INDENTURE

INDENTURE

between

FORD CREDIT AUTO OWNER TRUST 2009-C,

as Issuer

and

THE BANK OF NEW YORK MELLON,

as Indenture Trustee

Dated as of June 1, 2009

 

TABLE OF CONTENTS

CROSS REFERENCE TABLE 1

Exhibit 4.1

 

Execution Copy

 

INDENTURE, dated as of June 1, 2009 (this " Indenture "), between FORD CREDIT AUTO OWNER TRUST 2009-C, a Delaware statutory trust, as Issuer, and THE BANK OF NEW YORK MELLON, a New York banking corporation, as Indenture Trustee for the benefit of the Secured Parties.

Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Secured Parties.

GRANTING CLAUSE

The Issuer Grants to the Indenture Trustee at the Closing Date, as Indenture Trustee for the benefit of the Secured Parties, all of the Issuer's right, title and interest in, to and under, whether now owned or hereafter acquired, the Collateral.

The foregoing Grant is made in trust to secure (a) the payment of principal of, interest on and any other amounts owing in respect of the Notes as provided in this Indenture and (b) compliance by the Issuer with the provisions of this Indenture for the benefit of the Secured Parties.

The Indenture Trustee acknowledges such Grant, accepts the trusts under this Indenture in accordance with this Indenture and agrees to perform the duties required in this Indenture so that the interests of the Secured Parties may be adequately and effectively protected.

ARTICLE I

USAGE AND DEFINITIONS

Section 1.1             Usage and Definitions .  Capitalized terms used but not otherwise defined in this Indenture are defined in Appendix A to the Sale and Servicing Agreement, dated as of June 1, 2009, among Ford Credit Auto Owner Trust 2009-C, as Issuer, Ford Credit Auto Receivables Two LLC, as Depositor, and Ford Motor Credit Company LLC, as Servicer.  Appendix A also contains rules as to usage applicable to this Indenture.  Appendix A is incorporated by reference into this Indenture.

Section 1.2             Incorporation by Reference of Trust Indenture Act .  Whenever this Indenture refers to a provision of the TIA, the provision is 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 " means the Notes.

" indenture security holder " means a Noteholder.

" indenture to be qualified " means this Indenture.

" indenture trustee " or " institutional trustee " means the Indenture Trustee.

 

 

" obligor " on the indenture securities means the Issuer and any other obligor on the indenture securities.

All other TIA terms used in this Indenture that are defined in the TIA, defined by TIA reference to another statute or defined by Securities and Exchange Commission rule have the meaning assigned to them by such definitions.

ARTICLE II

THE NOTES

Section 2.1             Form .

(a)           Each Class of Notes, together with the Indenture Trustee's certificates of authentication, will be in substantially the form set forth in the related Exhibit with such variations as are required or permitted by this Indenture.  The Notes may have such marks of identification and such legends or endorsements placed on them as may be determined, consistent with this Indenture, by the Responsible Person of the Issuer executing such Notes, as evidenced by their execution of such Notes.  The physical Notes will be produced by any method as determined by the Responsible Person of the Issuer executing such Notes, as evidenced by their execution of such Notes.

(b)           Each Note will be dated the date of its authentication.  The terms of the Notes set forth in Exhibit A are part of this Indenture and are incorporated into this Indenture by reference.

Section 2.2             Execution, Authentication and Delivery .

(a)           A Responsible Person of the Issuer will execute the Notes on behalf of the Issuer.  The signature of such Responsible Person on the Notes may be manual or facsimile.  Notes bearing the manual or facsimile signature of an individual who was a Responsible Person of the Issuer will bind the Issuer, notwithstanding that such individual has ceased to hold such office before the authentication and delivery of such Notes or did not hold such office at the date of issuance of such Notes.

(b)           The Indenture Trustee will, upon Issuer Order, authenticate and deliver the Notes for original issue in the Classes, Note Interest Rates and initial Note Balances as set forth below.

(c)           The Notes will initially be issued as Book-Entry Notes.  The Notes (other than the Class A-1 Notes) will be issuable in minimum denominations of $100,000 and in multiples of $1,000 in excess thereof.  The Class A-1 Notes will be issuable in minimum denominations of $250,000 and in multiples of $1,000 in excess thereof.  Notwithstanding the

 

foregoing, one Note of each Class may fail to be in such minimum denominations due to the difference between such minimum denomination requirement and the initial Note Balance of the Notes.

 

(d)     No Note will be entitled to any benefit under this Indenture or be valid for any purpose, unless it bears a certificate of authentication substantially in the form provided for in this Indenture executed by the Indenture Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Note will be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered under this Indenture.

Section 2.3             Tax Treatment .  The Issuer intends that Notes that are owned or beneficially owned by a Person other than Ford Credit or its Affiliates will be indebtedness of the Issuer, secured by the Collateral, for U.S. federal, State and local income, single business and franchise tax purposes.  The Issuer, by entering into this Indenture, and each Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance of an interest in the applicable Book-Entry Note), agree to treat the Notes for U.S. federal, State and local income, single business and franchise tax purposes as indebtedness of the Issuer.

Section 2.4             Registration; Registration of Transfer and Exchange .

(a)           The Issuer appoints the Indenture Trustee to be the " Note Registrar " and to keep a register (the " Note Register ") for the purpose of registering Notes and transfers of Notes as provided in this Indenture.  Upon any resignation of the Note Registrar, the Issuer will promptly appoint a successor or, if it elects not to make such an appointment, assume the duties of Note Registrar.  If the Issuer appoints a Person other than the Indenture Trustee as Note Registrar, (i) the Issuer will notify the Indenture Trustee of such appointment, (ii) the Indenture Trustee will have the right to inspect the Note Register at all reasonable times and to obtain copies of the Note Register and (iii) the Indenture Trustee will have the right to rely upon a certificate executed by an officer of the Note Registrar as to the names and addresses of the Noteholders and the principal amounts and number of the Notes.

(b)           Upon surrender for registration of transfer of any Note at the office or agency of the Issuer maintained under Section 3.2, if the requirements of Section 8-401(a) of the UCC are met, the Issuer will execute, the Indenture Trustee will authenticate and the Noteholder will obtain from the Indenture Trustee, in the name of the designated transferee or transferees, one or more new Notes of the same Class, in any authorized denomination, in the same aggre­gate principal amount.

(c)           A Noteholder may exchange Notes for other Notes of the same Class, in any authorized denominations, in the same aggregate principal amount, by surrendering the Notes to be exchanged at the office or agency of the Issuer maintained under Section 3.2.  If the requirements of Section 8-401(a) of the UCC are met, the Issuer will execute, the Indenture Trustee will authenticate and the Noteholder will obtain from the Indenture Trustee the Notes that the Noteholder making such exchange is entitled to receive.

(d)           All Notes issued upon any registration of transfer or exchange of Notes will be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same

 

benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.

 

(e)     Every Note presented or surrendered for registration of transfer or exchange will be (i) duly endorsed by, or be accompanied by a written instrument of transfer in form satisfactory to the Note Registrar or the Indenture Trustee duly executed by, the Noteholder of such Note or such Noteholder's attorney duly authorized in writing, with such signature guaranteed by an "eligible guarantor institution" meeting the requirements of the Note Registrar which requirements include membership or participation in Securities Transfer Agents Medallion Program or such other "signature guarantee program" as may be determined by the Note Registrar in addition to, or in substitution for, the Securities Transfer Agents Medallion Program, all in accordance with the Exchange Act, and (ii) accompanied by such other documents as the Indenture Trustee may require.

(f)           None of the Issuer, the Note Registrar or the Indenture Trustee will impose a service charge on a Noteholder for any registration of transfer or exchange of Notes.  The Issuer, the Note Registrar or the Indenture Trustee may require such Noteholder to pay an amount sufficient to cover any tax or other governmental charge that may be imposed in connection with such registration of transfer or exchange of the Notes.

(g)           Neither the Issuer nor the Note Registrar will be required to register transfers or exchanges of Notes selected for redemption or Notes whose next Payment Date is not more than 15 days after the requested date of such transfer or exchange.

(h)           The Class A-1 Notes have not been registered under the Securities Act or any State securities law.  None of the Issuer, the Note Registrar or the Indenture Trustee is obligated to register the Class A-1 Notes under the Securities Act or any other securities or "blue sky" laws or to take any other action not otherwise required under this Indenture or the Trust Agreement to permit the transfer of any Class A-1 Note without registration.  The Issuer, at the direction of the Depositor or the Administrator, may elect to register, or cause the registration of, the Class A-1 Notes under the Securities Act and any applicable State securities law, in which case the Issuer will deliver, or cause to be delivered, to the Indenture Trustee and the Registrar such Opinions of Counsel, Officer's Certificates and other information as determined by the Depositor as necessary to effect such registration.

(i)           Until such time as any such Class of Notes has been registered under the Securities Act and any applicable State securities law pursuant to Section 2.4(h), the Class A-1 Notes may not be sold, transferred, assigned, participated, pledged, or otherwise disposed of (any such act, a " Class A-1 Note Transfer ") to any Person except in accordance with the provisions of this Section 2.4, and any attempted Class A-1 Note Transfer in violation of this Section 2.4 will be null and void (each a " Void Class A-1 Note Transfer ").

(j)           Each Class A-1 Note will bear a legend to the effect of the legend contained in Exhibit A unless determined otherwise by the Administrator (as certified to the Indenture Trustee in an Officer's Certificate) consistent with applicable law.

 

(k)           By acceptance of any Class A-1 Note, the Class A-1 Noteholder specifically agrees with and represents to the Depositor, the Issuer and the Note Registrar, that no Class A-1 Note Transfer will be made unless (i) the registration requirements of the Securities Act and any applicable State securities laws have been complied with in accordance with Section 2.4(h), (ii) such Class A-1 Note Transfer is to the Depositor or its Affiliates, or (iii) such Class A-1 Note Transfer is exempt from the registration requirements under the Securities Act because such Class A-1 Note Transfer is in compliance with Rule 144A under the Securities Act, to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer (as defined in the Securities Act) that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such Class A-1 Note Transfer is being made in reliance upon Rule 144A under the Securities Act.

(l)            The Depositor will make available to the prospective transferor and transferee of a Class A-1 Note information requested to satisfy the requirements of paragraph (d)(4) of Rule 144A (the " Rule 144A Information "). The Rule 144A Information will include any or all of the following items requested by the prospective transferee:

 

(m)            Each Note Owner that is subject to Title I of ERISA, Section 4975 of the Code or any Similar Law, by accepting a beneficial interest in any Note, shall be deemed to represent that its purchase and holding of such beneficial interest does not constitute and will not result in a non-exempt prohibited transaction under Title I of ERISA or Section 4975 of the Code due to the applicability of a statutory or administrative exemption from the prohibited transaction rules (or, if the Note Owner is subject to any Similar Law, such purchase and holding does not constitute and will not result in a violation of such Similar Law).

Section 2.5             Mutilated, Destroyed, Lost or Stolen Notes .

(a)           If a mutilated Note is surrendered to the Indenture Trustee or the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or theft of a Note, then the Issuer will execute and, upon Issuer Request, the Indenture Trustee will authenticate and deliver a replacement Note of the same Class and principal amount in exchange for or in lieu of such Note so long as (i) the Indenture Trustee receives such security or indemnity as may be required by it to hold the Issuer and the Indenture Trustee harmless, (ii) none of the Issuer, the Note Registrar or the Indenture Trustee have received notice that such Note has been acquired by a protected purchaser, as defined in Section 8-303 of the UCC and (iii) the requirements of Section 8-405 of the UCC are met.  However, if any such destroyed, lost or stolen Note (but not a mutilated Note) is due and payable within 15 days or has been called for redemption, instead of issuing a replacement Note, the Issuer may pay such destroyed, lost or stolen Note when so due or payable or upon the Redemption Date without surrender of such Note.  If a protected purchaser of the original Note in lieu of which such replacement Note was issued (or such payment made) presents for payment such original Note, the Issuer and the Indenture Trustee will be entitled to recover such replacement Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Note (or such payment) from such Person to whom such replacement Note (or such payment) was delivered or any assignee of such Person, except a protected purchaser, and will be entitled to recover upon the security or indemnity provided for such replacement Note (or such payment) for any cost, expense, loss, damage, claim or liability incurred by the Issuer or the Indenture Trustee in connection with such replacement Note (or such payment).

(b)           Upon the issuance of any replacement Note under Section 2.5(a), the Issuer may require the Noteholder of such Note to pay an amount sufficient to cover any tax or other governmental charge imposed and any other reasonable expenses incurred in connection with such replacement Note.

(c)           Each replacement Note issued pursuant to Section 2.5(a) will constitute an original additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note will be enforceable by anyone and, except as otherwise provided in this

 

Indenture, will be entitled to all the benefits of this Indenture equally and proportionately with all other Notes of the same Class duly issued under this Indenture.

 

(d)           The provisions of this Section 2.5 are exclusive and preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.

Section 2.6     Persons Deemed Owners .  With respect to any date of determination, the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name any Note is registered as of such date as the owner of such Note for the purpose of receiving payments of principal of and any interest on such Note and for all other purposes, and none of the Issuer, the Indenture Trustee or any agent of the Issuer or the Indenture Trustee will be affected by notice to the contrary.

Section 2.7             Payment of Principal and Interest .

(a)           Each Class of Notes will accrue interest at the applicable Note Interest Rate.  Interest on each Note will be due and payable on each Payment Date as specified in such Note.  Interest on the Class A-1 Notes will be computed on the basis of actual number of days elapsed and a 360-day year.  Interest on the Notes (other than the Class A-1 Notes) will be computed on the basis of a 360-day year consisting of twelve 30-day months.

(b)           Interest and principal payments on each Class of Notes will be made ratably to the Noteholders of such Class entitled to such payments.  On each Payment Date, distributions to be made with respect to interest on and principal of the Book-Entry Notes will be paid to the Registered Noteholder by wire transfer in immediately available funds to the account designated by the nominee of the Clearing Agency (initially, such nominee will be Cede & Co.).  Distributions to be made with respect to interest on and principal of the Definitive Notes will be paid to the Registered Noteholder (i) if such Noteholder has provided to the Note Registrar appropriate instructions at least five Business Days before such Payment Date and the aggregate original principal amount of such Noteholder's Notes is at least $1,000,000, by wire transfer in immediately available funds to the account of such Noteholder or (ii) by check mailed first class mail, postage prepaid, to such Registered Noteholder's address as it appears on the Note Register on the related Record Date.  However, the final installment of principal (whether payable by wire transfer or check) of each Note on a Payment Date, the Redemption Date or the applicable Final Scheduled Payment Date will be payable only upon presentation and surrender of such Note.  The Indenture Trustee will notify each Registered Noteholder of the date on which the Issuer expects that the final installment of principal of and interest on such Registered Noteholder's Notes will be paid not later than five days before such date.  Such notice will specify the place where such Notes may be presented and surrendered for payment of such installment.  All funds paid by wire transfers or checks that are returned undelivered will be held in accordance with Section 3.3.

(c)           The principal of each Note will be payable in installments on each Payment Date as specified in such Note.  The entire unpaid Note Balance of each Class of Notes will be due and payable on the earlier of the Final Scheduled Payment Date and the Redemption Date.  Notwithstanding the foregoing, the entire unpaid principal amount of the Notes will be

 

due and payable on the date on which the Notes are declared to be immediately due and payable in the manner provided in Section 5.2(a).

 

Section 2.8             Cancellation .  Any Person that receives a Note surrendered for payment, registration of transfer, exchange or redemption will deliver such Note to the Indenture Trustee.  The Indenture Trustee will promptly cancel all Notes it receives that have been surrendered for payment, registration of transfer or exchange, or redemption.  The Issuer may deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered under this Indenture which the Issuer may have acquired in any manner, and the Indenture Trustee will promptly cancel such Notes.  No Notes will be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 2.8.  The Indenture Trustee may hold or dispose of all cancelled Notes in accordance with its standard retention or disposal policy unless the Issuer directs, by Issuer Order, that they be destroyed or returned to it (so long as such Notes have not been disposed of previously by the Indenture Trustee).

Section 2.9             Release of Collateral .  The Indenture Trustee will release property from the Lien of this Indenture only in accordance with Sections 8.4 and 10.1.

Section 2.10           Book-Entry Notes .  The Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and Class A-4 Notes will be issued as Book-Entry Notes on the Closing Date.  The Book-Entry Notes, upon original issuance, will be issued in the form of typewritten Notes representing the Book-Entry Notes and delivered to The Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the Issuer.  The Book-Entry Notes will be registered initially on the Note Register in the name of Cede & Co., the nominee of the initial Clearing Agency, and no Note Owner will receive a Definitive Note representing such Note Owner's interest in such Note, except as provided in Section 2.11.  Unless and until definitive, fully registered Notes (the " Definitive Notes ") have been issued to Note Owners pursuant to Section 2.11:

(a)           with respect to Book-Entry Notes, the Note Registrar and the Indenture Trustee will be entitled to deal with the Clearing Agency for all purposes of this Indenture (including the payment of principal of and interest on the Book-Entry Notes and the giving of notices, instructions or directions under this Indenture) as the sole Noteholder of the Book-Entry Notes, and will have no obligation to the Note Owners;

(b)           the Clearing Agency will make book-entry transfers among its participants and receive and transmit payments of principal of and interest on the Book-Entry Notes to such participants;

(c)           to the extent that the provisions of this Section 2.10 conflict with any other provisions of this Indenture, the provisions of this Section 2.10 will control;

(d)           the rights of Note Owners may be exercised only through the Clearing Agency and will be limited to those established by law and agreements between such Note Owners and the Clearing Agency and/or its participants pursuant to the DTC Letter; and

(e)           whenever this Indenture requires or permits actions to be taken based upon instructions or directions of Noteholders of a specified percentage of the Note Balance of the

 

Notes Outstanding (or the Controlling Class), the Clearing Agency will be deemed to represent such percentage only to the extent that it has received instructions to such effect from Note Owners and/or the Clearing Agency's participants owning or representing, respectively, such required percentage of the beneficial interest of the Notes Outstanding (or the Controlling Class) and has delivered such instructions to the Indenture Trustee.

 

Section 2.11           Definitive Notes .  With respect to any Class or Classes of Book-Entry Notes, if (a) the Administrator notifies the Indenture Trustee that the Clearing Agency is no longer willing or able to properly discharge its responsibilities as depository for the Book-Entry Notes and the Administrator is unable to reach an agreement on satisfactory terms with a qualified successor, (b) the Administrator notifies the Indenture Trustee that it elects to terminate the book-entry system through the Clearing Agency or (c) after the occurrence of an Event of Default or an Event of Servicing Termination, so long as any Book-Entry Notes are Outstanding Note Owners of at least a majority of the Note Balance of the Controlling Class notify the Indenture Trustee and the Clearing Agency that they elect to terminate the book-entry system through the Clearing Agency, then the Clearing Agency will notify all Note Owners and the Indenture Trustee of the occurrence of such election and of the availability of Definitive Notes to the Note Owners.  After the Clearing Agency has surrendered the typewritten Notes representing the Book-Entry Notes and delivered the registration instructions to the Indenture Trustee, the Issuer will execute and the Indenture Trustee will authenticate the Definitive Notes in accordance with the instructions of the Clearing Agency.  None of the Issuer, the Note Registrar or the Indenture Trustee will be liable for any delay in delivery of such instructions and may conclusively rely on, and will be protected in relying on, such instructions.  Upon the issuance of Definitive Notes to Note Owners, the Indenture Trustee will recognize the holders of such Definitive Notes as Noteholders.

Section 2.12           Authenticating Agents .

(a)           The Indenture Trustee may appoint one or more Persons (each, an " Authenticating Agent ") with the power to act on its behalf and subject to its direction in the authentication of Notes in connection with issuances, transfers and exchanges under Sections 2.2, 2.4, 2.5 and 9.6, as though each such 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 2.12 is deemed to be the authentication of Notes "by the Indenture Trustee."

(b)           Any Person into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, consolidation or conversion to which an Authenticating Agent is a party, or any Person succeeding to all or substantially all of the corporate trust business of an Authenticating Agent, will be the successor of such Authenticating Agent under this Indenture without the execution or filing of any document or any further act.

(c)           An Authenticating Agent may resign by giving notice of resignation to the Indenture Trustee and the Owner Trustee.  The Indenture Trustee may terminate the agency of an Authenticating Agent by giving notice of termination to such Authenticating Agent and the Owner Trustee.  Upon receiving such notice of resignation or upon such a termination, the

 

 

Indenture Trustee may appoint a successor Authenticating Agent and will notify the Owner Trustee of any such appointment.

 

(d)           Sections 2.8 and 6.4 will apply to each Authenticating Agent.

Section 2.13           Note Paying Agents .

(a)           The Indenture Trustee may appoint one or more Note Paying Agents that meet the eligibility standards for the Indenture Trustee specified in Section 6.11(a).  The Note Paying Agents will have the power to make distributions from the Trust Accounts.

(b)           Any Person into which a Note Paying Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, consolidation or conversion to which a Note Paying Agent is a party, or any Person succeeding to all or substantially all of the corporate trust business of a Note Paying Agent, will be the successor of such Note Paying Agent under this Indenture without the execution or filing of any document or any further act.

(c)           A Note Paying Agent may resign by giving notice of resignation to the Indenture Trustee, the Administrator and the Issuer.  The Indenture Trustee may terminate the agency of a Note Paying Agent by giving notice of termination to such Note Paying Agent, the Administrator and the Issuer.  Upon receiving such notice of resignation or upon such a termination, the Indenture Trustee may appoint a successor Note Paying Agent and will notify the Administrator and the Issuer of any such appointment.

(d)           Sections 2.8 and 6.4 will apply to each Note Paying Agent.

ARTICLE III

COVENANTS AND REPRESENTATIONS

Section 3.1             Payment of Principal and Interest .  The Issuer will duly and punctually pay the principal of and interest on the Notes in accordance with the Notes and this Indenture.  Amounts withheld under the Code or any State or local tax law by any Person from a payment to any Noteholder will be considered as having been paid by the Issuer to such Noteholder.

Section 3.2             Maintenance of Office or Agency .  The Issuer will maintain an office or agency in the Borough of Manhattan, The City of New York, where Notes may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served.  The Issuer initially appoints the Indenture Trustee to serve as its agent for such purposes.  The Issuer will promptly notify the Indenture Trustee of any change in the location of such office or agency.  If the Issuer fails to maintain any such office or agency or fails to furnish the Indenture Trustee with the address of such office or agency, such surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Issuer appoints the Indenture Trustee as its agent to receive all such surrenders, notices and demands.

 

Section 3.3             Money for Payments To Be Held in Trust .

(a)           All payments of amounts due and payable with respect to any Notes that are to be made from amounts withdrawn from the Bank Accounts will be made on behalf of the Issuer by the Indenture Trustee or by another Note Paying Agent, and no amounts so withdrawnfrom the Bank Accounts for payments of Notes may be paid over to the Issuer, except as provided in this Section 3.3.

(b)           The Indenture Trustee (including in its capacity as Note Paying Agent) will cause each Note Paying Agent (other than the Indenture Trustee itself) to execute and deliver to the Indenture Trustee, an instrument in which such Note Paying Agent agrees with the Indenture Trustee to:

(c)           The Issuer may by Issuer Order, direct any Note Paying Agent to pay to the Indenture Trustee all sums held in trust by such Note Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts as those upon which the sums were held by such Note Paying Agent.  Upon a Note Paying Agent's payment of all sums held in trust to the Indenture Trustee, such Note Paying Agent will be released from all further liability with respect to such money.

(d)           Subject to laws with respect to escheat of funds, any money held by the Indenture Trustee or any Note Paying Agent in trust for the payment of any amount due with respect to any Note and remaining unclaimed for two years after such amount has become due and payable will be discharged from such trust and paid to the Issuer upon Issuer Request.  After such discharge and payment, the Noteholder of such Note will, as an unsecured general creditor, look only to the Issuer for payment of such amount due and unclaimed (but only to the extent of

the amounts so paid to the Issuer), and all liability of the Indenture Trustee or such Note Paying Agent with respect to such trust money will thereupon cease.  However, the Indenture Trustee or such Note Paying Agent, before making any such repayment, will publish once, at the expense and direction of the Issuer, in a newspaper customarily published on each Business Day in the English language and of general circulation in The City of New York, notice that such money remains unclaimed and that after a date specified in such notice, which must be at least 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer.  The Indenture Trustee will also adopt and employ, at the expense of the Administrator and direction of the Issuer, any other reasonable means of notification of such repayment (including notifying Noteholders whose Notes have been called but have not been surrendered for redemption or whose right to or interest in monies due and payable but not claimed is determinable from the records of the Indenture Trustee or of any Note Paying Agent of such repayment, at the last address of record for each such Noteholder).

Section 3.4             Existence .  The Issuer will keep in full effect its existence, rights and franchises as a statutory trust under the Delaware Statutory Trust Act (unless it becomes, or any successor Issuer under this Indenture is or becomes, organized under the laws of any other State or of the United States, in which case the Issuer will keep in full effect its existence, rights and franchises under the laws of such other jurisdiction) and will obtain and preserve its qualification in each jurisdiction in which such qualification is or will be necessary to protect the validity and enforceability of this Indenture, the Notes, the Collateral and each other instrument or agreement included in the Collateral.

Section 3.5             Protection of Collateral .

(a)           The Issuer will (1) execute and deliver all such supple­ments and amendments to this Indenture and instruments of further assurance and other instruments, (2) file or authorize and cause to be filed all such financing statements and amendments and continuations of such financing statements and (3) take such other action, in each case necessary or advisable to:

(b)           The Issuer authorizes the Administrator and the Indenture Trustee to file any financing or continuation statements, and amendments to such statements, in all jurisdictions and with all filing offices as are necessary or advisable to preserve, maintain and protect the interest of the Indenture Trustee in the Collateral.  Such financing and continuation statements

may describe the Collateral in any manner as the Administrator or the Indenture Trustee may reasonably determine to ensure the perfection of the interest of the Indenture Trustee in the Collateral (including describing the Collateral as "all assets" of the Issuer).  The Administrator or the Indenture Trustee, as applicable, will deliver to the Issuer file-stamped copies of, or filing receipts for, any such financing statement and continuation statement promptly upon such document becoming available following filing.

(c)           The Indenture Trustee is under no obligation (i) to make any determination of whether any such financing or continuation statements, and amendments to such statements, are required to be filed pursuant to this Section 3.5 or (ii) to file any such financing or continuation statement, or amendment to such statements, and will not be liable for failure to do so.

Section 3.6             Performance of Obligations; Servicing of Receivables .

(a)            No Release of Material Covenants or Obligations .  The Issuer will not take any action, and will use its best efforts to prevent any action from being taken by others, that would release any Person from any material covenants or obligations under any instrument or agreement included in the Collateral or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as provided in any Basic Document.

(b)            Contracting .  The Issuer may contract with other Persons to assist it in performing its duties under this Indenture, and any performance of such duties by a Person identified to the Indenture Trustee in an Officer's Certificate of the Issuer will be deemed to be action taken by the Issuer.  Initially, the Issuer has contracted with the Servicer and the Administrator to assist the Issuer in performing its duties under this Indenture.

(c)            Performance of Obligations .  The Issuer will punctually perform and observe all of its obligations and agreements contained in the Basic Documents and in the instruments and agreements included in the Collateral.

(d)            Event of Servicing Termination .  If the Issuer has actual knowledge of the occurrence of an Event of Servicing Termination, the Issuer will promptly notify the Indenture Trustee and the Rating Agencies of such occurrence and specify in such notice any action the Issuer is taking in respect of such event.  If an Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties and obligations under the Sale and Servicing Agreement with respect to the Receivables, the Issuer will take all reasonable steps available to cause the Servicer to remedy such failure.

Section 3.7             Negative Covenants .  So long as any Notes are Outstanding, the Issuer will not:

(a)           except as expressly permitted by any Basic Document, sell, transfer, exchange or otherwise dispose of any of the assets in the Collateral unless directed to do so by the Indenture Trustee;

 

(b)           claim any credit on, or make any deduction from the principal or interest payable in respect of, the Notes (other than amounts withheld from such payments under the Code or any State or local tax law) or assert any claim against any present or former Noteholder by reason of the payment of the taxes levied or assessed upon the Issuer or the Collateral;

 

(c)           dissolve or liquidate in whole or in part;

(d)           (i) permit the validity or effectiveness of this Indenture to be impaired, or permit the Lien of this Indenture to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to the Notes under this Indenture except as expressly permitted by this Indenture, (ii) permit any Lien other than Permitted Liens to be created on or extend to or otherwise arise upon or burden the Collateral or (iii) permit the Lien of this Indenture not to constitute a valid first priority security interest in the Collateral (other than with respect to Permitted Liens); or

(e)           except as otherwise provided in any Basic Document, amend, modify, waive, supplement, terminate or surrender the terms of any Collateral or any of the Basic Documents without the consent of the Indenture Trustee or the Noteholders of at least a majority of the Note Balance of the Notes Outstanding and upon notice to the Rating Agencies.

Section 3.8             Opinions as to Collateral .

(a)           If this Indenture is subject to recording in any appropriate public recording offices, the Issuer, at its expense, will effect such recording and deliver an Opinion of Counsel to the Indenture Trustee (which may be counsel to the Issuer or any other counsel reasonably acceptable to the Indenture Trustee) to the effect that such recording is necessary either for the protection of the Secured Parties or any other Person secured under this Indenture or for the enforcement of any right or remedy granted to the Indenture Trustee under this Indenture.

(b)           On the Closing Date, the Issuer will furnish to the Indenture Trustee an Opinion of Counsel to the effect that this Indenture and all financing statements and continuation statements have been properly recorded and filed to make effective the Lien intended to be created by this Indenture, and reciting the details of such action, or stating that in the opinion of such counsel no such action is necessary to make such Lien effective.

(c)           On or before April 30 in each calendar year, beginning in the year after the Closing Date, the Issuer will furnish to the Indenture Trustee an Opinion of Counsel either to the effect that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Indenture and all financing statements and continuation statements, as is necessary to maintain the Lien of this Indenture, and reciting the details of such action, or to the effect that in the opinion of such counsel no such action is necessary to maintain such Lien.

Section 3.9             Annual Statement as to Compliance .  The Issuer will deliver to the Indenture Trustee within 90 days after the end of each calendar year, an Officer's Certificate, dated as of December 31 of the preceding year stating, as to the Responsible Person signing such Officer's Certificate, that (a) a review of the Issuer's activities and of its performance under this Indenture during the preceding calendar year (or, in the case of the first certificate, the portion of

 

Section 3.10           Consolidation and Merger; Sale of Assets .  The Issuer will not consolidate or merge with or into any other Person or convey or transfer all or substantially all of the assets included in the Collateral to any Person, unless:

(a)           the Person (if other than the Issuer) formed by or surviving such consolidation or merger, or that acquires the properties and assets, (i) is organized and existing under the laws of the United States or any State and (ii) assumes, by an indenture supplemental to this Indenture, executed and delivered to the Indenture Trustee, in form reasonably satisfactory to the Indenture Trustee, the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture to be performed or observed by the Issuer, all as provided in this Indenture;

(b)           with respect to a conveyance or transfer of all or substantially all of the assets included in the Collateral, the Person that acquires the properties and assets agrees by means of the supplemental inden­ture executed and delivered pursuant to clause (a) (i) that all right, title and interest so conveyed or transferred will be subject and subordinate to the rights of the Noteholders, (ii) unless otherwise provided in such supplemental indenture, to indemnify, defend and hold harmless the Issuer from and against any costs, expenses, losses, damages, claims and liabilities (including attor­neys' fees) arising under or related to this Indenture and the Notes and (iii) that such Person will make all filings with the Securities and Exchange Commission (and any other appropriate Person) required by the Exchange Act in connection with the Notes;

(c)           immediately after giving effect to such consolidation, merger or sale, no Default or Event of Default will have occurred and be continuing;

(d)           Rating Agency Confirmation has been obtained with respect to such consolidation, merger or sale;

(e)           the Issuer has received an Opinion of Counsel (and has delivered copies of such Opinion of Counsel to the Indenture Trustee) to the effect that such consolidation, merger or sale will not cause (i) any security issued by the Issuer to be deemed sold or exchanged for

 

purposes of Section 1001 of the Code or (ii) the Issuer to be treated as an association or publicly traded partnership taxable as a corporation for U.S. federal income tax purposes;

(f)           any action that is necessary to maintain the Lien and security interest created by this Indenture has been taken; and

 

(g)           the Issuer has delivered to the Depositor, the Servicer, the Owner Trustee and the Indenture Trustee an Officer's Certificate and an Opinion of Counsel each to the effect that such consolidation, merger or sale and such supplemental indenture comply with this Article III and that all conditions precedent in this Indenture relating to such consolidation, merger or sale have been complied with (including any filing required by the Exchange Act).

Section 3.11           Successor or Transferee .

(a)           Upon any consolidation or merger of the Issuer in accordance with Section 3.10, the Person formed by or surviving such consolidation or merger (if other than the Issuer) will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such Person had been named as the Issuer in this Indenture.

(b)           Upon a conveyance or sale of all or substantially all of the assets and properties of the Issuer pursuant to Section 3.10, the Issuer will be released from every covenant and agreement of this Indenture to be performed or observed by the Issuer with respect to the Notes immediately upon the delivery of notice to the Indenture Trustee stating that the Issuer is to be so released.

Section 3.12           No Other Activities .  The Issuer will not engage in any activities other than financing, acquiring, owning and pledging the Receivables in the manner contemplated by the Basic Documents and activities incidental thereto.

Section 3.13           Further Instruments and Acts .  Upon request of the Indenture Trustee, the Issuer will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out the purpose of this Indenture.

Section 3.14           Restricted Payments .

(a)           The Issuer will not, directly or indirectly, (i) make any distribution (by reduction of capital or otherwise) to the Owner Trustee or any owner of a beneficial interest in the Issuer or otherwise with respect to any ownership or equity interest or security in or of the Issuer or to the Servicer or the Administrator, (ii) redeem, purchase, retire or otherwise acquire for value any such ownership or equity interest or security or (iii) set aside or otherwise segregate any amounts for any such purpose.

(b)           Notwithstanding Section 3.14(a), the Issuer may make payments to the Servicer, the Administrator, the Owner Trustee, the Indenture Trustee, the Noteholders and the Depositor to the extent contemplated by the Basic Documents.

 

(c)           The Issuer will not, directly or indirectly, make payments to or distributions from the Collection Account or the Principal Payment Account except in accordance with the Basic Docu­ments.

Section 3.15     Notice of Events of Default .  The Issuer will notify the Indenture Trustee, the Servicer and the Rating Agencies within five Business Days after a Responsible Person of the Issuer has actual knowledge of an Event of Default.

Section 3.16           Representations and Warranties of the Issuer as to Security Interest .  The Issuer represents and warrants to the Indenture Trustee as of the Closing Date:

(a)           This Indenture creates a valid and continuing security interest (as defined in the applicable UCC) in the Collateral in favor of the Indenture Trustee which security interest is prior to all other Liens, and is enforceable as such against creditors of and purchasers from the Issuer.

(b)           All of the Permitted Investments have been and will be credited to a Securities Account.  The securities intermediary for each Securities Account has agreed to treat all assets credited to the Securities Accounts as "financial assets" within the meaning of the applicable UCC.  The Collateral (other than those Permitted Investments which have been credited to a Securities Account) constitutes "chattel paper," "instruments" or "general intangibles" within the meaning of the applicable UCC.

(c)           The Issuer owns and has good and marketable title to the Receivables free and clear of any Lien other than Permitted Liens.  The Issuer has received all consents and approvals required by the terms of the Receivables to transfer to the Indenture Trustee all of its interest and rights in the Receivables, except to the extent that any requirement for consent or approval is rendered ineffective under the applicable UCC.

(d)           The Issuer has caused, or will cause within ten days after the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest Granted in the Collateral to the Indenture Trustee.

(e)           The Issuer has delivered to the Indenture Trustee a fully executed agreement pursuant to which the securities intermediary has agreed to comply with all instructions originated by the Indenture Trustee relating to the Securities Accounts without further consent by the Issuer.

(f)           Other than the security interest Granted to the Indenture Trustee pursuant to this Indenture, the Issuer has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any part of the Collateral.  The Issuer has not authorized the filing of and is not aware of any financing statements against the Issuer that include a description of collateral covering any part of the Collateral, other than any financing statements relating to the security interest Granted to the Indenture Trustee.  The Issuer is not aware of any judgment or tax lien filings against it.

 

 

 

(g)           The Securities Accounts are not in the name of any Person other than the Issuer or the Indenture Trustee.  The Issuer has not consented to the securities intermediary of any Securities Account complying with entitlement orders of any Person other than the Indenture Trustee.

(h)           All financing statements filed or to be filed against the Issuer, or any assignor of which the Issuer is the assignee, in favor of the Indenture Trustee in connection with this Indenture describing the Collateral contain a statement substantially to the following effect: "The grant of a security interest in any collateral described in this financing statement will violate the rights of the Secured Parties."

Section 3.17           Audits of the Issuer .  The Issuer agrees that, with reasonable prior notice, it will permit any authorized representative of the Indenture Trustee, the Servicer or the Administrator, during the Issuer's normal business hours, to examine and audit the books of account, records, reports and other documents and materials of the Issuer relating to the performance of the Issuer's obligations under this Indenture.  In addition, the Issuer will permit such representatives to make copies and extracts of any such books and records and to discuss the same with the Issuer's officers and registered public accountants.  Each of the Indenture Trustee, the Servicer and the Administrator will, and will cause its authorized representatives to, hold in confidence all such information except to the extent (a) disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) or (b) that the Indenture Trustee, the Servicer or the Administrator, as the case may be, reasonably determines that such disclosure is consistent with its obligations under this Indenture.

Section 3.18           Representations and Warranties of the Issuer .  The Issuer represents and warrants to the Indenture Trustee as of the Closing Date:

(a)            Organization and Qualification .  The Issuer is a statutory trust duly formed, validly existing and in good standing under the laws of the State of Delaware.

(b)            Power, Authorization and Enforceability .  The Issuer has the power and authority to execute, deliver and perform the terms this Indenture.  The Issuer has authorized the execution, delivery and performance of the terms of this Indenture.  This Indenture is the legal, valid and binding obligation of the Issuer enforceable against the Issuer, except as may be limited by insolvency, bankruptcy, reorganization or other laws relating to the enforcement of creditors' rights or by general equitable principles.

(c)            No Conflicts and No Violation .  The execution and delivery by the Issuer of this Indenture, the consummation by the Issuer of the transactions contemplated by this Indenture and the compli­ance by the Issuer with this Indenture will not (i) violate any Delaware State law, governmental rule or regulation applicable to the Issuer or any judgment or decree binding on it or (ii) conflict with, result in a breach of, or constitute (with or without notice or lapse of time or both) a default under any indenture, mortgage, deed of trust, loan agreement, guarantee or similar agreement or instrument under which the Issuer is a debtor or guarantor, in each case which conflict, breach, default, Lien, or violation would reasonably be expected to have a material adverse effect on the Issuer's ability to perform its obligations under this Indenture.

 

ARTICLE IV

SATISFACTION AND DISCHARGE

Section 4.1            Satisfaction and Discharge of Indenture .

(a)           Subject to Section 4.1(b), this Indenture will cease to be of further effect with respect to the Notes, and the Indenture Trustee, upon Issuer Order and at the expense of the Issuer, will execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Notes, if:

(b)           After the satisfaction and discharge of this Indenture pursuant to Section 4.1(a), this Indenture will continue as to (i) rights of registration of transfer and exchange, (ii) replacement of mutilated, destroyed, lost or stolen Notes, (iii) the rights of Noteholders to receive payments of principal of and interest on the Notes, (iv) Sections 3.3, 3.4, 3.5, 3.7, 3.10, 3.12, 3.13, 3.14 and 3.15, (v) the rights, obligations and immunities of the Indenture Trustee under this Indenture and (vi) the rights of the Secured Parties as beneficiaries of this Indenture with respect to the property deposited with the Indenture Trustee payable to all or any of them for a period of 2 years following such satisfaction and discharge.

(c)           Upon the satisfaction and discharge of the Indenture pursuant to this Section 4.1, at the request of the Owner Trustee, the Indenture Trustee will deliver to the Owner Trustee a certificate of a Trustee Officer stating that all Noteholders have been paid in full.

 

REMEDIES

Section 5.1             Events of Default .

(a)           The occurrence of any one of the following events will constitute an event of default under this Indenture (each, an " Event of Default "):

(b)           The Issuer will notify the Indenture Trustee within five Business Days after a Responsible Person of the Issuer has actual knowledge of the occurrence of an event set forth in Section 5.1(a)(iii) which with the giving of notice and the lapse of time would become an Event of Default, which notice will describe such Default, the status of such Default and what action the Issuer is taking or proposes to take with respect to such Default.  The Issuer will send a copy of such notice to each Qualified Institution (if not the Indenture Trustee) maintaining a Bank Account.

(c)           The Indenture Trustee will notify the Noteholders within five Business Days after a Responsible Person of the Indenture Trustee has actual knowledge of an Event of Default.

Section 5.2             Acceleration of Maturity; Rescission and Annulment .

(a)           If an Event of Default occurs and is continuing, the Indenture Trustee or the Noteholders of at least a majority of the Note Balance of the Controlling Class may declare all of the Notes to be immediately due and payable, by notice to the Issuer (and to the Indenture Trustee if given by the Noteholders).  Upon any such declaration, the unpaid Note Balance of the Notes, together with accrued and unpaid interest through the date of acceleration, will become

 

immediately due and payable.  If an Event of Default specified in Section 5.1(a)(iv) occurs, all unpaid principal of and accrued and unpaid interest on the Notes, and all other amounts payable under this Indenture, will automatically become due and payable without any declaration or other act on the part of the Indenture Trustee or any Noteholder.  Upon any such declaration or automatic acceleration, the Indenture Trustee will promptly notify each Noteholder and each Qualified Institution (if not the Indenture Trustee) maintaining a Bank Account.

 

(b)           The Noteholders of at least a majority of the Note Balance of the Controlling Class, by notice to the Issuer and the Indenture Trustee, may rescind and annul a declaration of acceleration of maturity and its consequences before a judgment or decree for payment of the amount due has been obtained by the Indenture Trustee as provided in this Article V if:

Section 5.3             Collection of Indebtedness by the Indenture Trustee .

(a)           The Issuer covenants that if an Event of Default under Section 5.1(a)(i) or (ii) occurs and continues, the Issuer, upon demand of the Indenture Trustee, will pay to the Indenture Trustee for the benefit of the Noteholders, such overdue amount with interest on any overdue principal at the applicable Note Interest Rate and, to the extent lawful, with interest on any overdue interest at the applicable Note Interest Rate.  In addition, the Issuer covenants to pay, or to cause the Administrator to pay, the costs and expenses of collection, including all amounts owed to the Indenture Trustee under Section 6.7.

(b)           If the Issuer fails to pay such amounts upon such demand, the Indenture Trustee, in its own name and as trustee of an express trust, may institute a Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to judgment or final decree, and may enforce the same against the Issuer and collect the monies adjudged or decreed to be payable in the manner provided by law out of the Collateral.

Section 5.4             Trustee May File Proofs of Claim .

(a)           In case there is pending, relative to the Issuer, Proceedings under the Bankruptcy Code or any other federal or State bankruptcy, insolvency or other similar law, or in case a trustee, liquidator, receiver or similar official has been appointed for or taken possession

 

 

 

of the Issuer or its property, the Indenture Trustee, irrespective of whether the Indenture Trustee has made any demand pursuant to Section 5.3, may:

(b)           Except as provided in Section 5.4(a)(ii), this Indenture does not authorize the Indenture Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Noteholder to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such Proceeding.

Section 5.5             Trustee May Enforce Claims Without Possession of Notes .

(a)           All rights of action and claims under this Indenture, or under any of the Notes, may be enforced by the Indenture Trustee without the possession of any of the Notes or the production of any of the Notes in any Proceeding relative to any of the Notes, and any such Proceeding instituted by the Indenture Trustee will be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the amounts owed to the Indenture Trustee under Section 6.7, will be for the benefit of the Secured Parties in respect of which such judgment has been recovered.

(b)           In any Proceeding brought by the Indenture Trustee (and any Proceeding involving the interpretation of this Indenture to which the Indenture Trustee is a party), the Indenture Trustee will be held to represent all the Noteholders, and it will not be necessary to make any Noteholder a party to any such Proceeding.

 

Section 5.6             Remedies; Priorities .

(a)           If the Notes have been accelerated under Section 5.2(a), the Indenture Trustee may do one or more of the following (subject to Section 5.7), and will upon direction of a majority of the Controlling Class:

 

The Indenture Trustee will notify each Noteholder and the Depositor of any sale or liquidation pursuant to Section 5.6(a)(iv) at least 15 days before such sale or liquidation.  Any Noteholder or the Depositor may submit a bid with respect to such sale or liquidation.

(b)           Notwithstanding Section 5.6(a), the Indenture Trustee is prohibited from selling or otherwise liquidating the Collateral unless: