to deal with the Clearing Agency for all
purposes of this Indenture (including the payment of principal
of and interest on the Book-Entry Notes and the giving of
instructions or directions hereunder) as the sole Noteholder,
and shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this
Section 2.11 conflict with any other provisions of this
Indenture, the provisions of this Section 2.11 shall control;
(iv) the rights of Note Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Note Owners and
the Clearing Agency and/or the Clearing Agency Participants
pursuant to the Note Depository Agreement. Unless and until
Definitive Notes are issued to Note Owners pursuant to Section
2.13, the initial Clearing Agency shall make book-entry
transfers among the Clearing Agency Participants and receive
and transmit payments of principal of and interest on the
Book-Entry Notes to such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits
actions to be taken based upon instructions or directions of
Noteholders of Notes evidencing a specified percentage of the
Note Balance of the Notes Outstanding (or any Class thereof,
including the Controlling Note Class) the Clearing Agency
shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from
Note Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the
beneficial interest of the Notes Outstanding (or Class
thereof, including the Controlling Note Class) and has
delivered such instructions to the Indenture Trustee.
SECTION 2.12 Notices to Clearing Agency. Whenever a notice or
other communication to the Noteholders of Book-Entry Notes is required under
this Indenture, unless and until Definitive Notes shall have been issued to the
Note Owners pursuant to Section 2.13, the Indenture Trustee shall give all such
notices and communications specified herein to be given to Noteholders of
Book-Entry Notes to the Clearing Agency and to the Luxembourg Paying Agent, and
shall have no obligation to such Note Owners. For so long as the Class A Notes
or the Class B Notes are outstanding and listed on the Luxembourg Stock Exchange
and as the rules of the exchange require, notices to the holders of such Notes
shall be given in an Authorized Newspaper.
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)
either the Clearing Agency or both Euroclear and Clearstream cease to be an
organization registered as a "clearing agency" pursuant to Section 17A of the
Exchange Act, (iii) 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 (iv) after the occurrence of an Event of Default or an Event
of Servicing Termination, Note Owners of such Class of Book-Entry Notes
evidencing beneficial interests aggregating not less than a majority of the Note
Balance of such Class advise the Indenture Trustee and the Clearing Agency in
writing that the continuation of a book-entry system through the Clearing Agency
is no longer in the best interests of such Class of Note Owners, then the
Clearing Agency shall notify all Note Owners of such Class and the Indenture
Trustee of the occurrence of such event and of the availability of Definitive
Notes to the Note Owners of the applicable Class requesting the same. Upon
surrender to the Indenture Trustee of the typewritten Notes representing the
Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the Indenture Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Notes to Note Owners, the Indenture Trustee
shall recognize the holders of such Definitive Notes as Noteholders.
SECTION 2.14 Authenticating Agents. (a) The Indenture Trustee
may appoint one or more Persons (each, an "Authenticating Agent") with power to
act on its behalf and subject to its direction in the authentication of Notes in
connection with issuance, transfers and exchanges under Sections 2.2, 2.3, 2.5,
2.6 and 9.6, as fully to all intents and purposes as though each such
Authenticating Agent had been expressly authorized by those Sections to
authenticate such Notes. For all purposes of this Indenture, the authentication
of Notes by an Authenticating Agent pursuant to this Section 2.14 shall be
deemed to be the authentication of Notes "by the Indenture Trustee."
(b) Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of any Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, without the
execution or filing of any further act on the part of the parties hereto or such
Authenticating Agent or such successor corporation.
(c) Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Indenture Trustee and the Owner Trustee.
The Indenture Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and
the Owner Trustee. Upon receiving such notice of resignation or upon such a
termination, the Indenture Trustee may appoint a successor Authenticating Agent
and shall give written notice of any such appointment to the Owner Trustee.
(d) The Administrator agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services. The provisions
of Sections 2.9 and 6.4 shall be applicable to any Authenticating Agent.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer
shall duly and punctually pay the principal of and interest, if any, on the
Notes in accordance with the terms of the Notes and this Indenture. 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. (a) 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.
(b) If and for so long any of the Luxembourg Listed Notes are
listed on the Luxembourg Stock Exchange, as required by the Luxembourg Stock
Exchange, the Issuer shall maintain a Transfer Agent in Luxembourg for the
transfer of Luxembourg Listed Notes which are Definitive Notes, if any. The
Issuer hereby appoints Banque International a Luxembourg as its Transfer Agent
in Luxembourg for such purpose.
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 Monthly Distribution Date and Redemption
Date, the Issuer shall deposit or cause to be deposited in the Collection
Account an aggregate sum sufficient to pay the amounts then becoming due under
the Notes and Interest Rate Swap Agreements, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless the Note Paying Agent
is the Indenture Trustee) shall promptly notify the Indenture Trustee of its
action or failure so to act.
(c) The Issuer shall cause each Note Paying Agent other than
the Indenture Trustee to execute and deliver to the Indenture Trustee an
instrument in which such Note Paying Agent shall agree with the Indenture
Trustee (and if the Indenture Trustee acts as Note Paying Agent, it hereby so
agrees), subject to the provisions of this Section 3.3, that such Note Paying
Agent shall:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default
by the Issuer (or any other obligor upon the Notes) of which
it has actual knowledge in the making of any payment required
to be made with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in
trust by such Note Paying Agent;
(iv) immediately resign as a Note Paying Agent and
forthwith pay to the Indenture Trustee all sums held by it in
trust for the payment of Notes if at any time it ceases to
meet the standards required to be met by a Note Paying Agent
at the time of its appointment; and
(v) comply with all requirements of the Code and any
State or local tax law with respect to the withholding from
any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
(d) The Issuer may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Note Paying Agent to pay to the Indenture Trustee all
sums held in trust by such Note Paying Agent, such sums to be held by the
Indenture Trustee upon the same trusts as those upon which the sums were held by
such Note Paying Agent; and upon such payment by any Note Paying Agent to the
Indenture Trustee, such Note Paying Agent shall be released from all further
liability with respect to such money.
(e) Subject to applicable laws with respect to escheat of
funds, any money held by the Indenture Trustee or any Note Paying Agent in trust
for the payment of any amount due with respect to any Note and remaining
unclaimed for two (2) years after such amount has become due and payable shall
be discharged from such trust and be paid to the Issuer on Issuer Request; and
the Noteholder of such Note shall thereafter, as an unsecured general creditor,
look only to the Issuer for payment thereof (but only to the extent of the
amounts so paid to the Issuer), and all liability of the Indenture Trustee or
such Note Paying Agent with respect to such trust money shall thereupon cease;
provided, however, that the Indenture Trustee or such Note Paying Agent, before
being required to make any such repayment, shall at the expense and direction of
the Issuer cause to be published once (i) in a newspaper published in the
English language, customarily published on each Business Day and of general
circulation in The City of New York and (ii) in an Authorized Newspaper, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than thirty (30) days from the date of such publication,
any unclaimed balance of such money then remaining shall be repaid to the
Issuer. The Indenture Trustee shall also adopt and employ, at the expense and
direction of the Issuer, any other reasonable means of notification of such
repayment (including, but not limited to, mailing notice of such repayment to
Noteholders whose Notes have been called but have not been surrendered for
redemption or whose right to or interest in monies due and payable but not
claimed is determinable from the records of the Indenture Trustee or of any Note
Paying Agent, at the last address of record for each such Noteholder).
SECTION 3.4 Existence. The Issuer shall keep in full effect
its existence, rights and franchises as a business trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States of
America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Indenture Trust Estate.
SECTION 3.5 Protection of Indenture Trust Estate. The Issuer
shall from time to time execute and deliver all such supplements and amendments
hereto and all such financing statements, continuation statements, instruments
of further assurance and other instruments, and shall take such other action
necessary or advisable to:
(i) maintain or preserve the lien and security
interest (and the priority thereof) of this Indenture or carry
out more effectively the purposes hereof;
(ii) perfect, publish notice of or protect the
validity of any Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Indenture Trust
Estate and the rights of the Indenture Trustee, each Swap
Counterparty and the Noteholders in such Indenture Trust
Estate against the claims of all Persons.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section 3.5; provided,
however, that the Indenture Trustee shall be under no obligation to file any
such financing statement, continuation statement or other instrument required to
be executed pursuant to this Section 3.5.
SECTION 3.6 Opinions as to Indenture Trust Estate. (a) On the
Closing Date, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of this Indenture, any
indentures supplemental hereto, and any other requisite documents, and with
respect to the execution and filing of any financing statements and continuation
statements, as are necessary to perfect and make effective the lien and security
interest of this Indenture and reciting the details of such action, or stating
that, in the opinion of such counsel, no such action is necessary to make such
lien and security interest effective.
(b) On or before April 30 in each calendar year, beginning in
2001, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been taken
with respect to the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite documents
and with respect to the execution and filing of any financing statements and
continuation statements and any other action that may be required by law as is
necessary to maintain the lien and security interest created by this Indenture
and reciting the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain such lien and security interest.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and the execution and filing of any financing statements and
continuation statements that shall, in the opinion of such counsel, be required
to maintain the lien and security interest of this Indenture until April 30 in
the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of
Receivables. (a) The Issuer shall not take any action and shall use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Indenture Trust Estate or that would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such instrument or
agreement, except as expressly provided in this Indenture and the other Basic
Documents.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Servicer and the Administrator to assist the
Issuer in performing its duties under this Indenture.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Basic
Documents and in the instruments and agreements included in the Indenture Trust
Estate, including, but not limited to, filing or causing to be filed all
financing statements and continuation statements required to be filed under the
UCC by the terms of this Indenture and the Sale and Servicing Agreement in
accordance with and within the time periods provided for herein and therein.
Except as otherwise expressly provided therein, the Issuer shall not waive,
amend, modify, supplement or terminate any Basic Document or any provision
thereof without the consent of the Indenture Trustee and the Noteholders of
Notes evidencing not less than a majority of the Note Balance of each Class of
Notes then Outstanding, voting separately.
(d) If the Issuer shall have knowledge of the occurrence of an
Event of Servicing Termination under the Sale and Servicing Agreement, the
Issuer shall promptly notify the Indenture Trustee and the Rating Agencies
thereof and shall specify in such notice the action, if any, the Issuer is
taking in respect of such default. If an Event of Servicing Termination shall
arise from the failure of the Servicer to perform any of its duties or
obligations under the Sale and Servicing Agreement with respect to the
Receivables, the Issuer shall take all reasonable steps available to it to
remedy such failure.
(e) As promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers pursuant to
Section 7.1 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 7.2 of the Sale and Servicing Agreement, the Issuer shall enter into an
agreement with such successor for the servicing of the Receivables (such
agreement to be in form and substance satisfactory to the Indenture Trustee). If
the Indenture Trustee shall succeed to the Servicer's duties as servicer of the
Receivables as provided herein, it shall do so in its individual capacity and
not in its capacity as Indenture Trustee and, accordingly, the provisions of
Article VI hereof shall be inapplicable to the Indenture Trustee in its duties
as the successor to the Servicer and the servicing of the Receivables. In case
the Indenture Trustee shall become successor to the Servicer under the Sale and
Servicing Agreement, the Indenture Trustee shall be entitled to appoint as
Servicer any one of its Affiliates; provided that the Indenture Trustee, in its
capacity as the Servicer, shall be fully liable for the actions and omissions of
such Affiliate in such capacity as Successor Servicer.
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Sale and Servicing Agreement, the Issuer shall promptly notify
the Indenture Trustee. As soon as a Successor Servicer is appointed by the
Issuer, the Issuer shall notify the Indenture Trustee of such appointment,
specifying in such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the rights
of the Indenture Trustee hereunder, the Issuer hereby agrees that it shall not,
without the prior written consent of the Indenture Trustee or the Noteholders of
Notes evidencing not less than a majority in Note Balance of the Notes
Outstanding, amend, modify, waive, supplement, terminate or surrender, or agree
to any amendment, modification, supplement, termination, waiver or surrender of,
the terms of any Collateral (except to the extent otherwise provided in the Sale
and Servicing Agreement or the other Basic Documents).
(h) If the Issuer shall have knowledge of the occurrence of an
Early Amortization Event, the Issuer shall promptly notify the Indenture Trustee
and the Rating Agencies thereof.
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, direct the Indenture Trustee to sell,
transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, including those included
in the Indenture Trust Estate, unless directed to do so by the
Indenture Trustee;
(ii) claim any credit on, or make any deduction from
the principal or interest payable in respect of, the Notes
(other than amounts properly withheld from such payments under
the Code) or assert any claim against any present or former
Noteholder by reason of the payment of the taxes levied or
assessed upon the Trust or the Indenture Trust Estate;
(iii) dissolve or liquidate in whole or in part; or
(iv) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture
to be amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any
covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (B)
permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien of this
Indenture) to be created on or extend to or otherwise arise
upon or burden the assets of the Issuer, including those
included in the Indenture Trust Estate, or any part thereof or
any interest therein or the proceeds thereof (other than tax
liens, mechanics' liens and other liens that arise by
operation of law, in each case on any of the Financed Vehicles
and arising solely as a result of an action or omission of the
related Obligor) or (C) permit the lien of this Indenture not
to constitute a valid first priority (other than with respect
to any such tax, mechanics' or other lien) security interest
in the Indenture Trust Estate.
SECTION 3.9 Annual Statement as to Compliance. The Issuer
shall deliver to the Indenture Trustee within 120 days after the end of each
calendar year, an Officer's Certificate stating, as to the Authorized Officer
signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during
such year and of its performance under this Indenture has been
made under such Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's
knowledge, based on such review, the Issuer has complied with
all conditions and covenants under this Indenture throughout
such year, or, if there has been a default in its compliance
with any such condition or covenant, specifying each such
default known to such Authorized Officer and the nature and
status thereof.
SECTION 3.10 Issuer May Consolidate, etc., Only on
Certain Terms. (a) The Issuer shall not consolidate or merge with or into
any other Person, unless:
(i) the Person (if other than the Issuer) formed by
or surviving such consolidation or merger shall be a Person
organized and existing under the laws of the United States of
America or any State and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of and
interest on all Notes and the performance or observance of
every agreement and covenant of this Indenture on the part of
the Issuer to be performed or observed, all as provided
herein;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing;
(iii) the Rating Agency Condition shall have
been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the
Indenture Trustee) to the effect that such transaction will
not have any material adverse tax consequence to the Issuer,
the Swap Counterparty, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have
been taken; and
(vi) the Issuer shall have delivered to the Seller,
the Servicer, the Owner Trustee and the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating
that such consolidation or merger and such supplemental
indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction
have been complied with (including any filing required by the
Exchange Act).
(b) Other than as specifically contemplated by the Basic
Documents, the Issuer shall not convey or transfer any of its properties or
assets, including those included in the Indenture Trust Estate, to any Person,
unless:
(i) the Person that acquires by conveyance or
transfer the properties and assets of the Issuer the
conveyance or transfer of which is hereby restricted shall (A)
be a United States citizen or a Person organized and existing
under the laws of the United States of America or any State,
(B) expressly assumes, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all Notes and of
all obligations under the Interest Rate Swap Agreements and
the performance or observance of every agreement and covenant
of this Indenture on the part of the Issuer to be performed or
observed, all as provided herein, (C) expressly agrees by
means of such supplemental indenture that all right, title and
interest so conveyed or transferred shall be subject and
subordinate to the rights of Noteholders and the Swap
Counterparties, (D) unless otherwise provided in such
supplemental indenture, expressly agrees to indemnify, defend
and hold harmless the Issuer against and from any loss,
liability or expense arising under or related to this
Indenture and the Notes, and (E) expressly agrees by means of
such supplemental indenture that such Person (or if a group of
Persons, then one specified Person) shall make all filings
with the Commission (and any other appropriate Person)
required by the Exchange Act in connection with the Notes);
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing;
(iii) the Rating Agency Condition shall have
been satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the
Indenture Trustee) to the effect that such transaction will
not have any material adverse tax consequence to the Issuer,
any Swap Counterparty, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the lien
and security interest created by this Indenture shall have
been taken; and
(vi) the Issuer shall have delivered to the Seller,
the Servicer, the Owner Trustee and the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating
that such 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.
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 4.10 and Article VI thereof.
SECTION 3.15 Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by this Indenture and the other Basic
Documents, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.16 Capital Expenditures. The Issuer shall not make
any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
SECTION 3.17 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer shall execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
SECTION 3.18 Restricted Payments. The Issuer shall not,
directly or indirectly, (i) make any distribution (by reduction of capital or
otherwise), whether in cash, property, securities or a combination thereof, to
the Owner Trustee or any owner of a beneficial interest in the Issuer or
otherwise with respect to any ownership or equity interest or security in or of
the Issuer or to the Servicer or the Administrator, (ii) redeem, purchase,
retire or otherwise acquire for value any such ownership or equity interest or
security or (iii) set aside or otherwise segregate any amounts for any such
purpose; provided, however, that the Issuer may make, or cause to be made, (x)
payments to the Servicer, the Seller, the Administrator, the Owner Trustee, the
Indenture Trustee, the Swap Counterparties, the Noteholders and the
Certificateholders as contemplated by, and to the extent funds are available for
such purpose under, this Indenture and the other Basic Document 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, the Principal Distribution Account,
the Class A Quarterly Interest Funding Account or the Accumulation Account
except in accordance with this Indenture and the other Basic Documents.
SECTION 3.19 Calculation Agent. (a) The Issuer agrees that for
so long as any of the Floating Rate Class A Notes or VPTNs are Outstanding there
shall at all times be an agent appointed to calculate LIBOR in respect of each
Interest Period (the "Calculation Agent"). The Issuer has initially appointed
The Chase Manhattan Bank as Calculation Agent for purposes of determining LIBOR
for each Interest Period. The Calculation Agent may be removed by the Issuer at
any time. If the Calculation Agent is unable or unwilling to act as such or is
removed by the Issuer, the Issuer shall promptly appoint as a replacement
Calculation Agent a leading bank which is engaged in transactions in Eurodollar
deposits in the international Eurodollar market and which does not control or is
not controlled by or under common control with the Issuer or its Affiliates. The
Calculation Agent may not resign its duties without a successor having been duly
appointed.
(b) The Calculation Agent shall be required to agree that, as
soon as possible after 11:00 a.m. (London time) on each LIBOR Determination
Date, but in no event later than 11:00 a.m. (London time) on the Business Day
immediately following each LIBOR Determination Date, the Calculation Agent shall
calculate the interest rate for each Subclass of Floating Rate Class A Notes and
each VPTN for the related Interest Period (in each case, at a rate per annum
rounded, if necessary, to the nearest 1/100,000 of 1% (.0000001), with five
one-millionths of a percentage point rounded upward) and the amount of interest
payable (rounded to the nearest cent, with half a cent being rounded upwards) on
the related Monthly Distribution Date or Quarterly Payment Date, as applicable,
and shall communicate such rates and amounts to the Administrator, the Indenture
Trustee, the Servicer. For as long as any of the Floating Rate Class A Notes are
listed on the Luxembourg Stock Exchange and as required by the rules of the
Luxembourg Stock Exchange, the Calculation Agent shall cause such interest rates
and amounts for each Subclass of the Floating Rate Class A Notes to be
communicated to the Luxembourg Stock Exchange and to be published in an
Authorized Newspaper as soon as possible after its determination. The
Calculation Agent shall also specify to the Administrator and the Indenture
Trustee the quotations upon which the interest rates and in any event the
Calculation Agent shall notify the Indenture Trustee and the Servicer before
5:00 p.m. (London time) on each LIBOR Determination Date that either: (i) it has
determined or is in the process of determining the interest rates for the
Floating Rate Class A Notes and VPTNs and the amount of interest due on such
Notes, or (ii) it has not determined and is not in the process of determining
the interest rates for the Floating Rate Class A Notes and VPTNs and the amount
of interest due on such Notes, together with its reasons therefor. The
determination of the interest rates and interest amounts by the Calculation
Agent shall (in the absence of manifest error) be final and binding upon all
parties.
SECTION 3.20 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 or any Interest Rate Swap
Agreement with respect to any of the provisions thereof.
SECTION 3.21 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.
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
(1) 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
(2) 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), 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, under the Interest Rate Swap Agreements and
under any of the other Basic Documents by the Issuer;
(C) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if required
by the TIA or the Indenture Trustee) an Independent
Certificate from a firm of certified public accountants, each
meeting the applicable requirements of Section 11.1(a) and,
subject to Section 11.2, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with; and
(D) the Issuer has delivered to the Indenture Trustee an
Opinion of Counsel to the effect that the satisfaction and
discharge of the Notes pursuant to this Section 4.1 will not
cause any Noteholder to be treated as having sold or exchanged
any of its Notes for purposes of Section 1001 of the Code.
Upon the satisfaction and discharge of the Indenture pursuant to this Section
4.1, at the request of the Owner Trustee, the Indenture Trustee shall deliver to
the Owner Trustee a certificate of a Trustee Officer stating that all
Noteholders have been paid in full and stating whether, to the best knowledge of
such Trustee Officer, any claims remain against the Issuer in respect of the
Indenture and the Notes.
SECTION 4.2 Satisfaction, Discharge and Defeasance of Notes.
(a) Upon satisfaction of the conditions set forth in
subsection (b) below, the Issuer shall be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Notes, and the provisions of this
Indenture, as it relates to such Notes, shall no longer be in effect (and the
Indenture Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except as to (i) rights of registration of
transfer and exchange, (ii) substitution of mutilated, destroyed, lost or stolen
Notes, (iii) rights of Noteholders to receive payments of principal thereof and
interest thereon, (iv) Sections 3.2, 3.3, 3.4, 3.5, 3.8, 3.10, 3.12 and 3.13,
(v) the rights, obligations and immunities of the Indenture Trustee hereunder
(including the rights of the Indenture Trustee under Section 6.7 and the
obligations of the Indenture Trustee under Section 4.3), and (vi) the rights of
Noteholders as beneficiaries hereof with respect to the property so deposited
with the Indenture Trustee payable to all or any of them.
(b) The satisfaction, discharge and defeasance of the Notes
pursuant to subsection (a) of this Section 4.2 is subject to the satisfaction of
all of the following conditions:
(i) the Issuer has deposited or caused to be
deposited irrevocably (except as provided in Section 4.4) with
the Indenture Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit
of the Noteholders, which, through the payment of interest and
principal in respect thereof in accordance with their terms
will provide, not later than one day prior to the due date of
any payment referred to below, money in an amount sufficient,
in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written
certification thereof delivered to the Indenture Trustee, to
pay and discharge the entire indebtedness on the Outstanding
Notes, for principal thereof and interest thereon to the date
of such deposit (in the case of Notes that have become due and
payable) or to the maturity of such principal and interest, as
the case may be, and to pay any amounts then due and payable
to each Swap Counterparty;
(ii) such deposit will not result in a breach or
violation of, or constitute an event of default under, any
other agreement or instrument to which the Issuer is bound;
(iii) no Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such
deposit or on the ninety-first (91st) day after such date;
(iv) the Issuer has delivered to the Indenture
Trustee an Opinion of Counsel to the effect that the
satisfaction, discharge and defeasance of the Notes pursuant
to this Section 4.2 will not cause any Noteholder to be
treated as having sold or exchanged any of its Notes for
purposes of Section 1001 of the Code; and
(v) the Issuer has delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent relating to the
defeasance contemplated by this Section 4.2 have been complied
with.
SECTION 4.3 Application of Trust Money. All monies deposited
with the Indenture Trustee pursuant to Sections 4.1 and 4.2 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Note Paying Agent, as
the Indenture Trustee may determine, to the Noteholders of the particular Notes
for the payment or redemption of which such monies have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest, and for payment to the Swap Counterparties of all sums, if any, due or
to become due to the Swap Counterparties under and in accordance with this
Indenture; but such monies need not be segregated from other funds except to the
extent required herein or in the Sale and Servicing Agreement or required by
law.
SECTION 4.4 Repayment of Monies Held by Note Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
the Notes, all monies then held by any Note Paying Agent other than the
Indenture Trustee under the provisions of this Indenture with respect to such
Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to be
held and applied according to Section 3.3 and thereupon such Note Paying Agent
shall be released from all further liability with respect to such monies.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default," wherever
used herein, means the occurrence of any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) default in the payment of any interest on any
Note of the Controlling Note Class when the same becomes due
and payable on each Monthly Distribution Date or Quarterly
Payment Date, as applicable, and such default shall continue
for a period of five (5) days or more; or
(ii) default in the payment of the principal of or
any installment of the principal of any Note when the same
becomes due and payable; or
(iii) default in the observance or performance of any
material covenant or agreement of the Issuer made in this
Indenture (other than a covenant or agreement, a default in
the observance or performance of which is elsewhere in this
Section 5.1 specifically dealt with), or any representation or
warranty of the Issuer made in this Indenture or in any
certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any
material respect as of the time when the same shall have been
made, and such default shall continue or not be cured, or the
circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have
been eliminated or otherwise cured, for a period of sixty (60)
days or in the case of a materially incorrect representation
and warranty thirty (30) days, after there shall have been
given, by registered or certified mail, to the Issuer by the
Indenture Trustee or to the Issuer and the Indenture Trustee
by the Noteholders of Notes evidencing not less than 25% of
the Note Balance of the Controlling Note Class, a written
notice specifying such default or incorrect representation or
warranty and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(iv) the filing of a decree or order for relief by a
court having jurisdiction in the premises in respect of the
Issuer or any substantial part of the Indenture Trust Estate
in an involuntary case under any applicable federal or State
bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Indenture Trust
Estate, or ordering the winding-up or liquidation of the
Issuer's affairs, and such decree or order shall remain
unstayed and in effect for a period of sixty (60) consecutive
days; or
(v) the commencement by the Issuer of a voluntary
case under any applicable federal or State bankruptcy,
insolvency or other similar law now or hereafter in effect, or
the consent by the Issuer to the entry of an order for relief
in an involuntary case under any such law, or the consent by
the Issuer to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any
substantial part of the Indenture Trust Estate, or the making
by the Issuer of any general assignment for the benefit of
creditors, or the failure by the Issuer generally to pay its
debts as such debts become due, or the taking of any action by
the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee (with a copy to any Qualified
Institution or Qualified Trust Institution (if not the Indenture Trustee)
maintaining any Trust Accounts), within five (5) days after the occurrence
thereof, written notice in the form of an Officer's Certificate of any event
which with the giving of notice and the lapse of time would become an Event of
Default under clause (iii) above, its status and what action the Issuer is
taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment. (a) If an Event of Default should occur and be continuing, then and
in every such case the Indenture Trustee or the Noteholders of Notes evidencing
not less than a majority of the principal amount 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 Note Balance of such Notes, together
with accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable. If an Event of Default specified in Section
5.1(iv) or (v) occurs, all unpaid principal, together with all accrued and
unpaid interest thereon, of all the Notes, and other amounts payable hereunder,
shall automatically become due and payable without any declaration or other act
on the part of the Indenture Trustee or any Noteholder. In the event of such
declaration or automatic acceleration, the Indenture Trustee shall give prompt
written notice to each Swap Counterparty.
(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 and pursuant to the Interest
Rate Swap Agreements 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.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee. (a) The Issuer covenants that if (i) there is
an Event of Default relating to the nonpayment of any interest on any Note when
the same becomes due and payable, and such Event of Default continues for a
period of five (5) days, or (ii) there is an Event of Default relating to the
nonpayment in the payment of the principal of or any installment of the
principal of any Note when the same becomes due and payable, the Issuer shall,
upon demand of the Indenture Trustee, pay to the Indenture Trustee, for the
benefit of the Noteholders, the whole amount then due and payable on such Notes
for principal and interest, with interest upon the overdue principal and, to the
extent payment at such rate of interest shall be legally enforceable, upon
overdue installments of interest at the applicable Note Interest Rate borne by
the Notes and in addition thereto such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee and
its agents, attorneys and counsel.
(b) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as trustee
of an express trust, may institute a Proceeding for the collection of the sums
so due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against the Issuer or other obligor upon such
Notes and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Notes, wherever situated, the monies adjudged
or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee, as more particularly provided in Section 5.4, in its
discretion, may proceed to protect and enforce its rights and the rights of the
Noteholders and the Swap Counterparties, by such appropriate Proceedings as the
Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or
any other obligor upon the Notes or any Person having or claiming an ownership
interest in the Indenture Trust Estate, Proceedings under Title 11 of the United
States Code or any other applicable federal or State bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Issuer or other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Indenture Trustee,
irrespective of whether the principal of any Notes shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section 5.3, shall be entitled and empowered, by intervention in such
Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Indenture Trustee (including any
claim for reasonable compensation to the Indenture Trustee and each
predecessor Indenture Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances and disbursements made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence or bad faith), the Swap Counterparties and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Noteholders and the Swap Counterparties in any
election of a trustee, a standby trustee or Person performing similar
functions in any such Proceedings;
(iii) to collect and receive any monies or other property
payable or deliverable on any such claims and to pay all amounts
received with respect to the claims of the Noteholders, the Swap
Counterparties and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee, the Swap Counterparties or the Noteholders
allowed in any judicial proceedings relative to the Issuer, its
creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders and by the
Swap Counterparties 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 or to the Swap Counterparties, to pay to the Indenture Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities incurred,
and all advances and disbursements made, by the Indenture Trustee and each
predecessor Indenture Trustee, except as a result of negligence or bad faith,
and any other amounts due the Indenture Trustee pursuant to Section 6.7.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder or of any Swap Counterparty any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the Interest Rate
Swap Agreements or the rights of any Noteholder or Swap Counterparty or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder or Swap Counterparty in any such proceeding except, as aforesaid, to
vote for the election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or Proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, shall be for the ratable benefit of the Noteholders and the Swap
Counterparties in respect of which such judgment has been recovered.
(g) In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Noteholders and the Swap
Counterparties, and it shall not be necessary to make any Noteholder or Swap
Counterparty 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) [Reserved]; or
(C) 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
(y) the Indenture Trustee obtains
the consent of Noteholders of
Notes evidencing not less than
66 2/3% of he Note Balance of the
Controlling Note Class; or
(D) with respect to an Event of Default described in Section
5.1(iii):
(1) the Noteholders of all Outstanding
Notes and the Certificateholders of
all outstanding Certificates consent
thereto; or
(2) the proceeds of such sale or liquidation are
sufficient to pay in full the principal of
and accrued interest on the Outstanding
Notes and outstanding Certificates and all
payments due and payable pursuant to the
Interest Rate Swap Agreements.
In determining such sufficiency or insufficiency with respect to clauses (C)(2),
(D)(2) and (C)(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, with the same priority and ratably, in
accordance with the amount of the Net Swap Payments then due,
to the Swap Counterparties under the Interest Rate Swap
Agreements (exclusive of any Swap Termination Payments);
(iv) fourth, with the same priority and ratably, in
accordance with the outstanding principal balance of the Class
A Notes, the outstanding principal balance of the VPTNs and
the amount of any Swap Termination Payments due and payable by
the Issuer to the Swap Counterparties (1) to the Noteholders
of the Monthly Pay Class A Notes, the Accrued Class A Monthly
Pay Interest, (2) to the VPTN Noteholders, the Accrued VPTN
Interest and (3) to the Swap Counterparties, any Swap
Termination Payments; provided, that, if any amounts are
remaining after such allocations are made, such amounts will
to be allocated to the Noteholders of the Class A Notes, the
VPTN Noteholders and the Swap Counterparties pro rata based on
the amounts described above in subclauses (1), (2) and (3),
respectively, that were not paid after giving effect to such
allocations;
(v) fifth, (1) to the holders of all of the
outstanding Subclasses of Class A Notes the Class A Percentage
of all amounts remaining until the principal amount of all
such outstanding Subclasses of Class A Notes have been paid in
full, in the following order of priority:
(a) to the 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;
(b) to the 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;
(c) to the 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;
(d) to the 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;
(e) to the 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;
(2) to the holders of the VPTNs, if any, the VPTN
Percentage of all amounts remaining, sequentially beginning
with the earliest issued VPTN, until all outstanding VPTNs
have been paid in full;
(vi) sixth, 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;
(vii) seventh, 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;
(viii) eighth, to the Issuer for amounts required
to be distributed to the Certificateholders pursuant to the
Trust Agreement and the Sale and Servicing Agreement; and
(ix) ninth, to the Seller, any money or property
remaining after payment in full of the amounts described in
clauses (i)-(viii) 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, each Swap Counterparty
and the Indenture Trustee a notice that states the record date, the payment date
and the amount to be paid.
(c) Upon a sale or other liquidation of the Receivables in the
manner set forth in Section 5.4(a), the Indenture Trustee shall provide
reasonable prior notice of such sale or liquidation to each Noteholder and
Certificateholder and to each Swap Counterparty. A Noteholder, Certificateholder
or Swap Counterparty may submit a bid with respect to such sale.
SECTION 5.5 Optional Preservation of the Receivables. If the
Notes have been declared to be due and payable under Section 5.2 following an
Event of Default, and such declaration and its consequences have not been
rescinded and annulled, the Indenture Trustee may, but need not, elect to
maintain possession of the Indenture Trust Estate and apply proceeds as if there
had been no declaration of acceleration; provided, however, that funds on
deposit in the Collection Account at the time the Indenture Trustee makes such
election or deposited therein during the Collection Period in which such
election is made (including funds, if any, deposited therein from the Reserve
Account and the Payahead Account) shall be applied in accordance with such
declaration of acceleration in the manner specified in Section 4.7(c) of the
Sale and Servicing Agreement. It is the desire of the parties hereto and the
Noteholders that there be at all times sufficient funds for the payment of
principal of and interest on the Notes and any amounts owing to the Swap
Counterparties and the Indenture Trustee shall take such desire into account
when determining whether or not to maintain possession of the Indenture Trust
Estate. In determining whether to maintain possession of the Indenture Trust
Estate, the Indenture Trustee may, but need not, obtain and rely upon an opinion
of an Independent investment banking or accounting firm of national reputation
as to the feasibility of such proposed action and as to the sufficiency of the
Indenture Trust Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Noteholder shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Noteholder has previously given written notice to
the Indenture Trustee of a continuing Event of Default;
(b) the Noteholders of Notes evidencing not less than 25% of
the Note Balance of the Controlling Note Class have made written request to the
Indenture Trustee to institute such Proceeding in respect of such Event of
Default in its own name as Indenture Trustee hereunder;
(c) such Noteholder or Noteholders have offered to the
Indenture Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in complying with such request;
(d) the Indenture Trustee for sixty (60) days after its
receipt of such notice, request and offer of indemnity has failed to institute
such Proceedings; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such sixty-day period by the
Noteholders of Notes evidencing not less than a majority of the Note Balance of
the Controlling Note Class.
It is understood and intended that no one or more Noteholders
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Noteholders or to obtain or to seek to obtain priority or preference over
any other Noteholders or to enforce any right under this Indenture, except in
the manner herein provided.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Noteholders,
each evidencing less than a majority of the Note Balance of the Controlling Note
Class, the Indenture Trustee in its sole discretion may determine what action,
if any, shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this Indenture,
any Noteholder shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on its Note on or
after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Noteholder.
SECTION 5.8 Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any
right or remedy under this Indenture and such Proceeding has been discontinued
or abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the Noteholders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee or any Noteholder to exercise any right or
remedy accruing upon any Default or Event of Default shall impair any such right
or remedy or constitute a waiver of any such Default or Event of Default or any
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
SECTION 5.11 Control by Controlling Note Class of Noteholders.
The Noteholders of Notes evidencing not less than a majority of the Note Balance
of the Controlling Note Class shall have the right to direct the time, method
and place of conducting any Proceeding for any remedy available to the Indenture
Trustee with respect to the Notes or exercising any trust or power conferred on
the Indenture Trustee; provided that:
(a) such direction shall not be in conflict with any rule
of law or with this Indenture;
(b) subject to the express terms of Section 5.4, any direction
to the Indenture Trustee to sell or liquidate the Indenture Trust Estate shall
be by Noteholders of Notes evidencing not less than 100% of the Note Balance of
the Controlling Note Class;
(c) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the Indenture Trust Estate
pursuant to such Section 5.5, then any direction to the Indenture Trustee by
Noteholders of Notes evidencing less than 100% of the Note Balance of the
Controlling Note Class to sell or liquidate the Indenture Trust Estate shall be
of no force and effect; and
(d) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section 5.11,
subject to Section 6.1, the Indenture Trustee need not take any action that it
determines might involve it in costs or expenses for which it would not be
adequately indemnified or expose it to personal liability or might materially
adversely affect or unduly prejudice the rights of any Noteholders not
consenting to such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration
of the acceleration of the maturity of the Notes as provided in Section 5.2, the
Noteholders of Notes evidencing not less than a majority of the Note Balance of
the Controlling Note Class may waive any past Default or Event of Default and
its consequences except a Default (a) in the payment of principal of or interest
on any of the Notes or (b) in respect of a covenant or provision hereof that
cannot be amended, supplemented or modified without the consent of each
Noteholder. In the case of any such waiver, the Issuer, the Indenture Trustee
and the Noteholders shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
SECTION 5.13 Undertaking for Costs. All parties to this
Indenture agree, and each Noteholder by such Noteholder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Indenture Trustee for any action taken, suffered or omitted
by it as Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted by
the Indenture Trustee, (b) any suit instituted by any Noteholder or group of
Noteholders, in each case holding in the aggregate more than 10% of the
principal amount of the Notes Outstanding (or in the case of a right or remedy
under this Indenture which is instituted by the Controlling Note Class, more
than 10% of the Controlling Note Class) or (c) any suit instituted by any
Noteholder for the enforcement of the payment of principal of or interest on any
Note on or after the respective due dates expressed in such Note and in this
Indenture (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance of
this Indenture, and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to
seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Noteholders shall be impaired
by the recovery of any judgment by the Indenture Trustee against the Issuer or
by the levy of any execution under such judgment upon any portion of the
Indenture Trust Estate or upon any of the assets of the Issuer. Any money or
property collected by the Indenture Trustee shall be applied in accordance with
Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain
Obligations. (a) Promptly following a request from the Indenture Trustee to do
so, and at the Administrator's expense, the Issuer shall take all such lawful
action as the Indenture Trustee may request to compel or secure the performance
and observance by the Seller and the Servicer, as applicable, of each of their
obligations to the Issuer under or in connection with the Sale and Servicing
Agreement, or by the Seller and Ford Credit, as applicable, of each of their
obligations under or in connection with the Purchase Agreement, and to exercise
any and all rights, remedies, powers and privileges lawfully available to the
Issuer under or in connection with the Sale and Servicing Agreement and the
Purchase Agreement, as the case may be, to the extent and in the manner directed
by the Indenture Trustee, including the transmission of notices of default on
the part of the Seller, the Servicer or Ford Credit thereunder and the
institution of legal or administrative actions or proceedings to compel or
secure performance by the Seller or the Servicer of each of their obligations
under the Sale and Servicing Agreement or by the Seller or Ford Credit of each
of their obligations under the Purchase Agreement. In addition, 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 Swap Counterparties in accordance with the Interest Rate Swap Agreements and
to exercise any and all rights, remedies, powers and privileges lawfully
available to the Issuer under or in connection with the Interest Rate Swap
Agreements to the extent and in the manner directed by the Indenture Trustee,
including the transmission of notices of default thereunder and the institution
of legal or administrative actions or proceedings to compel or secure
performance by the Swap Counterparty of its obligations under the Interest Rate
Swap Agreements.
(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. In addition, 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 principal
amount of the Controlling Note Class shall, exercise all rights, remedies,
powers, privileges and claims of the Issuer against the Swap Counterparties
including the right or power to take any action to compel or secure performance
or observance by the Swap Counterparties of their obligations to the Issuer
under Interest Rate Swap Agreements and to give any consent, request, notice,
direction, approval, extension, or waiver under the Interest Rate Swap
Agreements and any right of the Issuer to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in
this Indenture and no implied covenants or obligations shall
be read into this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Indenture Trustee and, if required by the terms of this
Indenture, conforming to the requirements of this Indenture;
provided, however, that the Indenture Trustee shall examine
the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 6.1;
(ii) the Indenture Trustee shall not be liable for
any error of judgment made in good faith by a Trustee Officer
unless it is proved that the Indenture Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith
in accordance with a direction received by it pursuant to
Section 5.11.
(d) The Indenture Trustee shall not be liable for interest on
any money received by it except as the Indenture Trustee may agree in writing
with the Issuer.
(e) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this Indenture or the Sale and Servicing Agreement.
(f) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section 6.1 and 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 such Indenture Trustee in accordance with the
provisions of this Indenture.
(i) The Indenture Trustee shall exercise the Issuer's right to
make the determination specified in the "Cross Default" provisio in Part I
clause (g) of the ISDA Master Agreement dated as of October 26, 2000 between
Deutsche Bank AG acting through its New York Branch and the Issuer.
SECTION 6.2 Rights of Indenture Trustee. (a) The Indenture
Trustee may rely and shall be protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Indenture Trustee need not investigate any fact or matters stated in
any such document.
(b) Before the Indenture Trustee acts or refrains from acting,
it may require an Officer's Certificate or an Opinion of Counsel. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on an Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of, or for
the supervision of, any such agent, attorney, custodian or nominee appointed
with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that such action or omission by
the Indenture Trustee does not constitute willful misconduct, negligence or bad
faith.
(e) The Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture or to honor
the request or direction of any of the Noteholders pursuant to this Indenture
unless such Noteholders shall have offered to the Indenture Trustee reasonable
security or indemnity against the reasonable costs, expenses, disbursements,
advances and liabilities which might be incurred by it, its agents and its
counsel in compliance with such request or direction.
(g) Any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by an Issuer Request.
SECTION 6.3 Individual Rights of Indenture Trustee. The
Indenture Trustee, in its individual or any other capacity, may become the owner
or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates
with the same rights it would have if it were not Indenture Trustee. Any Note
Paying Agent, Note Registrar, co-registrar or co-paying agent hereunder may do
the same with like rights.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture
Trustee (i) shall not be responsible for, and makes no representation as to, the
validity or adequacy of this Indenture or the Notes and (ii) shall not be
accountable for the Issuer's use of the proceeds from the Notes, or responsible
for any statement of the Issuer in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes (all of which shall be
taken as statements of the Issuer) other than the Indenture Trustee's
certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is
continuing and if it is known to a Trustee Officer of the Indenture Trustee, the
Indenture Trustee shall mail to each Noteholder notice of such Default within
ninety (90) days after it occurs. Except in the case of a Default in payment of
principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Trustee Officers in
good faith determines that withholding the notice is in the interests of the
Noteholders.
SECTION 6.6 Reports by Indenture Trustee to Noteholders. Upon
delivery to the Indenture Trustee by the Servicer of such information prepared
by the Servicer pursuant to Section 3.9 of the Sale and Servicing Agreement as
may be required to enable each Noteholder to prepare its federal and State
income tax returns, the Indenture Trustee shall deliver such information to the
Noteholders.
SECTION 6.7 Compensation and Indemnity. (a) The Issuer shall,
or shall cause the Administrator to, pay to the Indenture Trustee from time to
time reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall, or shall cause the Administrator to, reimburse
the Indenture Trustee for all reasonable out-of-pocket expenses incurred or made
by it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. The Issuer shall, or shall cause the Administrator to,
indemnify the Indenture Trustee for, and to hold it harmless against, any and
all loss, liability or expense (including attorneys' fees) incurred by it in
connection with the administration of this trust and the performance of its
duties hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The Indenture Trustee shall notify the Issuer
and the Administrator promptly of any claim for which it may seek indemnity.
Failure by the Indenture Trustee to so notify the Issuer and the Administrator
shall not relieve the Issuer or the Administrator of its obligations hereunder.
The Issuer shall, or shall cause the Administrator to, defend any such claim,
and the Indenture Trustee may have separate counsel and the Issuer shall, or
shall cause the Administrator to, pay the fees and expenses of such counsel.
Neither the Issuer nor the Administrator need reimburse any expense or indemnity
against any loss, liability or expense incurred by the Indenture Trustee through
the Indenture Trustee's own willful misconduct, negligence or bad faith.
(b) The Issuer's payment obligations to the Indenture Trustee
pursuant to this Section 6.7 shall survive the resignation or removal of the
Indenture Trustee and the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(iv) or (v) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or State bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee. (a) No
resignation or removal of the Indenture Trustee, and no appointment of a
successor Indenture Trustee, shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section 6.8 and
payment in full of all sums due to the Indenture Trustee pursuant to Section
6.7. The Indenture Trustee may resign at any time by so notifying the Issuer.
The Noteholders of Notes evidencing not less than a majority in Note Balance of
the Controlling Note Class may remove the Indenture Trustee without cause by so
notifying such Indenture Trustee and the Issuer and may appoint a successor
Indenture Trustee. The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with
Section 6.11;
(ii) an Insolvency Event occurs with respect to the
Indenture Trustee;
(iii) a receiver or other public officer takes
charge of the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes
incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture Trustee in such event
being referred to herein as the retiring Indenture Trustee), the Issuer shall
promptly appoint a successor Indenture Trustee.
(b) Any successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Issuer and shall concurrently deliver a copy of such acceptance to each Swap
Counterparty. Thereupon, if all sums due the retiring Indenture Trustee pursuant
to Section 6.7 have been paid in full, the resignation or removal of the
retiring Indenture Trustee shall become effective, and the successor Indenture
Trustee shall have all the rights, powers and duties of the Indenture Trustee
under this Indenture. The successor Indenture Trustee shall mail a notice of its
succession to Noteholders. If all sums due the retiring Indenture Trustee
pursuant to Section 6.7 have been paid in full, the retiring Indenture Trustee
shall promptly transfer all property held by it as Indenture Trustee to the
successor Indenture Trustee.
(c) If a successor Indenture Trustee does not take office
within sixty (60) days after the retiring Indenture Trustee resigns or is
removed, the retiring Indenture Trustee, the Issuer or the Noteholders of Notes
evidencing not less than a majority in Note Balance of the Controlling Note
Class may petition any court of competent jurisdiction for the appointment of a
successor Indenture Trustee. If the Indenture Trustee fails to comply with
Section 6.11, any Noteholder who has been a bona fide Noteholder for at least
six (6) months may petition any court of competent jurisdiction for the removal
of the Indenture Trustee and the appointment of a successor Indenture Trustee.
(d) Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section 6.8, the obligations of the Issuer and the
Administrator under Section 6.7 shall continue for the benefit of the retiring
Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. (a) If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation or banking association without any further act shall be the
successor Indenture Trustee; provided that such corporation or banking
association shall be otherwise qualified and eligible under Section 6.11. The
Indenture Trustee shall provide the Rating Agencies with prior written notice of
any such transaction.
(b) In case at the time such successor or successors by
merger, conversion or consolidation to the Indenture Trustee shall succeed to
the trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the Indenture Trustee may
adopt the certificate of authentication of any predecessor trustee, and deliver
such Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Indenture Trustee may authenticate
such Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee. In all such cases such certificates shall
have the full force which it is provided anywhere in the Notes or in this
Indenture that the certificate of the Indenture Trustee shall have.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. (a) Notwithstanding any other provisions of this Indenture,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Indenture Trust Estate may at the time be
located, the Indenture Trustee shall have the power and may execute and deliver
an instrument to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity and for the
benefit of the Noteholders and the Swap Counterparties, such title to the
Indenture Trust Estate, or any part hereof, and, subject to the other provisions
of this Section 6.10, such powers, duties, obligations, rights and trusts as the
Indenture Trustee may consider necessary or desirable. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be
conferred or imposed upon and exercised or performed by the
Indenture Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or
co-trustee shall not be authorized to act separately without
the Indenture Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Indenture
Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Indenture
Trust Estate or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally
liable by reason of any act or omission of any other trustee
hereunder; and
(iii) the Indenture Trustee may at any time accept
the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer to
this Indenture and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection to, the Indenture Trustee. Every such instrument
shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Indenture Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. (a) The Indenture
Trustee shall at all times satisfy the requirements of TIA Section 310(a). The
Indenture Trustee or its parent shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition and shall have a long-term debt rating of investment grade by each of
the Rating Agencies or shall otherwise be acceptable to each of the Rating
Agencies. The Indenture Trustee shall comply with TIA Section 310(b);
(b) Within ninety (90) days after ascertaining the occurrence
of an Event of Default which shall not have been cured or waived, unless
authorized by the Commission, the Indenture Trustee shall resign with respect to
the Class A Notes and/or VPTNs 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 more of such Classes, as applicable, so that there
will be separate Indenture Trustees for the Class A Notes, the VPTNs and the
Class B Notes. In the event the Indenture Trustee fails to comply with the terms
of the preceding sentence, the Indenture Trustee shall comply with clauses (ii)
and (iii) of TIA Section 310(b).
(c) In the case of the appointment hereunder of a successor
Indenture Trustee with respect to any Class of Notes pursuant to this Section
6.11, the Issuer, the retiring Indenture Trustee and the successor Indenture
Trustee with respect to such Class of Notes shall execute and deliver an
indenture supplemental hereto wherein each successor Indenture Trustee shall
accept such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, the successor
Indenture Trustee all the rights, powers, trusts and duties of the retiring
Indenture Trustee with respect to the Notes of the Class to which the
appointment of such successor Indenture Trustee relates, (ii) if the retiring
Indenture Trustee is not retiring with respect to all Classes of Notes, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Indenture Trustee
with respect to the Notes of each Class as to which the retiring Indenture
Trustee is not retiring shall continue to be vested in the Indenture Trustee and
(iii) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Indenture Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Indenture
Trustees co-trustees of the same trust and that each such Indenture Trustee
shall be a trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Indenture Trustee; and
upon the removal of the retiring Indenture Trustee shall become effective to the
extent provided herein.
SECTION 6.12 Preferential Collection of Claims Against Issuer.
The Indenture Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). An Indenture Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
SECTION 6.13 Interest Rate Swap Provisions. (a) The Issuer has
entered into the Variable Pay Term Notes Interest Rate Swap Agreement, in a form
satisfactory to the Rating Agencies, to hedge the floating rate interest expense
on the VPTNs. The Issuer may, from time to time, enter into one or more
replacement Variable Pay Term Notes Interest Rate Swap Agreements in the event
that any Variable Pay Term Notes Interest Rate Swap Agreement is terminated
prior to its scheduled expiration pursuant to an Event of Default or a
Termination Event (each such term as defined in the Variable Pay Term Notes
Interest Rate Swap Agreement). The notional amount under the Variable Pay Term
Notes Interest Rate Swap Agreement will be initially equal to zero, and will be
increased by the principal balance of any VPTNs issued and reduced from time to
time by amounts paid as principal on the VPTNs pursuant to the information
provided each month in the Servicer's Certificate.
(b) The Issuer has entered into the Floating Rate Class A Note
Interest Rate Swap Agreements, each in a form satisfactory to the Rating
Agencies, to hedge the floating rate interest expense on the Floating Rate Class
A Notes. The Issuer may, from time to time, enter into one or more replacement
Floating Rate Class A Note Interest Rate Swap Agreements in the event that any
Floating Rate Class A Note Interest Rate Swap Agreement is terminated prior to
its scheduled expiration pursuant to an Event of Default or a Termination Event
(each such term as defined in the Floating Rate Class A Note Interest Rate Swap
Agreements). The notional amounts of the Floating Rate Class A Note Interest
Rate Swaps will be determined as follows:
(i) The notional amount of the Class A-1 Interest
Rate Swap will be initially equal to the principal amount of
the Class A-1 Notes on the Closing Date and will be reduced by
the amount of any principal payments on the Class A-1 Notes.
(ii) The notional amount of the Class A-4 Interest
Rate Swap will be initially equal to the principal amount of
the Class A-4 Notes on the Closing Date and will be reduced by
the amount of any principal payments on the Class A-4 Notes.
(iii) The notional amount of the Class A-5 Interest
Rate Swap will be initially equal to the principal amount of
the Class A-5 Notes on the Closing Date and will be reduced by
the amount of any principal payments on the Class A-5 Notes.
(c) On each Monthly Distribution Date, Net Swap Payments
(other than any Swap Termination Payments) relating to the Floating Rate Class A
Note Interest Rate Swap Agreements and the Variable Pay Term Notes Interest Rate
Swap Agreement will rank senior to interest payments on the Class A Notes and
VPTNs and the deposit of the Class A Quarterly Interest Funding Account Deposit
Amount into the Class A Quarterly Interest Funding Account, and Swap Termination
Payments will rank pari passu with interest payments on the Class A Notes and
VPTNs and with the deposit of the Class A Quarterly Interest Funding Account
Deposit Amount into the Class A Quarterly Interest Funding Account, all as set
forth in Section 8.2 hereof and Section 4.7 of the Sale and Servicing Agreement.
(d) The Indenture Trustee will be responsible for remitting
Net Swap Payments and any Swap Termination Payments payable to each Swap
Counterparty and for collecting the Net Swap Receipts and any Swap Termination
Payments payable to the Issuer, as applicable, on each Monthly Distribution
Date.
(e) In the event that any Swap Counterparty is required to
collateralize any Interest Rate Swap transaction pursuant to the terms of the
applicable Interest Rate Swap Agreement, the Indenture Trustee, upon written
request of the Administrator, shall establish individual collateral accounts and
will hold any securities deposited therein in trust and will invest any cash
amounts in accordance with the provisions of the Interest Rate Swap Agreements.
(f) The Administrator shall calculate and provide written
notification to the related Swap Counterparty and to the Indenture Trustee of
the notional amount of each Interest Rate Swap as of each Monthly Distribution
Date on or before the twelfth day of the month of the related Monthly
Distribution Date. The Administrator shall also obtain the calculation of LIBOR
from the Calculation Agent under this Agreement and shall calculate the amount,
for each Monthly Distribution Date, of all Net Swap Payments, Net Swap Receipts,
and Swap Termination Payments payable on each Monthly Distribution Date and
shall provide written notification of such amounts to the related Swap
Counterparties and to the Indenture Trustee prior to such Monthly Distribution
Date. At least five days before the effective date of any proposed amendment or
supplement to an Interest Rate Swap Agreement, the Administrator shall provide
the Rating Agencies with a copy of such amendment or supplement. Unless the
amendment or supplement clarifies any term or provision, corrects any
inconsistency, cures any ambiguity, or corrects any typographical error in such
Interest Rate Swap Agreement, an amendment or supplement to such Interest Rate
Swap Agreement will be effective only after satisfaction of the Rating Agency
Condition.
(g) Promptly following the early termination of any Interest
Rate Swap Agreement due to an Event of Default or Termination Event (as each
such term is defined in such Interest Rate Swap Agreement), the Issuer will use
reasonable efforts to cause the Issuer to enter into a replacement interest rate
swap agreement on terms similar to those of such Interest Rate Swap Agreement
with an eligible swap counterparty.
(h) Each Interest Rate Swap Agreement shall provide that a
termination event will occur thereunder if the rating of the Swap Counterparty
is downgraded below a rating of "Aa3" by Moody's, "AA-" by Fitch or "AA-" by S&P
or is suspended or withdrawn by any such Rating Agency, and within 30 days of
such downgrade, suspension or withdrawal, the Swap Counterparty fails to either
(i) deliver or post collateral acceptable to the Issuer in amounts sufficient to
secure its obligations under such Interest Rate Swap Agreement, (ii) assign its
rights and obligations under such Interest Rate Swap Agreement to a replacement
counterparty acceptable to the Issuer or (iii) establish other arrangements
necessary, if any, in each case so that the Rating Agencies confirm the ratings
of the Notes that were in effect immediately prior to such downgrade, suspension
or withdrawal. If the Swap Counterparty is required to collateralize with
respect to any Interest Rate Swap Agreement, the Administrator shall send
written instructions to the Indenture Trustee to establish individual collateral
accounts and to hold any securities deposited therein in trust and invest any
cash amounts therein in accordance with the provisions of such Interest Rate
Swap Agreement.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer shall furnish or cause to be furnished to
the Indenture Trustee (a) not more than five (5) days after each Record Date, a
list, in such form as the Indenture Trustee may reasonably require, of the names
and addresses of the Noteholders as of such Record Date and (b) at such other
times as the Indenture Trustee may request in writing, within thirty (30) days
after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than ten (10) days prior to the time such list is
furnished; provided, however, that (i) so long as the Indenture Trustee is the
Note Registrar, no such list shall be required to be furnished and (ii) no such
list shall be required to be furnished with respect to Noteholders of Book-Entry
Notes.
SECTION 7.2 Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Noteholders contained
in the most recent list furnished to the Indenture Trustee as provided in
Section 7.1 and the names and addresses of Noteholders received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any
list furnished to it as provided in such Section 7.1 upon receipt of a new list
so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or
under the Notes. Upon receipt by the Indenture Trustee of any request by three
or more Noteholders or by one or more Noteholders of Notes evidencing not less
than 25% of the Note Balance of the Notes Outstanding to receive a copy of the
current list of Noteholders (whether or not made pursuant to TIA Section
312(b)), the Indenture Trustee shall promptly notify the Administrator thereof
by providing to the Administrator a copy of such request and a copy of the list
of Noteholders produced in response thereto.
(c) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA Section 312(c).
SECTION 7.3 Reports by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within fifteen
(15) days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the
Issuer may be required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the
Commission in accordance with the rules and regulations
prescribed from time to time by the Commission such additional
information, documents and reports with respect to compliance
by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules
and regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders
described in TIA Section 313(c)) such summaries of any
information, documents and reports required to be filed by the
Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a)
and by rules and regulations prescribed from time to time by
the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of
the Issuer shall correspond to the calendar year.
SECTION 7.4 Reports by Indenture Trustee. (a) If required by
TIA Section 313(a), within sixty (60) days after each May 15, beginning with May
15, 2001, the Indenture Trustee shall mail to each Noteholder as required by TIA
Section 313(c) a brief report dated as of such date that complies with TIA
Section 313(a). The Indenture Trustee also shall comply with TIA Section 313(b).
(b) A copy of each report at the time of its mailing to
Noteholders shall be filed by the Indenture Trustee with the Commission and each
stock exchange, if any, on which the Notes are listed. The Issuer shall notify
the Indenture Trustee if and when the Notes are listed on any stock exchange.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture and the Sale
and Servicing Agreement. The Indenture Trustee shall apply all such money
received by it as provided in this Indenture and the Sale and Servicing
Agreement. Except as otherwise expressly provided in this Indenture, if any
default occurs in the making of any payment or performance under any agreement
or instrument that is part of the Indenture Trust Estate, the Indenture Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
SECTION 8.2 Trust Accounts and Payahead Account. (a) On or
prior to the Closing Date, the Issuer shall cause the Servicer to establish and
maintain the Trust Accounts and the Payahead Account as provided in Sections 4.1
and 4.8 of the Sale and Servicing Agreement.
(b) On or before each Monthly Distribution Date, the Servicer
shall deposit all Available Collections with respect to the Collection Period
preceding such Monthly Distribution Date in the Collection Account as provided
in Sections 4.2, 4.3, 4.4 and 4.6 of the Sale and Servicing Agreement. On or
before each Monthly Distribution Date, all amounts required to be withdrawn from
the Reserve Account and deposited in the Collection Account pursuant to Section
4.6 of the Sale and Servicing Agreement shall be withdrawn by the Indenture
Trustee from the Reserve Account and deposited to the Collection Account. With
respect to any VPTN issued on any Monthly Distribution Date, the Indenture
Trustee shall instruct the purchaser of such VPTN to deposit the purchase price
thereof into the VPTN Proceeds Account on or prior to such Monthly Distribution
Date, as set forth in Section 4.6(c) of the Sale and Servicing Agreement. In
addition, each Servicer Liquidity Advance shall be deposited into the VPTN
Proceeds Account on or prior to the related Monthly Distribution Date. On each
Monthly Distribution Date, prior to giving effect to the withdrawals described
in Section 8.2(f), the Indenture Trustee shall withdraw amounts from the VPTN
Proceeds Account with respect to any related Servicer Liquidity Advances, to the
extent and in the manner as set forth in Section 4.5 of the Sale and Servicing
Agreement, and pay such amounts to the Servicer. The Indenture Trustee shall
direct the applicable Swap Counterparties to deposit, and shall otherwise cause
to be deposited (1) on each Monthly Distribution Date, the Net Swap Receipts for
the Monthly Pay Floating Rate Class A Note Interest Rate Swaps and the Variable
Pay Term Note Interest Rate Swap into the Collection Account and (2) on each
Quarterly Payment Date (or on any other Applicable Monthly Distribution Date),
the Net Swap Receipts for the Quarterly Pay Floating Rate Class A Note Interest
Rate Swaps into the Class A Quarterly Interest Funding Account. In addition, the
Indenture Trustee shall direct the applicable Swap Counterparties to deposit,
and shall otherwise cause to be deposited, all Swap Termination Payments paid by
Swap Counterparties to the Trust into the Collection Account; provided, that,
upon direction by the Issuer, the Indenture Trustee may retain a part or all of
such Swap Termination Payments to be applied as an initial payment to a
replacement Swap Counterparty; and provided further that the Indenture Trustee
shall promptly deposit any retained amounts that are not so applied to the
Collection Account.
(c) On each Monthly 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 Monthly 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, with the same priority and ratably, in
accordance with the amount of such Net Swap Payments, (a) to the
applicable Swap Counterparties, any Net Swap Payments payable by the
Trust on the Variable Pay Term Notes Interest Rate Swap, (b) to the
Class A Quarterly Interest Funding Account, the excess of (A)(x)the
total amount of the Accrued Fixed Rate Payments on the Quarterly Pay
Floating Rate Class A Note Interest Rate Swaps minus (y) the aggregate
amount accrued from the preceding Monthly Distribution Date on the
Quarterly Pay Floating Rate Class A Note Interest Rate Swaps, in each
case at an interest rate equal to three-month LIBOR plus the spread on
the related Subclass of Floating Rate Class A Notes over (B) the total
amount on deposit in the Class A Quarterly Interest Funding Account
immediately prior to such Monthly Distribution Date, and (c) to the
applicable Swap Counterparties, any Net Swap Payments payable by the
Trust on the Monthly Pay Floating Rate Class A Note Interest Rate
Swaps, if any;
(iii) third, with the same priority and ratably, in
accordance with the outstanding principal balances of the Monthly Pay
Class A Notes, Quarterly Pay Class A Notes and the VPTNs and the
amounts of any Swap Termination Payments due and payable by the Issuer
to the Swap Counterparties:
(1) to the Indenture Trustee for deposit into the
Class A Quarterly Interest Funding Account an amount equal to
the sum of:
(a) on each Monthly Payment Date that is not a
Quarterly Payment Date, the aggregate of the
Accrued Fixed Rate Payments on each of the
Quarterly Pay Floating Rate Class A Note
Interest Rate Swaps minus the amount
deposited under clause (c)(ii)(b) above; and
(b) on each Quarterly Payment Date, an amount
equal to the excess of (I) the Accrued
Class A Quarterly Pay Interest for such
Quarterly Payment Date over (II) the
amount on deposit in the Class A Quarterly
Interest Funding Account on such
Quarterly Payment Date, after giving
effect to all other deposits to be
made under clause (c)(ii)(b) and the
deposit of any Net Swap Receipts, and the
withdrawal of any Net Swap Payments, in
each case with respect to the Quarterly
Pay Class A Note Interest Rate Swaps,
pursuant to Section 8.2 (d); provided,
that on each Monthly Distribution Date, if
one or more of the Quarterly Pay Floating
Rate Class A Interest Rates Swaps have
been terminated and no replacement
Quarterly Pay Floating Rate Class A Note
Interest Rate Swaps have been entered
into, then the portion of the Class A
Quarterly Interest Funding Account
Deposit Amount deposited into the
Class A Quarterly Interest Funding Account
on such Monthly Distribution Dates with
respect to the related Subclasses of
Quarterly Pay Class A Notes will be equal
to the amount of interest accrued on those
Subclasses from the preceding Monthly
Distribution Date at the rate
established as of the prior Quarterly
Payment Date.
(2) to the Indenture Trustee for the Noteholders of
the Monthly Pay Class A Notes an amount equal to the Accrued
Class A Monthly Pay Interest;
(3) to the Indenture Trustee for the Noteholders
of the Variable Pay
Term Notes an amount equal to the Accrued VPTN Interest; and
(4) to the Swap Counterparties, the amount of
any Swap Termination Payments due and payable to them;
provided, that, any amounts remaining shall be deposited or paid to the Class A
Quarterly Interest Funding Account, the Noteholders of the Monthly Pay Class A
Notes, the VPTN Noteholders and the Swap Counterparty or Swap Counterparties,
pro rata, based on the amounts described in subclauses (1), (2), (3) and (4)
which were not deposited or paid, as applicable, after giving effect to such
allocations;
(iv) fourth, to the Principal Distribution Account,
the First Priority Principal Distribution Amount;
(v) fifth, to the Noteholders of Class B Notes, the
Accrued Class B Note Interest; provided that if there are not
sufficient funds available to pay the entire amount of the Accrued
Class B Note Interest, the amounts available shall be applied to the
payment of such interest on the Class B Notes on a pro rata basis;
(vi) sixth, to the Principal Distribution Account,
the Second Priority Principal Distribution Amount;
(vii) seventh, to the Certificate Interest
Distribution Account, the Accrued Class C Certificate Interest;
(viii) eighth, to the Certificate Interest
Distribution Account, the Accrued Class D Certificate Interest.
(ix) ninth, to the Reserve Account, the amount, if
any, required to reinstate the amount in the Reserve Account up to the
Specified Reserve Balance ( calculated after giving effect to all
amounts including amounts pursuant to clause (x) below, deposited to
the Principal Distribution Account and then transferred to the
Accumulation Account on such Monthly Distribution Date);
(x) tenth, to the Principal Distribution Account,
the Regular Principal Distribution Amount; and
(xi) eleventh, to the Seller, any funds remaining on
deposit in the Collection Account with respect to the Collection Period
preceding such Monthly Distribution Date.
Notwithstanding any other provision of this Article VIII and
subject to Section 5.4(b), (A) following the occurrence and during the
continuation of an Event of Default specified in Section 5.1(i), 5.1(ii),
5.1(iv) or 5.1(v) which has resulted in an acceleration of the Notes (or
following the occurrence of any such event after an Event of Default specified
in Section 5.1(iii) has occurred and the Notes have been accelerated), the
Servicer shall instruct the Indenture Trustee to transfer the funds on deposit
in the Collection Account remaining after the application of clauses (i), (ii)
and (iii) above to the Principal Distribution Account to the extent necessary to
reduce the principal amount of all the Class A Notes and the VPTNs to zero, (B)
following the occurrence and during the continuation of an Event of Default
specified in Section 5.1(iii) which has resulted in an acceleration of the
Notes, the Servicer shall instruct the Indenture Trustee to transfer the funds
on deposit in the Collection Account remaining after the application of clauses
(i), (ii), (iii), (iv) and (v) above to the Principal Distribution Account to
the extent necessary to reduce the principal amount of all the Notes to zero,
and (C) in the case of an event described in clause (A) or (B), the
Certificateholders will not receive any distributions of principal or interest
until the principal amount and accrued interest on all the Notes has been paid
in full.
(d) On each Quarterly Payment Date (or, on any other Monthly
Distribution Date that is not a Quarterly Payment Date if an Early Amortization
Event or an acceleration of the Notes due to an Event of Default has occurred on
or prior to the LIBOR Determination Date relating to such Monthly Distribution
Date), after giving effect to the deposit of any Net Swap Receipts under the
Floating Rate Class A Note Interest Rate Swap Agreements to, and the deposit of
other events pursuant to clause (c)(iii)(1)(b) to, and the withdrawal of any Net
Swap Payments under the Floating Rate Class A Note Interest Rate Swap Agreements
from, the Class A Quarterly Interest Funding Account, the Trust will apply
amounts on deposit in the Class A Quarterly Interest Funding Account as follows:
(1) first, to pay the holders of each Subclass of
Quarterly Pay Class A Notes amounts on deposit in the Class A
Quarterly Interest Funding Account, on a pro rata basis,
according to the amount of interest due to each Subclass to
the extent necessary to pay the full amount of interest due
and payable on each such Subclass; and
(2) second, to deposit any amounts remaining into the
Collection Account to be applied on such Quarterly Payment
Date or Monthly Distribution Date, as applicable, in
accordance with the priorities set forth in Section 8.2(c).
(e) On each Monthly Distribution Date during the Revolving
Period that is a Subsequent Transfer Date, the Indenture Trustee shall withdraw
all funds on deposit in the Principal Distribution Account (after giving effect
to the amounts deposited pursuant to Section 8.2(c)) and any amounts on deposit
in the Accumulation Account and apply such amounts:
(i) first, to make a payment to the Seller in consideration for
the purchase of Additional Receivables in accordance with the
instructions of the Servicer delivered pursuant to Section
4.7(d) of the Sale and Servicing Agreement; and
(ii) second, to deposit all amounts remaining in the Principal
Distribution Account into the Accumulation Account.
(f) On each Monthly Distribution Date during the Amortization
Period, 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
withdrawals from the Principal Distribution Account and the VPTN Proceeds
Account, and, if such Monthly Distribution Date is a Targeted Scheduled
Distribution Date, from the Accumulation Account, and make distributions and
payments in the following order of priority:
(1) FIRST, to the holders of the Class A Notes and VPTNs in
reduction of principal until the principal amounts of the
outstanding Class A Notes and VPTNs have been paid in full, in
accordance with the following:
(A) On each Targeted Scheduled Distribution Date for a
Subclass of Class A Notes upon which the Trust is
able to issue and does issue VPTNs,
(i) first, from amounts on deposit in the
Principal Distribution Account to the
holders of the outstanding VPTNs, if
any, (excluding any VPTNs issued on
such Targeted Scheduled Distribution
Date) until all outstanding VPTNs are
paid in full, and then any remaining
amounts to the holders of such Subclass
or Subclasses of Class A Notes that have
reached or passed their Targeted Scheduled
Distribution Dates until paid in full; and
(ii) second, from amounts, if any, on deposit in
the Accumulation Account to the holders of
such Subclass of Class A Notes which has
reached its Targeted Scheduled Distribution
Date until paid in full;
(iii) third, from amounts on deposit in the VPTN
Proceeds Account to the holders of such
Subclass or Subclasses of Class A Notes that
have reached or passed their Targeted
Scheduled Distribution Dates until paid in
full; and
(iv) fourth, from any remaining amounts on
deposit in the Principal Distribution
Account to the holders of the VPTNs until
paid in full, and then any remaining amounts
will be deposited to the Accumulation
Account if any Subclasses of Class A Notes
are outstanding which have not reached or
passed their Targeted Scheduled Distribution
Dates;
(B) On each Targeted Scheduled Distribution Date for a
Subclass of Class A Notes upon which the Trust is
unable to issue VPTNs or on any Monthly Distribution
Date which is not a Targeted Scheduled Distribution
Date upon which a Subclass or Subclasses of Class A
Notes which have reached or passed their Targeted
Scheduled Distribution Dates remain outstanding (and
no Early Amortization Event has occurred),
(i) first,
(a) from amounts on deposit in the
Principal Distribution Account to
the holders of the outstanding
Variable Pay Term Notes, if any, the
Variable Pay Term Note Percentage of
such amounts until all outstanding
Variable Pay Term Notes are paid in
full; and
(b) from amounts on deposit in the
Principal Distribution Account to
the holders of all of the
outstanding Subclasses of Class A
Notes which have reached or
passed their Targeted Scheduled
Distribution Dates, the Class A
Percentage of all amounts on
deposit in the Principal
Distribution Account until the
principal amount of all of such
outstanding Subclasses of Class A
Notes has been paid in full;
(ii) second, from amounts on deposit in the
Accumulation Account, if any, to the holders
of such Subclass of Class A Notes which has
reached its Targeted Scheduled Distribution
Date until paid in full;
(iii) third, from amounts on deposit in the VPTN
Proceeds Account to the holders of such
Subclass or Subclasses of Class A Notes
which have reached or passed their Targeted
Scheduled Distribution Date until paid in
full; and
(iv) fourth, from any remaining amounts on
deposit in the Principal Distribution
Account to the holders of the VPTNs until
paid in full, and then any remaining amounts
will be deposited to the Accumulation
Account if any Class A Notes are outstanding
which have not reached or passed their
Targeted Scheduled Distribution Date;
(C) On each Monthly Distribution Date that is not a
Targeted Scheduled Distribution Date for a Subclass
of Class A Notes and as of which the Trust has paid
in full each Subclass of Class A Notes which has
reached or passed its Targeted Scheduled Distribution
Date (and no Early Amortization Event has occurred),
(i) first,
(a) from amounts on deposit in the
Principal Distribution Account to
the holders of the outstanding
VPTNs, if any, until all outstanding
VPTNs have been paid in full; and
(b) second, if any Class A Notes remain
outstanding, the remainder, if any,
to the Accumulation Account;
(D) On each Monthly Distribution Date following an
Early Amortization Event, to the holders of the
outstanding Subclasses of Class A Notes until the
principal balances of all such outstanding
Subclasses of Class A Notes have been paid in full,
in the following order of priority:
(i) to the Class A-1 Notes until paid in full;
(ii) to the Class A-2 Notes until paid in full;
(iii) to the Class A-3 Notes until paid in full;
(iv) to the Class A-4 Notes until paid in full;
and
(v) to the Class A-5 Notes until paid in full;
(2) SECOND, to the holders of the Class B Notes in reduction of
principal until the principal amount of the outstanding Class B
Notes has been paid in full;
(3) THIRD to the Certificate Principal Distribution Account,
until the Certificate Balance of the Class C Certificates has
been paid in full;
(4) FOURTH, to the Certificate Principal Distribution Account,
until the Certificate Balance of the Class D Certificates has
been paid in full; and
(5) FIFTH, to the seller, any funds remaining on deposit
in the Principal Distribution Account;
provided, in each case, that in the event there are not sufficient funds to pay
the principal amount of all Notes or Certificates within a Subclass or Class
having the same priority, principal payments shall be made to each holder within
such Subclass or Class on a pro rata basis, and provided, further, all of the
Subclasses of Class A Notes will be paid sequentially, so that no principal
payments will be made on any Subclass of Class A Notes, until all Subclasses of
Class A Notes with a lower numerical designation have been paid in full; and
provided further if at any time more than one VPTN is outstanding, principal
will be paid to the VPTNs sequentially, with the earliest issued VPTN being paid
in full before any principal is paid to any VPTN with a later issuance date.
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, the Class A Quarterly Interest
Funding Account, the Payahead Account and the Accumulation Account shall be
invested by the Qualified Institution or the Qualified Trust Institution
maintaining such account (which shall initially be 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, the Accumulation Account and the Reserve Account
shall be withdrawn by the Indenture Trustee from such accounts (but only under
the circumstances set forth in Sections 4.6(b) and 4.8(c) in the Sale and
Servicing Agreement in the case of the Reserve Account) and distributed as
provided in Section 4.1 and 4.8 of the Sale and Servicing Agreement. All income
or other gain from investments of monies deposited into the Class A Quarterly
Interest Funding Account shall be retained in such account and applied in the
manner set forth in Section 8.2(d). The Servicer shall not direct the Qualified
Institution or Qualified Trust Institution maintaining the Collection Account,
the Class A Quarterly Interest Funding Account, the Payahead Account or the
Accumulation Account to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security interest
Granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction by the Servicer to
make any such investment or sale, if requested by the applicable Qualified
Institution or Qualified Trust Institution, the Issuer shall deliver to such
Qualified Institution or Qualified Trust Institution an Opinion of Counsel,
acceptable to such Qualified Institution or Qualified Trust Institution, to such
effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in
any way be held liable by reason of any insufficiency in any of the Trust
Accounts or in the Payahead Account resulting from any loss on any Permitted
Investment included therein, except for losses attributable to the Indenture
Trustee's failure to make payments on such Permitted Investments issued by the
Indenture Trustee, in its commercial capacity as principal obligor and not as
trustee, in accordance with their terms. In addition, the Indenture Trustee
shall have no duty to monitor the activities of any Qualified Institution or
Qualified Trust Institution (unless such Qualified Institution or Qualified
Trust Institution is also the Indenture Trustee) and shall not in any way be
held liable for the actions or inactions of any Qualified Institution or
Qualified Trust Institution (unless such Qualified Institution or Qualified
Trust Institution is also the Indenture Trustee).
(c) If the Indenture Trustee is the Qualified Institution or
Qualified Trust Institution maintaining the Collection Account, the Class A
Quarterly Interest Funding Account, the Payahead Account or the Accumulation
Account and (i) the Servicer shall have failed to give investment directions for
any funds on deposit in the Collection Account, the Class A Quarterly Interest
Funding Account, the Payahead Account or the Accumulation 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 Monthly 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, the Class A Quarterly Interest Funding Account,
the Payahead Account or the Accumulation Account, as the case may be, in one or
more Permitted Investments described in clause (b) of the definition thereof.
SECTION 8.4 Release of Indenture Trust Estate. (a) Subject to the
payment of its fees and expenses pursuant to Section 6.7, the Indenture Trustee
may, and when required by the provisions of this Indenture shall, execute
instruments to release property from the lien of this Indenture, or convey the
Indenture Trustee's interest in the same, in a manner and under circumstances
that are not inconsistent with the provisions of this Indenture. No party
relying upon an instrument executed by the Indenture Trustee as provided in this
Article VIII shall be bound to ascertain the Indenture Trustee's authority,
inquire into the satisfaction of any conditions precedent or see to the
application of any monies.
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding and all sums due the Indenture Trustee pursuant to Section 6.7
have been paid in full and all amounts owing under each Interest Rate Swap
Agreement have been paid, release any remaining portion of the Indenture Trust
Estate that secured the Notes and the Interest Rate Swap Agreements from the
lien of this Indenture and release to the Issuer or any other Person entitled
thereto any funds then on deposit in the Trust Accounts. The Indenture Trustee
shall release property from the lien of this Indenture pursuant to this Section
8.4(b) only upon receipt of an Issuer Request accompanied by confirmation that
all amounts owing under each Interest Rate Swap Agreement have been paid, an
Officer's Certificate and an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
(c) Each Noteholder or Note Owner, by its acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, acknowledges that
from time to time the Indenture Trustee shall release the lien of this Indenture
on any Receivable to be sold to (i) the Seller in accordance with Section 2.3 of
the Sale and Servicing Agreement and (ii) to the Servicer in accordance with
Section 3.7 of the Sale and Servicing Agreement.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall
receive at least seven (7) days notice when requested by the Issuer to take any
action pursuant to Section 8.4(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, except in connection
with any action contemplated by Section 8.4(c), as a condition to such action,
an Opinion of Counsel, in form and substance satisfactory to the Indenture
Trustee, stating the legal effect of any such action, outlining the steps
required to complete the same, and concluding that all conditions precedent to
the taking of such action have been complied with and such action will not
materially and adversely impair the security for the Notes or the rights of the
Noteholders or adversely affect any Swap Counterparty in contravention of the
provisions of this Indenture; provided, however, that such Opinion of Counsel
shall not be required to express an opinion as to the fair value of the
Indenture Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee in connection with any such
action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of
Noteholders. (a) Without the consent of the Noteholders or the Swap Counterparty
but with prior notice to the Rating Agencies, the Issuer and the Indenture
Trustee may, when authorized by an Issuer Order, at any time and from time to
time, enter into one or more indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of the
execution thereof), in form satisfactory to the Indenture Trustee, for any of
the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to
assure, convey and confirm unto the Indenture Trustee any property
subject or required to be subjected to the lien of this Indenture,
or to subject to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer, and
the assumption by any such successor of the covenants of the
Issuer herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit
of the Noteholders, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any
supplemental indenture or to make any other provisions with
respect to matters or questions arising under this Indenture or
under any supplemental indenture which shall not be inconsistent
with the provisions of the Indenture; provided that such action
shall not materially adversely affect the interests of the
Noteholders or adversely affect the rights or obligations of any
Swap Counterparty under the related Interest Rate Swap Agreement
or modify the obligations of or impair the ability of the Issuer
to fully perform any of its obligations under any Interest Rate
Swap Agreement;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the
Notes and to add to or change any of the provisions of this
Indenture as shall be necessary to facilitate the administration
of the trusts hereunder by more than one trustee, pursuant to the
requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to affect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture
such other provisions as may be expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, may, also without the consent of any of the Noteholders, 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) the Rating Agency Condition shall have
been satisfied with respect to such action, (ii) such action shall not, as
evidenced by an Opinion of Counsel, cause the Issuer to be characterized for
federal or any then Applicable Tax State income tax purposes as an association
taxable as a corporation or otherwise have any material adverse impact on the
federal or any then Applicable Tax State income taxation of any Notes
Outstanding or outstanding Certificates, or any Noteholder or Certificateholder,
(iii)(x) such action shall not, as evidenced by an Opinion of Counsel, adversely
affect the rights or obligations of any Swap Counterparty under the related
Interest Rate Swap Agreement or modify the obligations of or impair the ability
of the Issuer to fully perform any of its obligations under such Interest Rate
Swap Agreement or (y) the Swap Counterparty shall have consented thereto and
(iv) such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interest of any Noteholders. The Swap
Counterparty's consent will be deemed to have been given if the Swap
Counterparty does not object in writing within ten Business Days of receipt of a
written request for such consent.
SECTION 9.2 Supplemental Indentures with Consent of Noteholders.
The Issuer, 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, (ii) such action shall not, as evidenced
by an Opinion of Counsel, cause the Issuer to be characterized for federal or
any then Applicable Tax State income tax purposes as an association taxable as a
corporation or otherwise have any material adverse impact on the federal or any
then Applicable Tax State income taxation of any Notes Outstanding or
outstanding Certificates, or any Noteholder or Certificateholder, (iii)(x) such
action shall not, as evidenced by an Opinion of Counsel, adversely affect the
rights or obligations of any Swap Counterparty under the related Interest Rate
Swap Agreement or modify the obligations of, or impair the ability of the Issuer
to fully perform any of its obligations under such Interest Rate Swap Agreement
or (y) the Swap Counterparty shall have consented thereto (and the Swap
Counterparty's consent will be deemed to have been given if the Swap
Counterparty does not object in writing within ten Business Days of receipt of a
written request for such consent), and provided, further, that no such
supplemental indenture shall, without the consent of each Outstanding Note
affected thereby:
(i) modify or alter provisions of this Section 9.2;
(ii) change the Targeted Scheduled Distribution Date or the Final
Scheduled Distribution Date or the date of payment of any installment
of principal of or interest on any Note, or reduce the principal amount
thereof, the interest rate thereon or the Redemption Price with respect
thereto, change the provisions of this Indenture relating to the
application of collections on, or the proceeds of the sale of, the
Indenture Trust Estate to payment of principal of or interest on the
Notes, or change any place of payment where, or the coin or currency in
which, any Note or the interest thereon is payable, or impair the right
to institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor, as
provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(iii) reduce the percentage of the principal amount of the Notes
Outstanding or the Controlling Note Class, the consent of the
Noteholders of which is required for any such supplemental indenture,
or the consent of the Noteholders of which is required for any waiver
of compliance with certain provisions of this Indenture or certain
Defaults or Events of Default hereunder and their consequences provided
for in this Indenture;
(iv) modify or alter (x) the provisions of the proviso to the
definition of the term "Outstanding" or (y) the definition of
"Controlling Note Class";
(v) reduce the percentage of the principal amount of the Notes
Outstanding or of the Controlling Note Class required to direct or
consent to a sale or liquidation by the Indenture Trustee of the
Indenture Trust Estate pursuant to Section 5.4 if the proceeds of such
sale or liquidation would be insufficient to pay the principal amount
and accrued but unpaid interest on the Notes and/or the Certificates,
as applicable;
(vi) modify any provision of this Indenture specifying a
percentage of the aggregate Note Balance of the Notes necessary to
amend this Indenture or the other Basic Documents except to increase
any percentage specified herein or to provide that certain additional
provisions of this Indenture or the other Basic Documents cannot be
modified or waived without the consent of the Noteholder of each
Outstanding Note affected thereby;
(vii) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Monthly Distribution Date
(including the calculation of any of the individual components of such
calculation) or to affect the rights of the Noteholders to the benefit
of any provisions for the mandatory redemption of the Notes contained
herein; or
(viii) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Indenture Trust Estate or, except as otherwise permitted or
contemplated herein, terminate the lien of this Indenture on any such
collateral at any time subject hereto or deprive any Noteholder of the
security provided by the lien of this Indenture.
The Indenture Trustee may in its discretion or upon receipt of an Opinion of
Counsel determine whether or not any Notes would be affected by any supplemental
indenture and any such determination shall be conclusive upon the Noteholders of
all Notes, whether theretofore or thereafter authenticated and delivered
hereunder. The Indenture Trustee shall not be liable for any such determination
made in good faith.
It shall not be necessary for any Act of Noteholders under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section 9.2, the
Indenture Trustee shall mail to each Swap Counterparty a copy of such
supplemental indenture and to the Noteholders of the Notes to which such
amendment or supplemental indenture relates a notice setting forth in general
terms the substance of such supplemental indenture. Any failure of the Indenture
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent to
the execution and delivery of such supplemental indenture have been satisfied.
The Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee=s own rights, duties,
liabilities or immunities under this Indenture or otherwise. The Indenture
Trustee shall provide a fully executed copy of any supplemental indentures to
the Swap Counterparty.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance therewith
with respect to the Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer and the Noteholders shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every amendment
of this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. The Class A Notes, the VPTNs and the
Class B Notes are subject to redemption in whole, but not in part, at the
direction of the Servicer pursuant to Section 8.1 of the Sale and Servicing
Agreement, on any Monthly Distribution Date on which the Servicer exercises its
option to purchase the assets of the Issuer pursuant to such Section 8.1, 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, the VPTNs and the Class B Notes are to be
redeemed pursuant to this Section 10.1, 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 for so long as the
Class A Notes and Class B Notes are listed on the Luxembourg Stock Exchange, to
the Luxembourg Stock Exchange) 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, the VPTNs and the
Class B Notes to be redeemed, whereupon all such Class A Notes, VPTNs 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 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, 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);
(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 and;
(v) with respect to the notice provided to the Luxembourg Stock
Exchange, the outstanding principal balance of the Class A Notes and Class B
Notes to be redeemed.
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. If and for so long as any of the Class A Notes
and Class B Notes are listed on the Luxembourg Stock Exchange and the rules of
such stock exchange require, the Indenture Trustee will arrange for a notice of
the redemption and the Redemption Price to be published in an Authorized
Newspaper.
SECTION 10.3 Notes Payable on Redemption Date. The Notes to be
redeemed shall, following notice of redemption as required by Section 10.2,
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, and (ii) an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
this Section 11.1, except that, in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(A) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(B) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(C) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(D) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property
or securities with the Indenture Trustee that is to be made the
basis for the release of any property or securities subject to the
lien of this Indenture, the Issuer shall, in addition to any
obligation imposed in Section 11.1(a) or elsewhere in this
Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within ninety (90)
days of such deposit) to the Issuer of the Collateral or other
property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters described in
clause (i) above, the Issuer shall also deliver to the Indenture
Trustee an Independent Certificate as to the same matters, if the
fair value to the Issuer of the securities to be so deposited and
of all other such securities made the basis of any such withdrawal
or release since the commencement of the then-current fiscal year
of the Issuer, as set forth in the certificates delivered pursuant
to clause (i) above and this clause (ii), is ten percent (10%) or
more of the principal amount of the Notes Outstanding, but such a
certificate need not be furnished with respect to any securities
so deposited, if the fair value thereof to the Issuer as set forth
in the related Officer's Certificate is less than $25,000 or less
than one percent (1%) of the principal amount of the Notes
Outstanding.
(iii) Whenever any property or securities are to be released
from the lien of this Indenture, the Issuer shall also furnish to
the Indenture Trustee an Officer's Certificate certifying or
stating the opinion of each person signing such certificate as to
the fair value (within ninety (90) days of such release) of the
property or securities proposed to be released and stating that in
the opinion of such person the proposed release will not impair
the security under this Indenture in contravention of the
provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters described in
clause (iii) above, the Issuer shall also furnish to the Indenture
Trustee an Independent Certificate as to the same matters if the
fair value of the property or securities and of all other
property, other than property as contemplated by clause (v) below
or securities released from the lien of this Indenture since the
commencement of the then-current calendar year, as set forth in
the certificates required by clause (iii) above and this clause
(iv), equals ten percent (10%) or more of the principal amount of
the Notes Outstanding, but such certificate need not be furnished
in the case of any release of property or securities if the fair
value thereof as set forth in the related Officer's Certificate is
less than $25,000 or less than one percent (1%) of the principal
amount of the Notes Outstanding.
(v) Notwithstanding Section 2.10 or any other provisions of
this Section 11.1, the Issuer may, without compliance with the
requirements of the other provisions of this Section 11.1, (A)
collect, liquidate, sell or otherwise dispose of Receivables and
Financed Vehicles as and to the extent permitted or required by
the Basic Documents and (B) make cash payments out of the Trust
Accounts and the Payahead Account as and to the extent permitted
or required by the Basic Documents.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee. (a)
In any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, the Seller, the Administrator or the
Issuer, stating that the information with respect to such factual matters is in
the possession of the Servicer, the Seller, the Administrator or the Issuer, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or
more applications, requests, comments, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
(d) Whenever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term hereof, it
is intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application granted
or to the sufficiency of such certificate or report. The foregoing shall not,
however, be construed to affect the Indenture Trustee's right to rely upon the
truth and accuracy of any statement or opinion contained in any such document as
provided in Article VI.
SECTION 11.3 Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except as
herein otherwise expressly provided such action shall become effective when such
instrument or instruments are delivered to the Indenture Trustee, and, where it
is hereby expressly required, to the Issuer. Such instrument or instruments (and
the action embodied herein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Noteholder of any Notes shall bind the
Noteholder of every Note issued upon the registration thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered to
be done by the Indenture Trustee or the Issuer in reliance thereon, whether or
not notation of such action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer, Swap
Counterparties 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-F, 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 and each Swap Counterparty. The Indenture Trustee
shall likewise promptly transmit any notice received by it from the
Noteholders to the Issuer and each Swap Counterparty and from any Swap
Counterparty to the Issuer.
Notices required to be given to the Rating Agencies by the Issuer,
any Swap Counterparty, 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, (iii) in
the case of Fitch, Inc., at the following address: Fitch, Inc., 1 State Street
Plaza, New York, New York 10004, Attention: Asset Backed Surveillance and (iv)
in the case of a Swap Counterparty, at the address specified in the related
Interest Rate Swap Agreement.
SECTION 11.5 Notices to Noteholders; Waiver. (a) Where this
Indenture provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
(b) Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
(d) Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute a
Default or Event of Default.
SECTION 11.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Noteholder providing
for a method of payment, or notice by the Indenture Trustee or any Note Paying
Agent to such Noteholder, that is different from the methods provided for in
this Indenture for such payments or notices. The Issuer shall furnish to the
Indenture Trustee a copy of each such agreement and the Indenture Trustee shall
cause payments to be made and notices to be given in accordance with such
agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required or deemed to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required or deemed provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties
on any Person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and agreements
in this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind their successors, co-trustees and agents.
SECTION 11.10 Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Noteholders, the Swap
Counterparties and any other party secured hereunder, and any other Person with
an ownership interest in any part of the Indenture Trust Estate, any benefit or
any legal or equitable right, remedy or claim under this Indenture; provided,
that no Swap Counterparty shall have any right to institute any Proceeding,
judicial or otherwise, with respect to enforcement of remedies under Article V
of this Indenture upon the occurrence of an Event of Default.
SECTION 11.12 Legal Holidays. In any case where the date on which
any payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.13 Governing Law. This Indenture shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions.
SECTION 11.14 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject
to recording in any appropriate public recording offices, such recording is to
be effected by the Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Indenture Trustee or any other counsel
reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any other
Person secured hereunder or for the enforcement of any right or remedy granted
to the Indenture Trustee under this Indenture.
SECTION 11.16 Trust Obligation. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under this Indenture or any certificate
or other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in their individual capacities, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director, employee or agent of the Indenture
Trustee or the Owner Trustee in their individual capacities, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or
of any successor or assign of the Indenture Trustee or the Owner Trustee in
their individual capacities, except as any such Person may have expressly agreed
(it being understood that the Indenture Trustee and the Owner Trustee have no
such obligations in their individual capacities), and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity. For
all purposes of this Indenture, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Article VI, VII and VIII of the
Trust Agreement.
SECTION 11.17 No Petition. The Indenture Trustee, by entering into
this Indenture, and each Noteholder or Note Owner, by accepting a Note or, in
the case of a Note Owner, a beneficial interest in a Note, hereby covenant and
agree that they will not at any time institute against the Seller, the General
Partner or the Issuer, or join in any institution against the Seller, the
General Partner or the Issuer of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or State bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture or any of the other Basic
Documents.
SECTION 11.18 Inspection. The Issuer agrees that, with reasonable
prior notice, it will permit any representative of the Indenture Trustee, during
the Issuer's normal business hours, to examine all the books of account,
records, reports and other papers of the Issuer, to make copies and extracts
therefrom, to cause such books to be audited by Independent certified public
accountants, and to discuss the Issuer's affairs, finances and accounts with the
Issuer's officers, employees, and Independent certified public accountants, all
at such reasonable times and as often as may be reasonably requested. The
Indenture Trustee shall and shall cause its representatives to hold in
confidence all such information except to the extent disclosure may be required
by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.
<PAGE>
IN WITNESS WHEREOF, each of the Issuer and the Indenture Trustee
has caused this Indenture to be duly executed by its respective officers,
thereunto duly authorized, all as of the day and year first above written.
FORD CREDIT AUTO OWNER TRUST 2000-F
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee of Ford Credit
Auto Owner Trust 2000-F
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as
Indenture Trustee
By:
Name:
Title:
<PAGE>
A-1-1
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 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 $906,000,000
No. R-1 CUSIP NO. 34527RER0
FORD CREDIT AUTO OWNER TRUST 2000-F
CLASS A-1 FLOATING RATE ASSET BACKED NOTES
<PAGE>
A-1-2
Ford Credit Auto Owner Trust 2000-F, 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 SIX MILLION DOLLARS
payable on each Quarterly Payment Date (as defined below), except as described
herein, in an amount equal to the aggregate amount, if any, payable to
Noteholders of Class A-1 Notes on such Quarterly Payment Date in respect of
principal on the Class A-1 Notes pursuant to the Indenture dated as of October
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 principal amount of this Note
shall be payable on the October 2002 Monthly Distribution Date (the "Targeted
Scheduled Distribution Date") to the extent of funds available therefor pursuant
to the Indenture and the entire unpaid principal amount of this Note shall be
due and payable on the earlier to occur of the August 2003 Monthly Distribution
Date (the "Class A-1 Final Scheduled Distribution Date") and the Redemption
Date, if any, pursuant to Section 10.1 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.
Except as described below, the Issuer shall pay interest on
this Note on the fifteenth day of each January, April, July and October, or, if
any such day is not a Business Day, the next succeeding Business Day (each, a
"Quarterly Payment Date"), commencing January 15, 2001 at a per annum rate equal
to the London interbank offered rate ("LIBOR") for three-month U.S. Dollar
deposits in Europe (determined as set forth in the Indenture) on the LIBOR
Determination Date, in each case plus 0.06% on the principal amount of this Note
outstanding on the preceding Quarterly Payment Date after giving effect to all
payments of principal made on the preceding Quarterly Payment Date (provided,
however, that interest shall accrue from the Closing Date to the initial
Quarterly Payment Date, and shall be payable on the initial Quarterly Payment
Date, at a per annum rate equal to [ ]% on the principal amount outstanding on
the Closing Date), subject to certain limitations contained in Section 3.1 of
the Indenture, until the principal of this Note is paid or made available for
payment. Except as provided below, interest on this Note will accrue for each
Quarterly Payment Date from and including the preceding Quarterly Payment Date
(or, in the case of the initial Quarterly Payment Date, from and including the
Closing Date) to but excluding such Quarterly Payment Date. Interest will be
computed on the basis of actual days elapsed and a 360-day year. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse side hereof.
If (i) this Note is not paid in full on its Targeted Scheduled
Distribution Date, (ii) with respect to any Monthly Distribution Date, an Early
Amortization Event (as such term is defined in the Indenture) has occurred prior
to the related LIBOR Determination Date or (iii) this Note is accelerated due to
an Event of Default (as such term in defined in the Indenture), beginning on the
next Monthly Distribution Date, the frequency of payments will change and the
Issuer shall pay interest on this Note on each Monthly Distribution Date.
Beginning on the first Monthly Distribution Date following such event, interest
will accrue at a rate equal to LIBOR for one-month U.S. Dollar deposits in
Europe (determined as set forth in the Indenture) on the related Determination
Date plus 0.06% on the principal amount of this Note outstanding as of the
preceding Monthly Distribution Date upon which interest was paid after giving
effect to all payments of principal made on such Monthly Distribution Date from
and including the preceding Monthly Distribution Date to but excluding such
Monthly Distribution Date, subject to certain limitations contained in Section
3.1 of the Indenture, until the principal of the Note is paid or made available
for payment. Interest will be computed on the basis of actual days elapsed and a
360-day year. "Monthly 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 November 15, 2000.
<PAGE>
A-1-3
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: October 26, 2000
FORD CREDIT AUTO OWNER TRUST 2000-F
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee of Ford Credit
Auto Owner Trust 2000-F
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: October 26, 2000
THE CHASE MANHATTAN BANK, not in its
individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
<PAGE>
A-1-6
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-1 Floating Rate Asset Backed Notes (the "Class
A-1 Notes") which, together with the Issuer's Class A-2 6.56% Asset Backed Notes
(the "Class A-2 Notes"), Class A-3 6.58% Asset Backed Notes (the "Class A-3
Notes"), Class A-4 Floating Rate Asset Backed Notes (the "Class A-4 Notes"),
Class A-5 Floating Rate Asset Backed Notes (the "Class A-5 Notes" and, together
with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class
A-4 Notes, the "Class A Notes"), the Floating Rate Asset Backed Variable Pay
Term Notes to be issued by the Issuer from time to time (the "VPTNs") and Class
B 7.00% Asset Backed Notes (the "Class B Notes" and, together with the Class A
Notes and the VPTNs, 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 the 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.
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 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 A-1 Notes shall be made pro rata to the Noteholders
entitled thereto.
<PAGE>
Payments of interest on this Note on each Quarterly Payment
Date or Monthly Distribution Date, as applicable, 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 Quarterly Payment Date or Monthly 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
Monthly 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 Monthly
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 Monthly Distribution Date by notice mailed or
transmitted by facsimile prior to such Monthly 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 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.
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 of $1,000 and integral multiples thereof 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>
A-2-1
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 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 $701,000,000
No. R-1 CUSIP NO. 34527RES8
FORD CREDIT AUTO OWNER TRUST 2000-F
CLASS A-2 6.56% ASSET BACKED NOTES
<PAGE>
Ford Credit Auto Owner Trust 2000-F, 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 SEVEN HUNDRED ONE MILLION DOLLARS
payable on each Monthly Distribution Date in an amount equal to the aggregate
amount, if any, payable to Noteholders of Class A-2 Notes on such Monthly
Distribution Date in respect of principal on the Class A-2 Notes pursuant to the
Indenture dated as of October 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 principal amount of this Note shall be payable on the April 2003 Monthly
Distribution Date (the "Targeted Scheduled Distribution Date") to the extent of
funds available therefor pursuant to the Indenture and the entire unpaid
principal amount of this Note shall be due and payable on the earlier to occur
of the May 2004 Monthly Distribution Date (the "Class A-2 Final Scheduled
Distribution Date") and the Redemption Date, if any, pursuant to Section 10.1 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 Monthly 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 Monthly Distribution Date (after giving effect to
all payments of principal made on the preceding Monthly Distribution Date),
subject to certain limitations contained in Section 3.1 of the Indenture.
Interest on this Note will accrue for each Monthly Distribution Date from and
including the fifteenth day of the calendar month immediately preceding such
Monthly Distribution Date (or, in the case of the initial Monthly 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. "Monthly 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 November 15, 2000.
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: October 26, 2000
FORD CREDIT AUTO OWNER TRUST 2000-F
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee of Ford Credit
Auto Owner Trust 2000-F
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: October 26, 2000
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
<PAGE>
A-2-5
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-2 6.56% Asset Backed Notes (the "Class A-2
Notes") which, together with the Issuer's Class A-1 Floating Rate Asset Backed
Notes (the "Class A-1 Notes"), Class A-3 6.58% Asset Backed Notes (the "Class
A-3 Notes"), Class A-4 Floating Rate Asset Backed Notes (the "Class A-4 Notes"),
Class A-5 Floating Rate Asset Backed Notes (the "Class A-5 Notes" and, together
with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class
A-4 Notes, the "Class A Notes"), the Floating Rate Asset Backed Variable Pay
Term Notes to be issued by the Issuer from time to time (the "VPTNs") and Class
B 7.00% Asset Backed Notes (the "Class B Notes" and, together with the Class A
Notes and the VPTNs, 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 the 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.
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 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 A-2 Notes shall be made pro rata to the Noteholders
entitled thereto.
<PAGE>
Payments of interest on this Note on each Monthly 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 Monthly 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
Monthly 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 Monthly
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 Monthly Distribution Date by notice mailed or
transmitted by facsimile prior to such Monthly Distribution Date, and the amount
then due and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal Corporate Trust Office or at the
office of the Indenture Trustee's agent appointed for such purposes located in
The City of New York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-2 Rate to the extent lawful.
As provided in the Indenture, the 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.
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 of $1,000 and integral multiples thereof 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>
A-3-1
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 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 $520,000,000
No. R-1 CUSIP NO. 34527RET6
FORD CREDIT AUTO OWNER TRUST 2000-F
CLASS A-3 6.58% ASSET BACKED NOTES
<PAGE>
Ford Credit Auto Owner Trust 2000-F, 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 FIVE HUNDRED TWENTY MILLION DOLLARS
payable on each Monthly Distribution Date in an amount equal to the aggregate
amount, if any, payable to Noteholders of Class A-3 Notes on such Monthly
Distribution Date in respect of principal on the Class A-3 Notes pursuant to the
Indenture dated as of October 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 principal amount of this Note shall be payable on the October 2003
Distribution Date (the "Targeted Scheduled Distribution Date") to the extent of
funds available therefor pursuant to the Indenture and the entire unpaid
principal amount of this Note shall be due and payable on the earlier to occur
of the November 2004 Monthly Distribution Date (the "Class A-3 Final Scheduled
Distribution Date") and the Redemption Date, if any, pursuant to Section 10.1 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 Monthly 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 Monthly Distribution Date (after giving effect to
all payments of principal made on the preceding Monthly Distribution Date),
subject to certain limitations contained in Section 3.1 of the Indenture.
Interest on this Note will accrue for each Monthly Distribution Date from and
including the fifteenth day of the calendar month immediately preceding such
Monthly Distribution Date (or, in the case of the initial Monthly 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. "Monthly 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 November 15, 2000.
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: October 26, 2000
FORD CREDIT AUTO OWNER TRUST 2000-F
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee of Ford Credit
Auto Owner Trust 2000-F
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: October 26, 2000
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
<PAGE>
A-3-5
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-3 6.58% Asset Backed Notes (the "Class A-3
Notes") which, together with the Issuer's Class A-1 Floating Rate Asset Backed
Notes (the "Class A-1 Notes"), Class A-2 6.56% Asset Backed Notes (the "Class
A-2 Notes"), Class A-4 Floating Rate Asset Backed Notes (the "Class A-4 Notes"),
Class A-5 Floating Rate Asset Backed Notes (the "Class A-5 Notes" and, together
with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class
A-4 Notes, the "Class A Notes"), the Floating Rate Asset Backed Variable Pay
Term Notes to be issued by the Issuer from time to time (the "VPTNs") and Class
B 7.00% Asset Backed Notes (the "Class B Notes" and, together with the Class A
Notes and the VPTNs, 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 the 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.
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 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 A-3 Notes shall be made pro rata to the Noteholders
entitled thereto.
<PAGE>
Payments of interest on this Note on each Monthly 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 Monthly 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
Monthly 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 Monthly
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 Monthly Distribution Date by notice mailed or
transmitted by facsimile prior to such Monthly Distribution Date, and the amount
then due and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal Corporate Trust Office or at the
office of the Indenture Trustee's agent appointed for such purposes located in
The City of New York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-3 Rate to the extent lawful.
As provided in the Indenture, the 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.
<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 of $1,000 and integral multiples thereof 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>
A-4-1
EXHIBIT A-4
[FORM OF CLASS A-4 NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE 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 $343,000,000
No. R-1 CUSIP NO. 34527REV3
FORD CREDIT AUTO OWNER TRUST 2000-F
CLASS A-4 FLOATING RATE ASSET BACKED NOTES
<PAGE>
Ford Credit Auto Owner Trust 2000-F, 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 FORTY-THREE MILLION
DOLLARS payable on each Quarterly Payment Date (as defined below), except as
described herein, in an amount equal to the aggregate amount, if any, payable to
Noteholders of Class A-4 Notes on such Quarterly Payment Date in respect of
principal on the Class A-4 Notes pursuant to the Indenture dated as of October
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 principal amount of this Note
shall be payable on the April 2004 Monthly Distribution Date (the "Targeted
Scheduled Distribution Date") to the extent of funds available therefor pursuant
to the Indenture and the entire unpaid principal amount of this Note shall be
due and payable on the May 2005 Monthly Distribution Date (the "Class A-4 Final
Scheduled Distribution Date") and the Redemption Date, if any, pursuant to
Section 10.1 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.
Except as described below, the Issuer shall pay interest on
this Note on the fifteenth day of each January, April, July and October, or, if
any such day is not a Business Day, the next succeeding Business Day (each, a
"Quarterly Payment Date"), commencing January 15, 2001 at a per annum rate equal
to the London interbank offered rate ("LIBOR") for three-month U.S. Dollar
deposits in Europe (determined as set forth in the Indenture) on the LIBOR
Determination Date, in each case plus 0.10% on the principal amount of this Note
outstanding on the preceding Quarterly Payment Date after giving effect to all
payments of principal made on the preceding Quarterly Payment Date (provided,
however that interest shall accrue from the Closing Date to the initial
Quarterly Payment Date, at a per annum rate equal to [ ]% on the principal
amount outstanding on the Closing Date) subject to certain limitations contained
in Section 3.1 of the Indenture, until the principal of this Note is paid or
made available for payment. Except as provided below, interest on this Note will
accrue for each Quarterly Payment Date from and including the preceding
Quarterly Payment Date (or, in the case of the initial Quarterly Payment Date,
from and including the Closing Date) to but excluding such Quarterly Payment
Date. Interest will be computed on the basis of actual days elapsed and a
360-day year. Such principal of and interest on this Note shall be paid in the
manner specified on the reverse side hereof.
If (i) this Note is not paid in full on its Targeted Scheduled
Distribution Date, (ii) with respect to any Monthly Distribution Date, an Early
Amortization Event (as such term is defined in the Indenture) has occurred prior
to the related LIBOR Determination Date or (iii) this Note is accelerated due to
an Event of Default (as such term in defined in the Indenture), beginning on the
next Monthly Distribution Date, the frequency of payments will change and the
Issuer shall pay interest on this Note on each Monthly Distribution Date.
Beginning on the first Monthly Distribution Date following such event, interest
will accrue at a rate equal to LIBOR for one-month U.S. Dollar deposits in
Europe (determined as set forth in the Indenture) on the related Determination
Date plus 0.10% on the principal amount of this Note outstanding as of the
preceding Monthly Distribution Date upon which interest was paid after giving
effect to all payments of principal made on such Monthly Distribution Date from
and including the preceding Monthly Distribution Date to but excludiong such
Monthly Distribution Date, subject to certain limitations contained in Section
3.1 of the Indenture, until the principal of the Note is paid or made available
for payment. Interest will be computed on the basis of actual days elapsed and a
360-day year. "Monthly 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 November 15, 2000.
<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.
<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: October 26, 2000
FORD CREDIT AUTO OWNER TRUST 2000-F
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee of Ford Credit
Auto Owner Trust 2000-F
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: October 26, 2000
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
<PAGE>
A-4-6
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-4 Floating Rate Asset Backed Notes (the "Class
A-4 Notes") which, together with the Issuer's Class A-1 Floating Rate Asset
Backed Notes (the "Class A-1 Notes"), Class A-2 6.56% Asset Backed Notes (the
"Class A-2 Notes"), Class A-3 6.58% Asset Backed Notes (the "Class A-3 Notes"),
Class A-5 Floating Rate Asset Backed Notes (the "Class A-5 Notes" and, together
with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class
A-4 Notes, the "Class A Notes"), the Floating Rate Asset Backed Variable Pay
Term Notes to be issued by the Issuer from time to time (the "VPTNs") and Class
B 7.00% Asset Backed Notes (the "Class B Notes" and, together with the Class A
Notes and the VPTNs, 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 the 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.
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 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 A-4 Notes shall be made pro rata to the Noteholders
entitled thereto.
<PAGE>
Payments of interest on this Note on each Quarterly Payment
Date or Monthly Distribution Date, as applicable, 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 Quarterly Payment Date or Monthly 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
Monthly 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 Monthly
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 Monthly Distribution Date by notice mailed or
transmitted by facsimile prior to such Monthly Distribution Date, and the amount
then due and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal Corporate Trust Office or at the
office of the Indenture Trustee's agent appointed for such purposes located in
The City of New York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-4 Rate to the extent lawful.
As provided in the Indenture, the 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.
<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 of $1,000 and integral multiples thereof 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>
A-5-1
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 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 $159,722,000
No. R-1 CUSIP NO. 34527REV1
FORD CREDIT AUTO OWNER TRUST 2000-F
CLASS A-5 FLOATING RATE ASSET BACKED NOTES
<PAGE>
Ford Credit Auto Owner Trust 2000-F, 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 FIFTY-NINE MILLION SEVEN
HUNDRED TWENTY-TWO THOUSAND DOLLARS payable on each Quarterly Payment Date (as
defined below), except as described herein, in an amount equal to the aggregate
amount, if any, payable to Noteholders of Class A-1 Notes on such Quarterly
Payment Date in respect of principal on the Class A-5 Notes pursuant to the
Indenture dated as of October 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 principal amount of this Note shall be payable on the October 2003
Distribution Date (the "Targeted Scheduled Distribution Date") to the extent of
funds available therefor pursuant to the Indenture and the entire unpaid
principal amount of this Note shall be due and payable on the October 2005
Monthly Distribution Date (the "Class A-5 Final Scheduled Distribution Date")
and the Redemption Date, if any, pursuant to Section 10.1 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.
Except as described below, the Issuer shall pay interest on
this Note on the fifteenth day of each January, April, July and October, or, if
any such day is not a Business Day, the next succeeding Business Day (each, a
"Quarterly Payment Date"), commencing January 15, 2001 at a per annum rate equal
to the London interbank offered rate ("LIBOR") for three-month U.S. Dollar
deposits in Europe (determined as set forth in the Indenture) on the LIBOR
Determination Date, in each case plus 0.12% on the principal amount of this Note
outstanding on the preceding Quarterly Payment Date after giving effect to all
payments of principal made on the preceding Quarterly Payment Date(provided,
however, that interest shall accrue from the Closing Date to the initial
Quarterly Payment Date, at a per annum rate equal to [ ]% on the principal
amount outstanding on the Closing Date) subject to certain limitations contained
in Section 3.1 of the Indenture, until the principal of this Note is paid or
made available for payment. Except as provided below, interest on this Note will
accrue for each Quarterly Payment Date from and including the preceding
Quarterly Payment Date (or, in the case of the initial Quarterly Payment Date,
from and including the Closing Date) to but excluding such Quarterly Payment
Date. Interest will be computed on the basis of actual days elapsed and a
360-day year. Such principal of and interest on this Note shall be paid in the
manner specified on the reverse side hereof.
If (i) this Note is not paid in full on its Targeted Scheduled
Distribution Date, (ii) with respect to any Monthly Distribution Date, an Early
Amortization Event (as such term is defined in the Indenture) has occurred prior
to the related LIBOR Determination Date or (iii) this Note is accelerated due to
an Event of Default (as such term in defined in the Indenture), beginning on the
next Monthly Distribution Date, the frequency of payments will change and the
Issuer shall pay interest on this Note on each Monthly Distribution Date.
Beginning on the first Monthly Distribution Date following such event, interest
will accrue at a rate equal to LIBOR for one-month U.S. Dollar deposits in
Europe (determined as set forth in the Indenture) on the related Determination
Date plus 0.12% on the principal amount of this Note outstanding as of the
preceding Monthly Distribution Date upon which interest was paid after giving
effect to all payments of principal made on such Monthly Distribution Date from
and including the preceding Monthly Distribution Date to but excluding such
Monthly Distribution Date, subject to certain limitations contained in Section
3.1 of the Indenture, until the principal of the Note is paid or made available
for payment. Interest will be computed on the basis of actual days elapsed and a
360-day year. "Monthly 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 November 15, 2000.
<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: October 26, 2000
FORD CREDIT AUTO OWNER TRUST 2000-F
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee of Ford Credit
Auto Owner Trust 2000-F
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: October 26, 2000
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
<PAGE>
A-5-5
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class A-5 Floating Rate Asset Backed Notes (the "Class
A-5 Notes") which, together with the Issuer's Class A-1 Floating Rate Asset
Backed Notes (the "Class A-1 Notes"), Class A-2 6.56% Asset Backed Notes (the
"Class A-2 Notes"), Class A-3 6.58% Asset Backed Notes (the "Class A-3 Notes"),
Class A-4 Floating Rate Asset Backed Notes (the "Class A-4 Notes" and, together
with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class
A-5 Notes, the "Class A Notes"), the Floating Rate Asset Backed Variable Pay
Term Notes to be issued by the Issuer from time to time (the "VPTNs") and Class
B 7.00% Asset Backed Notes (the "Class B Notes" and, together with the Class A
Notes and the VPTNs, 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 the 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.
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 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 A-5 Notes shall be made pro rata to the
Noteholders entitled thereto.
<PAGE>
Payments of interest on this Note on each Quarterly Payment
Date or Monthly Distribution Date, as applicable, 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 Quarterly Payment Date or Monthly 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
Monthly 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 Monthly
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 Monthly Distribution Date by notice mailed or
transmitted by facsimile prior to such Monthly Distribution Date, and the amount
then due and payable shall be payable only upon presentation and surrender of
this Note at the Indenture Trustee's principal Corporate Trust Office or at the
office of the Indenture Trustee's agent appointed for such purposes located in
The City of New York.
The Issuer shall pay interest on overdue installments of
interest at the Class A-5 Rate to the extent lawful.
As provided in the Indenture, the 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.
<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 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 of $1,000 and integral multiples thereof 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.
<PAGE>
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>
B-1
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 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 $97,397,000
No. R-1 CUSIP NO. 34527REW9
FORD CREDIT AUTO OWNER TRUST 2000-F
CLASS B 7.00% ASSET BACKED NOTES
<PAGE>
Ford Credit Auto Owner Trust 2000-F, 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-SEVEN MILLION THREE HUNDRED
NINETY-SEVEN THOUSAND DOLLARS payable on each Monthly Distribution Date in an
amount equal to the aggregate amount, if any, payable to Noteholders of Class B
Notes on such Monthly Distribution Date in respect of principal on the Class B
Notes pursuant to the Indenture dated as of October 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 March 2006 Monthly Distribution Date (the
"Class B Final Scheduled Distribution Date") and the Redemption Date, if any,
pursuant to Section 10.1 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 Monthly 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 Monthly Distribution Date (after giving effect to
all payments of principal made on the preceding Monthly Distribution Date),
subject to certain limitations contained in Section 3.1 of the Indenture.
Interest on this Note will accrue for each Monthly Distribution Date from and
including the fifteenth day of the calendar month immediately preceding such
Monthly Distribution Date (or, in the case of the initial Monthly 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. "Monthly 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 November 15, 2000.
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: October 26, 2000
FORD CREDIT AUTO OWNER TRUST 2000-F
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee of Ford Credit
Auto Owner Trust 2000-F
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: October 26, 2000
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
<PAGE>
B-4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its Class B 7.00% Asset Backed Notes (the "Class B Notes"
and, together with the Class A Notes and VPTNs referred to below, the "Notes")
which, together with the Issuer's Class A-1 Floating Rate Asset Backed Notes
(the "Class A-1 Notes"), Class A-2 6.56% Asset Backed Notes (the "Class A-2
Notes"), Class A-3 6.58% Asset Backed Notes (the "Class A-3 Notes"), Class A-4
Floating Rate Asset Backed Notes (the "Class A-4 Notes") and Class A-5 Floating
Rate Asset Backed Notes (the "Class A-5 Notes" and, together with the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, the
"Class A Notes") and the Floating Rate Asset Backed Variable Pay Term Notes to
be issued by the Issuer from time to time (the "VPTNs"), 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 the 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
holder of this Class B Note acknowledges and agrees that its rights to receive
payments in respect of this Note are subordinated to the rights of the Class A
Noteholders, the VPTN Noteholders and the Swap Counterparty as described in the
Sale and Servicing Agreement and Indenture.
Principal of the Class B Notes will be payable on each Monthly
Distribution Date in an amount described on the face hereof.
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 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 Monthly 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 Monthly 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
Monthly 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 Monthly
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 Monthly Distribution Date by notice mailed or
transmitted by facsimile prior to such Monthly 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 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.
<PAGE>
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 of $1,000 and integral multiples thereof 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.
<PAGE>
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 VPTN
[FORM OF VARIABLE PAY TERM NOTE]
THIS VARIABLE PAY TERM NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF,
BY PURCHASING THIS VARIABLE PAY TERM NOTE, AGREES THAT THIS VARIABLE PAY TERM
NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, AND ONLY (1)
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT
THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE
MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE, PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), SUBJECT TO THE RECEIPT BY THE INDENTURE TRUSTEE
AND THE VARIABLE PAY TERM NOTE REGISTRAR OF SUCH EVIDENCE ACCEPTABLE TO THE
INDENTURE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, (3) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO ANY OTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RECEIPT
BY THE INDENTURE TRUSTEE AND THE NOTE REGISTRAR OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE INDENTURE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, OR
(4) TO THE SELLER OR ITS AFFILIATES, IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS
OF THE STATES OF THE UNITED STATES.
THE PRINCIPAL OF THIS VARIABLE PAY TERM NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS VARIABLE PAY
TERM NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
<PAGE>
No. R-[___] $[ ]
CUSIP NO. [ ]
FORD CREDIT AUTO OWNER TRUST 2000-F
FLOATING RATE ASSET BACKED VARIABLE PAY TERM NOTE
Ford Credit Auto Owner Trust 2000-F, 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 [__________],
or registered assigns, the principal sum of [_________] MILLION DOLLARS payable
on each Monthly Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction, the numerator of which is [__________] (the original
face amount of this Note) and the denominator of which is [__________] (the
aggregate principal amount of the VPTN on the original issuance date of this
VPTN) by (ii) the aggregate amount, if any, payable to the VPTNs issued on the
original issuance date of this VPTN in respect of principal pursuant to the
Indenture dated as of October 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, the
entire unpaid principal amount of this Note shall be due and payable on the
October 2005 Monthly Distribution Date (the "VPTN Final Scheduled Distribution
Date") and the Redemption Date, if any, pursuant to Section 10.1 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 VPTN on each Monthly
Distribution Date at a rate equal to one-month LIBOR on the related LIBOR
Determination Date (as defined in the Indenture) plus [___]%. Interest on this
VPTN will accrue, in the case of the first Monthly Distribution Date following
the issuance of the VPTN, the period from and including the issuance date to and
excluding such Monthly Distribution Date and for any other Monthly Distribution
Date, the period from and including the most recent Monthly Distribution Date to
but excluding such Monthly 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 VPTN shall be paid in the manner specified on the reverse hereof.
"Monthly 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 [
].
The principal of and interest on this VPTN 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 VPTN shall be applied first to interest due and
payable on this VPTN as provided above and then to the unpaid principal of this
VPTN.
<PAGE>
Reference is made to the further provisions of this VPTN set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this VPTN.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this VPTN 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: October 26, 2000
FORD CREDIT AUTO OWNER TRUST 2000-F
By: THE BANK OF NEW YORK,
not in its individual capacity but
solely as Owner Trustee of Ford Credit
Auto Owner Trust 2000-F
By:
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the VPTNs designated above and referred to in the
within-mentioned Indenture.
Date: October 26, 2000
THE CHASE MANHATTAN BANK,
not in its individual capacity but
solely as Indenture Trustee
By:
Authorized Officer
<PAGE>
VPTN-5
[REVERSE OF NOTE]
This VPTN is one of a duly authorized issue of VPTNs of the
Issuer, designated as its Floating Rate Asset Backed Variable Pay Term Notes
(the "VPTNs") which, together with the Issuer's Class A-1 Floating Rate Asset
Backed Notes (the "Class A-1 Notes"), Class A-2 6.56% Asset Backed Notes (the
"Class A-2 Notes"), Class A-3 6.58% Asset Backed Notes (the "Class A-3 Notes"),
Class A-4 Floating Rate Asset Backed Notes (the "Class A-4 Notes") and Class A-5
Floating Rate Asset Backed Notes (the "Class A-5 Notes" and, together with the
Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4
Notes, the "Class A Notes"), the Floating Rate Asset Backed Variable Pay Term
Notes to be issued by the Issuer from time to time (the "VPTNs") and Class B
7.00% Asset Backed Notes (the "Class B Notes" and, together with the Class A
Notes and the VPTNs, 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 VPTNs are subject to all the terms of
the Indenture.
The VPTNs are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture.
As described on the face hereof, the entire unpaid principal
amount of this VPTN shall be due and payable on the VPTN Final Scheduled
Distribution Date. Notwithstanding the foregoing, the entire unpaid principal
amount of the VPTNs 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 VPTNs shall be made sequentially, such that no payments of
principal on a VPTN shall be payable until all earlier issued VPTNs have been
paid in full.
<PAGE>
Payments of interest on this VPTN on each Monthly Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this VPTN, shall be made to the Person whose name appears as the
Registered Noteholder of the VPTN 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 Monthly 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. Such payments will be made without
requiring that this VPTN be submitted for notation of payment. Any reduction in
the principal amount of this VPTN effected by any payments made on any Monthly
Distribution Date shall be binding upon all future Noteholders of this VPTN and
of any VPTN 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 VPTN 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 Monthly Distribution Date by notice mailed or transmitted by facsimile
prior to such Monthly Distribution Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this VPTN 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 VPTN Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed, in
whole but not in part, in the manner and to the extent described in the
Indenture and the Sale and Servicing Agreement.
As provided in the Indenture, and subject to the restrictions
on transfer set forth in the legend on the face of this VPTN and in the
Indenture, the transfer of this VPTN may be registered on the Note Register upon
surrender of this VPTN 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 VPTNs 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 VPTN, 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, by its acceptance of a VPTN 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
VPTNs 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, by acceptance of a VPTN covenants and agrees
by accepting the benefits of the Indenture that such Noteholder 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 VPTN is
issued with the intention that, for federal, State and local income, and
franchise tax purposes, the VPTNs will qualify as indebtedness of the Issuer
secured by the Indenture Trust Estate. Each Noteholder, by its acceptance of a
VPTN, will be deemed to agree to treat the VPTNs 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 VPTN, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this VPTN (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 VPTN 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 adversely affected) the amendment thereof by the
Issuer and the Indenture Trustee without the consent of the Noteholders provided
certain conditions are satisfied. The Indenture also contains provisions
permitting the Noteholders of VPTNs 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 VPTN
shall be conclusive and binding upon such Noteholder and upon all future
Noteholders of this VPTN and of any VPTN 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 VPTN.
The term "Issuer", as used in this VPTN, includes any
successor to the Issuer under the Indenture.
<PAGE>
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 VPTNs are issuable only in registered form in
denominations of $100,000 and integral multiples of $1,000 thereof as provided
in the Indenture, subject to certain limitations therein set forth.
This VPTN 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
VPTN 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 VPTN 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 VPTN or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Noteholder of this VPTN, 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
VPTN.
<PAGE>
ASSIGNMENT
Social Security Number 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 VPTN and all rights thereunder, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said VPTN 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 VPTN 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.
<PAGE>
C-1
Exhibit C
[FORM OF NOTE DEPOSITORY AGREEMENT]
<PAGE>
D-1
Exhibit D
FORM OF INVESTMENT LETTER - VPTNs
QUALIFIED INSTITUTIONAL BUYER
[Date]
Ford Credit Auto Owner Trust 2000-F
as Issuer
The Chase Manhattan Bank
as Indenture Trustee and
Note Registrar
450 West 33rd Street
New York, New York 10001
Re: Ford Credit Auto Owner Trust 2000-F
Floating Rate Asset Backed Variable Pay Term Notes
Ladies and Gentlemen:
In connection with our proposed purchase of the Floating Asset Backed
Variable Pay Term Note (the "VPTN") of Ford Credit Auto Owner Trust 2000-F (the
"Issuer"), a trust formed by Ford Credit Auto Receivables Two L.P. (the
"Seller"), we confirm that:
1. The undersigned agrees to be bound by, and not to resell, transfer,
assign, participate, pledge or otherwise dispose of (any such act, a "Transfer")
the VPTN except in compliance with, the restrictions and conditions set forth in
the legend on the face of the VPTN and under the Securities Act of 1933, as
amended (the "Securities Act").
2. We understand that no subsequent Transfer of the VPTN is permitted
unless we cause our proposed transferee to provide to the Issuer and the Note
Registrar a letter substantially in the form of this letter or Exhibit D to the
Indenture, as applicable, or such other written statement as the Seller shall
prescribe.
3. We are a "qualified institutional buyer" (within the meaning of Rule
144A under the Securities Act) (a "QIB") and we are acquiring the VPTN for our
own account or for a single account (which is a QIB) as to which we exercise
sole investment discretion.
<PAGE>
4. We understand that any purported Transfer of any VPTN (or any
interest therein) in contravention of the restrictions and conditions above will
be null and void (each, a "Void Transfer"), and the purported transferee in a
Void Transfer will not be recognized by the Issuer or any other person as a VPTN
Noteholder for any purpose.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By: ______________________________
Name:
Title:
Securities To Be Purchased:
$ principal amount VPTN
<PAGE>
E-1
Exhibit E
FORM OF INVESTMENT LETTER - VPTNs
INSTITUTIONAL ACCREDITED INVESTOR
[Date]
Ford Credit Auto Owner Trust 2000-F
as Issuer
The Chase Manhattan Bank
as Indenture Trustee and
Note Registrar
450 West 33rd Street
New York, New York 10001
Re: Ford Credit Auto Owner Trust 2000-F
Floating Rate Asset Backed Variable Pay Term Notes
Ladies and Gentlemen:
In connection with our proposed purchase of the Floating Asset Backed
Variable Pay Term Note (the "VPTN") of Ford Credit Auto Owner Trust 2000-F (the
"Issuer"), a trust formed by Ford Credit Auto Receivables Two L.P. (the
"Seller"), we confirm that:
1. The undersigned agrees to be bound by, and not to resell,
transfer, assign, participate, pledge or otherwise dispose of (any such
act, a "Transfer") the VPTN except in compliance with, the restrictions
and conditions set forth in the legend on the face of the VPTN and
under the Securities Act of 1933, as amended (the "Securities Act").
2. We understand that no subsequent Transfer of the VPTN is
permitted unless we cause our proposed transferee to provide to the
Issuer and the Note Registrar a letter substantially in the form of
this letter or Exhibit C to the Indenture, as applicable, or such other
written statement as the Issuer shall prescribe.
3. We are a "qualified institutional buyer" (within the
meaning of Rule 144A under the Securities Act) (a "QIB") and we are
acquiring the VPTN for our own account or for a single account (which
is a QIB) as to which we exercise sole investment discretion.
<PAGE>
4. We understand that any purported Transfer of any VPTN (or
any interest therein) in contravention of the restrictions and
conditions above will be null and void (each, a "Void Transfer"), and
the purported transferee in a Void Transfer will not be recognized by
the Issuer or any other person as a VPTN Noteholder for any purpose.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By: ____________________________
Name:
Title:
Securities To Be Purchased:
$ principal amount of VPTN
<PAGE>
F-1
Exhibit F
FORM OF RULE 144A TRANSFEROR
CERTIFICATE B VPTN
[Date]
The Chase Manhattan Bank
as Indenture Trustee and
Note Registrar
450 West 33rd Street
New York, New York 10001
Re: Ford Credit Auto Owner Trust 2000-F
Floating Rate Asset Backed Variable Pay Term Notes
Ladies and Gentlemen:
This is to notify you as to the transfer of $ [*] in denomination
Floating Rate Asset Backed Variable Pay Term Note (the "VPTN") of Ford Credit
Auto Owner Trust 2000-F (the "Issuer").
The undersigned is the holder of the VPTN and with this notice hereby
deposits with the Indenture Trustee $[*] in denomination VPTN and requests that
a VPTN of the same class in the same aggregate denomination be issued, executed
and authenticated and registered to the purchaser on ___________, 200[], as
specified in the Indenture dated as of October 1, 2000 relating to the VPTNs, as
follows:
Name: Denominations:
Address:
Taxpayer I.D. No:
<PAGE>
The undersigned represents and warrants that the undersigned (i)
reasonably believes the purchaser is a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act of 1933 (the "Act"), (ii) such
purchaser has acquired the VPTN in a transaction effected in accordance with the
exemption from the registration requirements of the Act provided by Rule 144A,
(iii) if the purchaser has purchased the VPTN for an account for which it is
acting as fiduciary or agent, such account is a qualified institutional buyer
and (iv) the purchaser is acquiring VPTN for its own account or for an
institutional account for which it is acting as fiduciary or agent.
Very truly yours,
[NAME OF VPTN HOLDER]
By: ________________________
Name:
Title:
[*] authorized denomination
<PAGE>
SCHEDULE A
Schedule of Receivables
[Provided to the Indenture Trustee at the Closing]
