EXHIBIT 4.2
INDENTURE
between
WHOLE AUTO LOAN TRUST 2004-1
as Issuer
and
JPMORGAN CHASE BANK
as Indenture Trustee
Dated as of November 9, 2004
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS, USAGE AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions and Usage.......................................................................2
SECTION 1.2. Incorporation by Reference of Trust Indenture Act...........................................2
ARTICLE II
THE NOTES
SECTION 2.1. Form........................................................................................2
SECTION 2.2. Execution, Authentication and Delivery......................................................3
SECTION 2.3. Temporary Notes.............................................................................4
SECTION 2.4. Tax Treatment...............................................................................5
SECTION 2.5. Registration; Registration of Transfer and Exchange.........................................5
SECTION 2.6. Mutilated, Destroyed, Lost or Stolen Notes..................................................8
SECTION 2.7. Persons Deemed Owners.......................................................................9
SECTION 2.8. Payment of Principal and Interest; Defaulted Interest.......................................9
SECTION 2.9. Cancellation...............................................................................10
SECTION 2.10. Release of Collateral......................................................................10
SECTION 2.11. Book-Entry Notes...........................................................................11
SECTION 2.12. Notices to Clearing Agency.................................................................11
SECTION 2.13. Definitive Notes...........................................................................12
SECTION 2.14. Authenticating Agents......................................................................12
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Principal and Interest..........................................................13
SECTION 3.2. Maintenance of Office or Agency............................................................13
SECTION 3.3. Money for Payments To Be Held in Trust.....................................................13
SECTION 3.4. Existence..................................................................................15
SECTION 3.5. Protection of Indenture Trust Estate.......................................................15
SECTION 3.6. Opinions as to Indenture Trust Estate......................................................16
SECTION 3.7. Performance of Obligations; Servicing of Receivables.......................................17
SECTION 3.8. Negative Covenants.........................................................................19
SECTION 3.9. Annual Statement as to Compliance..........................................................20
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms........................................20
SECTION 3.11. Successor or Transferee....................................................................21
SECTION 3.12. No Other Business..........................................................................22
SECTION 3.13. No Borrowing...............................................................................22
SECTION 3.14. Servicer's Obligations.....................................................................22
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities..........................................22
SECTION 3.16. Capital Expenditures.......................................................................22
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SECTION 3.17. Further Instruments and Acts...............................................................22
SECTION 3.18. Restricted Payments........................................................................22
SECTION 3.19. Notice of Events of Default................................................................23
SECTION 3.20. Removal of Administrator...................................................................23
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture....................................................23
SECTION 4.2. Application of Trust Money.................................................................24
SECTION 4.3. Repayment of Monies Held by Note Paying Agent..............................................24
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default..........................................................................25
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.........................................26
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee..................27
SECTION 5.4. Remedies; Priorities.......................................................................29
SECTION 5.5. Optional Preservation of the Receivables...................................................32
SECTION 5.6. Limitation of Suits........................................................................32
SECTION 5.7. Unconditional Rights of Noteholders To Receive Principal and Interest......................33
SECTION 5.8. Restoration of Rights and Remedies.........................................................33
SECTION 5.9. Rights and Remedies Cumulative.............................................................33
SECTION 5.10. Delay or Omission Not a Waiver.............................................................33
SECTION 5.11. Control by Controlling Class...............................................................33
SECTION 5.12. Waiver of Past Defaults....................................................................34
SECTION 5.13. Undertaking for Costs......................................................................34
SECTION 5.14. Waiver of Stay or Extension Laws...........................................................35
SECTION 5.15. Action on Notes............................................................................35
SECTION 5.16. Performance and Enforcement of Certain Obligations.........................................35
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. Duties of Indenture Trustee................................................................36
SECTION 6.2. Rights of Indenture Trustee................................................................37
SECTION 6.3. Individual Rights of Indenture Trustee.....................................................39
SECTION 6.4. Indenture Trustee's Disclaimer.............................................................39
SECTION 6.5. Notice of Defaults.........................................................................39
SECTION 6.6. Reports by Indenture Trustee to Noteholders................................................39
SECTION 6.7. Compensation and Indemnity.................................................................39
SECTION 6.8. Replacement of Indenture Trustee...........................................................40
SECTION 6.9. Successor Indenture Trustee by Merger......................................................41
SECTION 6.10. Appointment of Co-Indenture Trustee or Separate Indenture Trustee..........................41
SECTION 6.11. Eligibility; Disqualification..............................................................43
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SECTION 6.12. Preferential Collection of Claims Against Issuer...........................................43
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders.....................44
SECTION 7.2. Preservation of Information; Communications to Noteholders.................................44
SECTION 7.3. Reports by Issuer..........................................................................44
SECTION 7.4. Reports by Indenture Trustee...............................................................45
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. Collection of Money........................................................................45
SECTION 8.2. Trust Accounts.............................................................................45
SECTION 8.3. General Provisions Regarding Accounts......................................................49
SECTION 8.4. Release of Indenture Trust Estate..........................................................50
SECTION 8.5. Opinion of Counsel.........................................................................51
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders.....................................51
SECTION 9.2. Supplemental Indentures with Consent of Noteholders........................................52
SECTION 9.3. Execution of Supplemental Indentures.......................................................54
SECTION 9.4. Effect of Supplemental Indenture...........................................................54
SECTION 9.5. Conformity with Trust Indenture Act........................................................54
SECTION 9.6. Reference in Notes to Supplemental Indentures..............................................55
ARTICLE X
PREPAYMENT
SECTION 10.1. Optional Prepayment........................................................................55
SECTION 10.2. Form of Prepayment Notice..................................................................55
SECTION 10.3. Notes Payable on Prepayment Date...........................................................56
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Compliance Certificates and Opinions, etc..................................................56
SECTION 11.2. Form of Documents Delivered to Indenture Trustee...........................................57
SECTION 11.3. Acts of Noteholders........................................................................58
SECTION 11.4. Notices, etc., to Indenture Trustee, Issuer and Rating Agencies............................59
SECTION 11.5. Notices to Noteholders; Waiver.............................................................59
SECTION 11.6. Alternate Payment and Notice Provisions....................................................60
SECTION 11.7. Conflict with Trust Indenture Act..........................................................60
SECTION 11.8. Effect of Headings and Table of Contents...................................................60
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SECTION 11.9. Successors and Assigns.....................................................................60
SECTION 11.10. Separability...............................................................................61
SECTION 11.11. Benefits of Indenture......................................................................61
SECTION 11.12. Legal Holidays.............................................................................61
SECTION 11.13. GOVERNING LAW..............................................................................61
SECTION 11.14. Counterparts...............................................................................61
SECTION 11.15. Recording of Indenture.....................................................................61
SECTION 11.16. Trust Obligation...........................................................................61
SECTION 11.17. No Petition................................................................................62
SECTION 11.18. Subordination Agreement....................................................................62
SECTION 11.19. No Recourse................................................................................62
SECTION 11.20. Inspection.................................................................................62
SECTION 11.21. Representations and Warranties as to the Security Interest of the Indenture
Trustee in the Receivables.................................................................63
EXHIBIT A-1 FORM OF CLASS A-1 NOTE..................................................................A-1-1
EXHIBIT A-2A FORM OF CLASS A-2A NOTE................................................................A-2A-1
EXHIBIT A-2B FORM OF CLASS A-2B NOTE................................................................A-2B-1
EXHIBIT A-3 FORM OF CLASS A-3 NOTE..................................................................A-3-1
EXHIBIT A-4 FORM OF CLASS A-4 NOTE..................................................................A-4-1
EXHIBIT B FORM OF CLASS B NOTE......................................................................B-1
EXHIBIT C FORM OF CLASS C NOTE......................................................................C-1
EXHIBIT D FORM OF CLASS D NOTE......................................................................D-1
EXHIBIT E FORM OF TRANSFEROR CERTIFICATE FOR CLASS D NOTES..........................................E-1
SCHEDULE A Schedule of Receivables..................................................................SA-1
APPENDIX A Definitions and Usage....................................................................AA-1
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INDENTURE, dated as of November 9, 2004 (as from time to time
amended, supplemented or otherwise modified and in effect, this "Indenture")
between WHOLE AUTO LOAN TRUST 2004-1, a Delaware statutory trust, as Issuer,
and JPMORGAN CHASE BANK, a New York banking corporation, as Trustee and not in
its individual capacity (in such capacity, the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and,
subject to the subordination provisions of this Indenture, for the equal and
ratable benefit of the holders of the Issuer's Class A-1 2.15% Asset Backed
Notes (the "Class A-1 Notes"), Class A-2A 2.59% Asset Backed Notes (the "Class
A-2A Notes"), Class A-2B 4.68% Asset Backed Notes (the "Class A-2B Notes" and
together with the Class A-2A Notes, the "Class A-2 Notes"), Class A-3 2.96%
Asset Backed Notes (the "Class A-3 Notes"), Class A-4 3.26% Asset Backed Notes
(the "Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, the "Class A Notes"), Class B 3.13% Asset
Backed Notes (the "Class B Notes"), Class C 3.37% Asset Backed Notes (the
"Class C Notes") and Class D 5.60% Asset Backed Notes (the "Class D Notes"
and, together with the Class A Notes, the Class B Notes, and the Class C
Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing
Date, as Indenture Trustee for the benefit of the Noteholders, all of the
Issuer's right, title and interest in, to and under the following property,
whether now owned or existing or hereafter acquired or arising: (a) the
Receivables; (b) monies received thereunder on or after the applicable Cut-off
Date (other than the portion of any Obligor payment related to the interest
accrued on each Receivable up to its last scheduled payment date prior to
October 1, 2004); (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) proceeds with respect to the Receivables from
claims on any theft, physical damage, credit life, credit disability, or other
insurance policies covering Financed Vehicles or Obligors; (e) the Receivable
Files; (f) the Trust Accounts and all amounts, securities, investments,
investment property and other property deposited in or credited to any of the
foregoing, all security entitlements relating to the foregoing and all
proceeds thereof; (g) the Sale and Servicing Agreement; (h) payments and
proceeds with respect to the Receivables; (i) the ALFT II Receivables Purchase
Agreement, the XXXX III Receivables Purchase Agreement and the ALFT IV
Receivables Purchase Agreement; (j) all property (including the right to
receive Liquidation Proceeds) securing a Receivable (other than a Receivable
purchased by the Servicer or a Receivables Servicer or repurchased by the
Depositor); (k) rebates of premiums and other amounts relating to insurance
policies and other items financed under the Receivables in effect as of the
Cut-off Date; and (l) all present and future claims, demands, causes of action
and choses in action in respect of any or all of the foregoing and all
payments on or under and all proceeds of every kind and nature whatsoever in
respect of any or all of the foregoing, including all proceeds of the
conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other forms
of obligations and receivables, instruments and other property which at any
time constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction, except
as provided in the Indenture, and to secure compliance with the provisions of
this Indenture, all as provided in this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the
Noteholders, acknowledges such Grant, accepts the trusts under this Indenture
in accordance with the provisions of this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that
the interests of the Noteholders may be adequately and effectively protected.
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, which also
contains rules as to usage that shall be applicable herein.
SECTION 1.2. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" shall mean the Notes.
"indenture security holder" shall mean a Noteholder.
"indenture to be qualified" shall mean this Indenture.
"indenture trustee" or "institutional trustee" shall mean the
Indenture Trustee.
"obligor" on the indenture securities shall mean the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in the
TIA, defined by TIA reference to another statute or defined by Commission rule
have the meaning assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.1. Form. (a) The Class A-1 Notes, the Class A-2A
Notes, the Class A-2B Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes, the Class C Notes and the Class D Notes, together with the
Indenture Trustee's certificates of authentication, shall be in substantially
the form set forth in Exhibit X-0, Xxxxxxx X-0X, Exhibit X-0X, Xxxxxxx X-0,
Exhibit A-4, Exhibit B, Exhibit C and Exhibit D, respectively, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and
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may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may, consistently herewith, be
determined by the officers executing such Notes, as evidenced by their
execution thereof. Any portion of the text of any Note may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Note.
(b) The definitive Notes shall be typewritten, printed, lithographed
or engraved or produced by any combination of these methods (with or without
steel engraved borders), all as determined by the officers executing such
Notes, as evidenced by their execution of such Notes.
(c) Each Note shall be dated the date of its authentication. The
terms of the Notes set forth in Exhibit X-0, Xxxxxxx X-0X, Exhibit X-0X,
Xxxxxxx X-0, Exhibit A-4, Exhibit B, Exhibit C and Exhibit D, are part of the
terms of this Indenture and are incorporated herein by reference.
(d) The Issuer in issuing the Notes may use "CUSIP," "CINS" and
"ISIN" numbers (if then generally in use), and the Indenture Trustee shall
use CUSIP, CINS and ISIN numbers, as the case may be, in notices as a
convenience to Noteholders and no representation shall be made as to the
correctness of such numbers either as printed on the Notes or as contained in
a notice to Noteholders.
SECTION 2.2. Execution, Authentication and Delivery. (a) The
Notes shall be executed on behalf of the Issuer by any of its Authorized
Officers. The signature of any such Authorized Officer on the Notes may be
manual or facsimile.
(b) Notes bearing the manual or facsimile signature of individuals
who were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.
(c) The Indenture Trustee shall, upon Issuer Order, authenticate
and deliver the Notes for original issue in the Classes and initial aggregate
principal amounts as set in the table below.
Initial Aggregate
Class Principal Amount
----- ----------------
Class A-1 Notes $548,000,000
Class A-2A Notes $608,000,000
Class A-2B Notes $25,000,000
Class A-3 Notes $432,000,000
Class A-4 Notes $309,720,000
Class B Notes $50,333,000
Class C Notes $20,133,000
Class D Notes $55,366,000
The aggregate principal amount of Class A-1 Notes, the Class A-2A Notes, the
Class A-2B Notes, the Class A-3 Notes, Class A-4 Notes, Class B Notes, Class
C Notes and Class D Notes, Outstanding at any time may not exceed those
respective amounts except as provided in Section 2.6.
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(d) The Class A-1 Notes, the Class A-2A Notes, the Class A-2B
Notes, the Class A-3 Notes, Class A-4 Notes, Class B Notes and Class C 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 Class D Notes shall be
issuable as Book-Entry Notes in minimum denominations of $25,000 and in
integral multiples of $1,000 in excess thereof.
(e) The Class D Notes initially sold in the United States or to
U.S. Persons in reliance on Rule 144A under the Securities Act will be issued
as Book-Entry Notes in the form of one or more permanent global notes, in
definitive, fully registered form without interest coupons, deposited with,
and registered in the name of, the Note Depository (the "Rule 144A Global
Notes"). The Class D Notes sold to non-U.S. Persons in offshore transactions
in reliance on Regulation S will be issued as Book-Entry Notes and initially
represented by one or more temporary global notes, respectively, in
definitive, fully registered form without coupons deposited with, and
registered in the name of, the Note Depository (the "Temporary Regulation S
Global Notes"). On the Exchange Date, interests in the Temporary Regulation S
Global Notes will, upon certification that the beneficial interests in such
Temporary Regulation S Global Notes are owned by persons who are not U.S.
Persons, be exchangeable for interests in permanent global notes, in
definitive, fully registered form without interest coupons (the "Regulation S
Global Notes" and, together with the Rule 144A Global Notes and the Temporary
Regulation S Global Notes, the "Global Notes"), deposited with the Indenture
Trustee as custodian for, and registered in the name of, a nominee of the
Note Depository for the respective accounts of the operator of the Euroclear
system ("Euroclear") and Clearstream Banking, societe anonyme ("Clearstream"
and, together with Euroclear, each a "Clearance System"). The Global Notes
shall be exchangeable to the extent provided in Section 2.5 below.
(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 signatories, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
SECTION 2.3. Temporary Notes. (a) Pending the preparation of
definitive Notes, the Issuer may execute, and upon receipt of an Issuer Order
the Indenture Trustee shall authenticate and deliver, temporary Notes that
are printed, lithographed, typewritten, mimeographed or otherwise produced,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such variations not inconsistent with the terms of this
Indenture as the officers executing the temporary Notes may determine, as
evidenced by their execution of such temporary Notes.
If temporary Notes are issued, the Issuer shall cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive
Notes upon surrender of the temporary Notes at the office or agency of the
Issuer to be maintained as provided in Section 3.2, without charge to the
Noteholder. Upon surrender for cancellation of any one or more temporary
Notes, the Issuer shall execute, and the Indenture Trustee shall authenticate
and deliver in exchange therefor, a like principal amount of definitive Notes
of authorized denominations. Until so exchanged, the
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temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as Notes.
SECTION 2.4. Tax Treatment. The Issuer has entered into this
Indenture, and the Notes shall be issued, with the intention that, for
federal, State and local income and franchise tax purposes, the Notes shall
qualify as indebtedness of the Issuer secured by the Indenture Trust Estate.
The Issuer, by entering into this Indenture, and each Noteholder, by its
acceptance of a Note (and each Note Owner by its acceptance of an interest in
the applicable Book-Entry Note), agree to treat the Notes for federal, State
and local income and franchise tax purposes as indebtedness of the Issuer.
SECTION 2.5. Registration; Registration of Transfer and
Exchange. (a) The Issuer shall cause to be kept a register (the "Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Notes and the
registration of transfers of Notes. The Indenture Trustee initially shall be
the "Note Registrar" for the purpose of registering Notes and transfers of
Notes as herein provided. Upon any resignation of any Note Registrar, the
Issuer shall promptly appoint a successor or, if it elects not to make such
an appointment, assume the duties of Note Registrar. If a Person other than
the Indenture Trustee is appointed by the Issuer as Note Registrar, (i) the
Issuer shall give the Indenture Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and any change in the
location, of the Note Register, (ii) the Indenture Trustee shall have the
right to inspect the Note Register at all reasonable times and to obtain
copies thereof, and (iii) the Indenture Trustee shall have the right to rely
upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Noteholders and the
principal amounts and number of such Notes.
(b) 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(a) of the UCC are met, an Authorized
Officer of the Issuer shall execute, and the Indenture Trustee shall
authenticate and the Noteholder shall obtain from the Indenture Trustee, in
the name of the designated transferee or transferees, one or more new Notes
of the same Class in any authorized denomination, of a like aggregate
principal amount.
(c) Subject to subsection (i) below, 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(a) 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
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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 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 Note Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 2.3 or 9.6 not
involving any transfer.
(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 Payment Date for any
payment with respect to such Note.
(h) No Note may be purchased with plan assets of a Plan if the
Issuer, a Seller, the Servicer, the Owner Trustee, the Indenture Trustee, any
Underwriter or any of their respective affiliates (i) has investment or
administrative discretion with respect to those plan assets; (ii) has
authority or responsibility to give, or regularly gives, investment advice
with respect to such plan assets, for a fee and pursuant to an agreement or
understanding that the advice will serve as a primary basis of investment
decisions with respect to those plan assets, and will be based on the
particular investment needs for the Plan, or (iii) is an employer maintaining
or contributing to the Plan.
(i) No Class D Note may be sold or transferred (including, without
limitation, by pledge or hypothecation) unless such sale or transfer is
exempt from the registration requirements of the Securities Act and is exempt
from the registration requirements under applicable state securities laws. No
Class D Note may be offered, sold or delivered at any time within the United
States or to, or for the benefit of, U.S. Persons except in accordance with
Rule 144A of the Securities Act. The Class D Notes may be sold or resold, as
the case may be, in offshore transactions to non-U.S. Persons in reliance on
Regulation S under the Securities Act.
The Indenture Trustee shall not be responsible for ascertaining
whether any transfer complies with, or for otherwise monitoring or
determining compliance with, the requirements or terms of the Securities Act,
applicable state securities laws, ERISA or the Code; except that if a
certificate is specially required by the terms of this Section 2.5 to be
provided to the Indenture Trustee by a Noteholder or Noteholder's prospective
transferee, the Indenture Trustee shall examine the same to determine whether
it conforms substantially on its face to the applicable requirements of this
Section 2.5.
So long as a Global Note remains outstanding and is held by or on
behalf of the Depository, transfers of such Global Note, in whole or in part,
shall only be made in accordance with this Section 2.5(i).
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(i) Subject to clause (ii) and (iii) of this Section 2.5(i),
transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to nominees of the Depository
or to a successor of the Depository or such successor's nominee.
(ii) Rule 144A Global Note to Temporary Regulation S Global
Note or Regulation S Global Note. If a holder of a beneficial
interest in a Rule 144A Global Note wishes at any time to exchange
its interest in such Rule 144A Global Note for an interest in the
corresponding Temporary Regulation S Global Note or Regulation S
Global Note, or to transfer its interest in such Rule 144A Global
Note to a Person who wishes to take delivery thereof in the form of
an interest in the corresponding Temporary Regulation S Global Note
or Regulation S Global Note, such holder, provided such holder or the
transferee, as applicable, is not a U.S. person, may, subject to the
rules and procedures of the Note Depository, exchange or transfer
such interest for an equivalent beneficial interest in the
corresponding Temporary Regulation S Global Note or Regulation S
Global Note. Upon receipt by the Note Registrar of (A) instructions
given in accordance with the Note Depository's procedures from a
Participant directing the Note Registrar to credit or cause to be
credited a beneficial interest in the corresponding Temporary
Regulation S Global Note or Regulation S Global Note, but not less
than the minimum denomination applicable to such holder's Notes, in
an amount equal to the beneficial interest in the Rule 144A Global
Note to be exchange or transferred, (B) a written order given in
accordance with the Note Depository's procedures containing
information regarding the participant account of the Note Depository
and the Euroclear or Clearstream account to be credited with such
increase and (C) a transferor certificate substantially in the form
of Exhibit E hereto signed by the transferor, then the Note Registrar
shall instruct the Note Depository to reduce the principal amount of
the Rule 144A Global Note and to increase the principal amount of the
Temporary Regulation S Global Note or Regulation S Global Note, as
the case may be, by the aggregate principal amount of the beneficial
interest in the Rule 144A Global Note to be exchanged, and to credit
to the securities account of the Person specified in such
instructions a beneficial interest in the corresponding Temporary
Regulation S Global Note or Regulation S Global Note equal to the
reduction in the principal amount of the Rule 144A Global Note. In
the event of any such transfer, each of the transferor and the
transferee shall be deemed to have made the representations and
warranties set forth in the form of Class D Note attached as Exhibit
D hereto. The holder of the beneficial interest in any such Global
Note desiring to effect such transfer shall, and does hereby agree
to, indemnify the Indenture Trustee and the Issuer against any
liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
(iii) Temporary Regulation S Global Note or Regulation S
Global Note to Rule 144A Global Note. If a holder of a beneficial
interest in a Temporary Regulation S Global Note or Regulation S
Global Note wishes at any time to exchange its interest in such
Temporary Regulation S Global Note or Regulation S Global Note for an
interest in the corresponding Rule 144A Global Note or to transfer
its interest in such Temporary Regulation S Global Note or Regulation
S Global Note to a Person who wishes to take delivery thereof in the
form of an interest in the corresponding Rule 144A Global Note, such
holder may, subject to the rules and procedures of Euroclear,
Clearstream and/or the Note Depository, as the case may be, exchange
or transfer such interest for an equivalent
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beneficial interest in the corresponding Rule 144A Global Note.
Upon receipt by the Note Registrar of (x) instructions from
Euroclear, Clearstream and/or the Note Depository, as the case may
be, directing the Note Registrar to cause to be credited a
beneficial interest in the corresponding Rule 144A Global Note in
an amount equal to the beneficial interest in such Temporary
Regulation S Global Note or Regulation S Global Note, but not less
than the minimum denomination applicable to such holder's Notes, to
be exchanged or transferred, such instructions to contain
information regarding the Participant account with the Note
Depository to be credited with such increase and (y) a transferor
certificate substantially in the form of Exhibit E signed by the
transferor, then the Note Registrar will instruct the Note
Depository to reduce, or cause to be reduced, the Temporary
Regulation S Global Note or Regulation S Global Note by the
aggregate principal amount of the beneficial interest in the
Temporary Regulation S Global Note or Regulation S Global Note to
be transferred or exchanged and the Note Registrar shall instruct
the Note Depository, concurrently with such reduction, to credit or
cause to be credited to the securities account of the Person
specified in such instructions a beneficial interest in the
corresponding Rule 144A Global Note equal to the reduction in the
principal amount of the Temporary Regulation S Global Note or
Regulation S Global Note. In the event of any such transfer, each
of the transferor and the transferee shall be deemed to have made
the representations and warranties set forth in the form of Class D
Note attached as Exhibit D hereto. The holder of the beneficial
interest in any such Global Note desiring to effect such transfer
shall, and does hereby agree to, indemnify the Indenture Trustee
and the Issuer against any liability that may result if the
transfer is not so exempt or is not made in accordance with such
federal and state laws.
SECTION 2.6. Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the Indenture
Trustee or the Note Registrar, 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
Prepayment 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
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provided therefor to the extent of any loss, damage, cost or expense incurred
by the Issuer or the Indenture Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this Section
2.6, the Issuer may require the payment by the Noteholder of such Note of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other reasonable expenses (including the
fees and expenses of the Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section 2.6 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Issuer, whether or not
the mutilated, destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly
issued hereunder.
(d) The provisions of this Section 2.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.7. Persons Deemed Owners. Prior to due presentment
for registration of transfer of any Note, the Issuer, the Indenture Trustee
and any agent of the Issuer or the Indenture Trustee may treat the Person in
whose name any Note is registered (as of the day of determination) as the
owner of such Note for the purpose of receiving payments of principal of and
interest, if any, on such Note and for all other purposes whatsoever, whether
or not such Note be overdue, and none of the Issuer, the Indenture Trustee or
any agent of the Issuer or the Indenture Trustee shall be affected by notice
to the contrary.
SECTION 2.8. Payment of Principal and Interest; Defaulted
Interest.
(a) The Class A-1 Notes, the Class A-2A Notes, the Class A-2B
Notes, the Class A-3 Notes, Class A-4 Notes, the Class B Notes, the Class C
Notes and the Class D Notes shall accrue interest at the Class A-1 Rate, the
Class A-2A Rate, the Class A-2B Rate, the Class A-3 Rate, the Class A-4 Rate,
the Class B Rate, the Class C Rate and the Class D Rate, respectively, as set
forth in Exhibit X-0, Xxxxxxx X-0X, Exhibit X-0X, Xxxxxxx X-0, Exhibit A-4,
Exhibit B, Exhibit C and Exhibit D, respectively, and such interest shall be
due and payable on each Payment Date as specified therein, subject to Section
3.1. Any installment of interest or principal, if any, payable on any Note
that is punctually paid or duly provided for by the Issuer on the applicable
Payment 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 Payment Date and
such Noteholder's Notes in the aggregate evidence a denomination of not less
than $1,000,000, or, if not, by check mailed first-class 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
9
by such nominee, and except for the final installment of principal payable
with respect to such Note on a Payment Date, Prepayment Date or the
applicable Final Scheduled Payment 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 Payment Date as provided in the forms of Notes set forth in Exhibit X-0,
Xxxxxxx X-0X, Exhibit X-0X, Xxxxxxx X-0, Exhibit A-4, Exhibit B, Exhibit C
and Exhibit D. 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 principal amount of the Controlling Class
have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2. All principal payments on each Class of Notes shall
be made pro rata to the Noteholders of such Class entitled thereto. The
Indenture Trustee shall notify the Person in whose name a Note is registered
at the close of business on the Record Date preceding the Payment 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 Payment 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
Payment Date following such default. The Issuer shall pay such defaulted
interest to the Persons who are Noteholders on the Record Date for such
following Payment Date.
SECTION 2.9. Cancellation. All Notes surrendered for payment,
registration of transfer or exchange 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
10
under TIA Section 304(d) modifying the Issuer's obligations under TIA
Sections 314(c) and 314(d)(1), subject to Section 11.1 and the terms of the
Basic Documents, the Indenture Trustee shall release property from the lien
of this Indenture in accordance with the conditions and procedures set forth
in such exemptive order.
SECTION 2.11. Book-Entry Notes. The Notes, upon original
issuance, shall be issued in the form of typewritten Notes representing the
Book-Entry Notes, to be delivered to The Depository Trust Company, the
initial Clearing Agency, by, or on behalf of, the Issuer. The Book-Entry
Notes shall be registered initially on the Note Register in the name of Cede
& Co., the nominee of the initial Clearing Agency, and no Note Owner thereof
shall receive a Definitive Note (as defined below) representing such Note
Owner's interest in such Note, except as provided in Section 2.13. Unless and
until definitive, fully registered Notes (the "Definitive Notes") have been
issued to such Note Owners pursuant to Section 2.13:
(i) the provisions of this Section 2.11 shall be in full force
and effect;
(ii) the Note Registrar and the Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on
the Book-Entry Notes and the giving of instructions or directions
hereunder) as the sole Noteholder, and shall have no obligation to
the Note Owners;
(iii) to the extent that the provisions of this Section 2.11
conflict with any other provisions of this Indenture, the
provisions of this Section 2.11 shall control;
(iv) the rights of Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by
law and agreements between such Note Owners and the Clearing Agency
and/or the Clearing Agency Participants pursuant to the Security
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 principal amount of the
Notes Outstanding (or any Class thereof) 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) 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
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to Noteholders of Book-Entry Notes to the Clearing Agency, and shall have no
obligation to such Note Owners.
SECTION 2.13. Definitive Notes. With respect to any Class or
Classes of Book-Entry Notes, if (i) the Administrator advises the Indenture
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to such Class of
Book-Entry Notes and the Administrator is unable to locate a qualified
successor or (ii) 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
principal amount 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 fully
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. Notwithstanding anything to the
contrary contained herein, holders of a beneficial interest in a Temporary
Regulation S Global Note or Regulation S Global Note shall not be entitled to
receive Definitive Notes representing such beneficial interest until the
later of (i) the Exchange Date and (ii) the date on which Definitive Notes
are issued in accordance with this Section 2.13.
SECTION 2.14. Authenticating Agents. (a) The Indenture Trustee,
at the expense of the Administrator, 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
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such Authenticating Agent and the Owner Trustee. Upon receiving such notice
of resignation or upon such a termination, the Indenture Trustee may appoint
a successor Authenticating Agent and shall give written notice of any such
appointment to the Owner Trustee.
(d) The Administrator agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services. The provisions of
Sections 2.9 and 6.4 shall be applicable to any Authenticating Agent.
ARTICLE III
COVENANTS
SECTION 3.1. Payment of Principal and Interest. The Issuer shall
duly and punctually pay the principal of and interest, if any, on the Notes
in accordance with the terms of the Notes and this Indenture. Without
limiting the foregoing on each Payment Date the Issuer shall cause to be paid
pursuant to Section 8.2(d) all amounts on deposit in the Collection Account
and the Principal Distribution Account with respect to the Collection Period
preceding such Payment Date and deposited therein pursuant to the Sale and
Servicing Agreement. Amounts properly withheld under the Code by any Person
from a payment to any Noteholder of interest and/or principal shall be
considered as having been paid by the Issuer to such Noteholder for all
purposes of this Indenture.
SECTION 3.2. Maintenance of Office or Agency. The Issuer shall
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Notes may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of
the Notes and this Indenture may be served. The Issuer hereby initially
appoints the Indenture Trustee to serve as its agent for the foregoing
purposes. The Issuer shall give prompt written notice to the Indenture
Trustee of the location, and of any change in the location, of any such
office or agency. If, at any time, the Issuer shall fail to maintain any such
office or agency or shall fail to furnish the Indenture Trustee with the
address thereof, such surrenders, notices and demands may be made or served
at the Corporate Trust Office, and the Issuer hereby appoints the Indenture
Trustee as its agent to receive all such surrenders, notices and demands.
SECTION 3.3. Money for Payments To Be Held in Trust. (a) As
provided in Sections 8.2 and 5.4(b), all payments of amounts due and payable
with respect to any Notes that are to be made from amounts withdrawn from the
Trust Accounts 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 for payments of Notes shall be paid over to the Issuer, except as
provided in this Section 3.3.
(b) On or before the Business Day preceding each Payment Date and
Prepayment Date, the Issuer shall deposit or cause to be deposited in the
Collection Account an aggregate sum sufficient to pay the amounts then
becoming due under the Notes, such sum to be held in trust for the benefit of
the Persons entitled thereto, and (unless the Note Paying Agent is the
Indenture Trustee) shall promptly notify the Indenture Trustee of its action
or failure so to act.
13
(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 written direction of the Issuer cause to be published once,
in a newspaper published in the English language,
14
customarily published on each Business Day and of general circulation in The
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than thirty (30) days from
the date of such publication, any unclaimed balance of such money then
remaining shall be repaid to the Issuer. The Indenture Trustee shall also
adopt and employ, at the expense and written 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 statutory 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. (a) The Issuer
shall from time to time execute and deliver all such supplements and
amendments hereto and all such financing statements, continuation statements,
instruments of further assurance and other instruments, and shall take such
other action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more
effectively the purposes hereof;
(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Indenture Trust Estate
and the rights of the Indenture Trustee and the Noteholders in such
Indenture Trust Estate against the claims of all Persons.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement
or other instrument required to be executed pursuant to this Section 3.5 that
has been prepared by the Servicer and delivered to the Indenture Trustee for
execution; provided, however, that the Indenture Trustee shall be under no
obligation to prepare or file any such financing statement, continuation
statement or other instrument required to be executed pursuant to this
Section 3.5.
(b) The Issuer hereby represents and warrants that, as to the
Collateral pledged to the Indenture Trustee for the benefit of the
Noteholders, on the Closing Date:
15
(i) the Indenture creates a valid and continuing security
interest (as defined in the applicable UCC) in the Collateral that
is in existence in favor of the Indenture Trustee, which security
interest is prior to all other liens, and is enforceable as such as
against creditors of and purchasers from the Issuer;
(ii) the Receivables constitute "tangible chattel paper" under
the applicable UCC;
(iii) the Issuer owns and has good and marketable title to
such Collateral free and clear of any liens, claims or encumbrances
of any Person, other than the interest Granted under this
Indenture;
(iv) the Issuer has acquired its ownership in such Collateral
in good faith without notice of any adverse claim;
(v) the Trust Accounts are not in the name of any person other
than the Indenture Trustee and the Issuer has not consented to the
bank maintaining the Trust Accounts to comply with the instructions
of any person other than the Indenture Trustee;
(vi) the Issuer has not assigned, pledged, sold, granted a
security interest in or otherwise conveyed any interest in such
Collateral (or, if any such interest has been assigned, pledged or
otherwise encumbered, it has been released) other than interests
Granted pursuant to this Indenture;
(vii) the Issuer has caused or will have caused, within ten
days after the Closing Date, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdiction under the applicable law in order to perfect the
security interest Granted hereunder in the Receivables;
(viii) other than its Granting hereunder, the Issuer has not
Granted such 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 such Collateral other than the
financing statement in favor of the Indenture Trustee, and the
Issuer is not aware of any judgment or tax lien filing against it;
and
(ix) the information relating to such Collateral set forth in
the Schedule of Receivables (attached hereto as Schedule A) is
correct.
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.
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(b) On or before April 30 in each calendar year, beginning on April
30, 2005, 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 principal
amount of each Class of Notes then Outstanding, voting separately. For the
avoidance of doubt, and notwithstanding anything in this Indenture to the
contrary, the Trust Agreement may be amended from time to time by the
Depositor and the Owner Trustee, with prior written notice to the Rating
Agencies and the Indenture Trustee and with the consent of holders of all of
the Certificates but without the consent of any Noteholder, to create one or
more classes of certificates and amend the rights of the then current
Certificates; provided that an Opinion of Counsel shall be furnished to the
Indenture Trustee and the Owner Trustee to the effect that such amendment (A)
will not materially adversely affect the federal income taxation of any
outstanding Note or Certificate (unless the holder thereof consents to such
new treatment) and (B) will not cause the Issuer to be
17
treated as an association (or publicly traded partnership) taxable as a
corporation for federal income tax purposes.
(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 promptly 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 promptly obtain a new servicer as
the Successor Servicer under the Sale and Servicing Agreement. Any Successor
Servicer (other than the Indenture Trustee or an Affiliate thereof) 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
automobile receivables and whose appointment as Successor Servicer satisfies
the Rating Agency Condition 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 its predecessor 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).
Notwithstanding anything herein or in the Sale and Servicing Agreement to the
contrary, in no event shall the Indenture Trustee be liable for any Servicing
Fee or for any differential in the amount of the Servicing Fee paid hereunder
and the amount necessary to induce any Successor Servicer to act as Successor
Servicer under the Basic Documents and the transactions set forth or provided
for therein. 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
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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 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 in writing. As soon as a Successor Servicer is
appointed by the Issuer, the Issuer shall notify the Indenture Trustee in
writing 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 principal amount of the Notes
Outstanding, amend, modify, waive, supplement, terminate or surrender, or
agree to any amendment, modification, supplement, termination, waiver or
surrender of, the terms of any Collateral (except to the extent otherwise
provided in the Sale and Servicing Agreement or the other Basic Documents).
SECTION 3.8. Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture, the Trust
Agreement or the Sale and Servicing Agreement, sell, transfer,
exchange or otherwise dispose of any of the properties or assets of
the Issuer, including those included in the Indenture Trust Estate;
(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
19
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 in all material respects
with all conditions and covenants under this Indenture throughout
such year (or since the Closing Date in the case of the first such
Officer's Certificate), or, if there has been a default in any
material respect in its compliance with any such condition or
covenant, specifying each such default known to such Authorized
Officer and the nature and status thereof.
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other Person,
unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized
and existing under the laws of the United States of America or any
State and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual payment
of the principal of and interest on all Notes and the performance
or observance of every agreement and covenant of this Indenture on
the part of the Issuer to be performed or observed, all as provided
herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to
the effect that such transaction will not have any material adverse
tax consequence to the Issuer, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been taken;
and
(vi) the Issuer shall have delivered to the 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
20
herein provided for relating to such transaction have been complied
with (including any filing required by the Exchange Act).
(b) Other than as specifically contemplated by the Basic Documents,
the Issuer shall not convey or transfer any of its properties or assets,
including those included in the Indenture Trust Estate, to any Person,
unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of
which is hereby restricted shall (A) be a United States citizen or
a Person organized and existing under the laws of the United States
of America or any State, (B) expressly assumes, by an indenture
supplemental hereto, executed and delivered to the Indenture
Trustee, in form satisfactory to the Indenture Trustee, the due and
punctual payment of the principal of and interest on all Notes and
the performance or observance of every agreement and covenant of
this Indenture on the part of the Issuer to be performed or
observed, all as provided herein, (C) expressly agrees by means of
such supplemental indenture that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the
rights of Noteholders, (D) unless otherwise provided in such
supplemental indenture, expressly agrees to indemnify, defend and
hold harmless the Issuer against and from any loss, liability or
expense arising under or related to this Indenture and the Notes,
and (E) expressly agrees by means of such supplemental indenture
that such Person (or if a group of Persons, then one specified
Person) shall make all filings, if any, with the Commission (and
any other appropriate Person) required by the Exchange Act in
connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to
the effect that such transaction will not have any material adverse
tax consequence to the Issuer, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the lien and
security interest created by this Indenture shall have been taken;
and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating
that such conveyance or transfer and such supplemental indenture
comply with this Article III and that all conditions precedent
herein provided for relating to such transaction have been complied
with (including any filing required by the Exchange Act).
SECTION 3.11. Successor or Transferee. (a) Upon any consolidation
or merger of the Issuer in accordance with Section 3.10(a), the Person formed
by or surviving such consolidation or merger (if other than the Issuer) shall
succeed to, and be substituted for, and may exercise
21
every right and power of, the Issuer under this Indenture with the same
effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties
of the Issuer pursuant to Section 3.10(b), the Issuer shall be released from
every covenant and agreement of this Indenture to be observed or performed on
the part of the Issuer with respect to the Notes immediately upon the
delivery of written notice to the Indenture Trustee stating that the Issuer
is to be so released.
SECTION 3.12. No Other Business. The Issuer shall not engage in
any business other than financing, acquiring, owning and pledging the
Receivables in the manner contemplated by this Indenture and the Basic
Documents and activities incidental thereto.
SECTION 3.13. No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes and the Certificates.
SECTION 3.14. Servicer's Obligations. The Issuer shall cause the
Servicer to comply with the Sale and Servicing Agreement, including, without
limitation, Sections 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14 and 4.7 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. The Issuer shall
enter into the Deposit Control Agreements. For the avoidance of doubt and
notwithstanding anything to the contrary herein, the Issuer and the Indenture
Trustee, without any action required by any other Person, shall enter into
amendments or other modifications to any Deposit Account Agreement and the
Data Administration Agreement to reflect the sale of receivables by a party
thereto to a Person who becomes a party to any such agreement and whose
receivables are subject thereto.
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
22
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 Receivables Servicers, the Administrator, the Owner Trustee,
the Indenture Trustee, the Noteholders and the Certificateholders as
contemplated by, and to the extent funds are available for such purpose
under, this Indenture and the other Basic Documents and (y) payments to the
Indenture Trustee pursuant to Section 2(a)(ii) of the Administration
Agreement. The Issuer shall not, directly or indirectly, make payments to or
distributions from the Collection Account or the Principal Distribution
Account except in accordance with this Indenture and the other Basic
Documents.
SECTION 3.19. Notice of Events of Default. The Issuer shall give
the Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder and of each default on the part of any party to
the Sale and Servicing Agreement with respect to any of the provisions
thereof.
SECTION 3.20. Removal of Administrator. For so long as any Notes
are Outstanding, the Issuer shall not remove the Administrator without cause
unless the Rating Agency Condition shall have been satisfied in connection
therewith.
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, protections 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
23
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
Payment Date or Prepayment Date (if Notes shall have been
called for prepayment 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 and under any of the other Basic
Documents by the Issuer; and
(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.
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. Application of Trust Money. All monies deposited
with the Indenture Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Note Paying Agent,
as the Indenture Trustee may determine, to the Noteholders of the particular
Notes for the payment or redemption of which such monies have been deposited
with the Indenture Trustee, of all sums due and to become due thereon for
principal and interest, but such monies need not be segregated from other
funds except to the extent required herein or in the Sale and Servicing
Agreement or required by law.
SECTION 4.3. 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.
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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 Class when the same becomes due and payable on a
Payment Date, and such default shall continue for a period of
thirty-five (35) 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 in any material
respect of any 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) that materially and adversely affects the
Noteholders and such default shall continue for a period of 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 holders of Notes evidencing
not less than 25% of the aggregate outstanding principal amount of
the Controlling Class, a written notice specifying such default and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(iv) any representation or warranty of the Issuer made in this
Indenture or in any certificate 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 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
holders of Notes evidencing not less than 25% of the aggregate
outstanding principal amount of the Controlling Class, a written
notice specifying such default and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(v) 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
25
affairs, and such decree or order shall remain unstayed and in
effect for a period of sixty (60) consecutive days; or
(vi) 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, 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 holders of Notes evidencing not less
than a majority of the Outstanding Amount of the Controlling 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 Outstanding Amount of such Notes, together
with accrued and unpaid interest thereon through the date of acceleration,
shall become immediately due and payable.
(b) At any time after a declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the amount due has
been obtained by the Indenture Trustee as hereinafter provided in this
Article V, the holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Controlling Class, by written notice to the Issuer
and the Indenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on all
Notes and all other amounts that would then be due hereunder
or upon such Notes if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses and
disbursements of the Indenture Trustee and its agents and
counsel and the reasonable compensation, expenses and
disbursements of the Owner Trustee and its agents and counsel;
and
(ii) all Events of Default, other than the nonpayment of
principal of the Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section
5.12.
26
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,
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
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documents as may be necessary or advisable in order to have the
claims of the Indenture Trustee (including any claim for reasonable
compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances and disbursements made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result
of negligence or bad faith) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Noteholders in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any monies or other property
payable or deliverable on any such claims and to pay all amounts
received with respect to the claims of the Noteholders and of the
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Indenture Trustee or the Noteholders allowed in any
judicial proceedings relative to the Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay
to the Indenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Indenture Trustee, each predecessor Indenture
Trustee and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances and disbursements made, by
the Indenture Trustee and each predecessor Indenture Trustee, except as a
result of negligence or bad faith, and any other amounts due the Indenture
Trustee pursuant to Section 6.7.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Noteholder
or to authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture
Trustee without the possession of any of the Notes or the production thereof
in any trial or other Proceedings relative thereto, and any such action or
Proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents,
attorneys and counsel, shall be for the ratable benefit of the Noteholders in
respect of which such judgment has been recovered.
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(g) In any Proceedings brought by the Indenture Trustee (and also
any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Noteholders, and it shall not be
necessary to make any Noteholder a party to any such Proceedings.
SECTION 5.4. Remedies; Priorities. (a) If an Event of Default
shall have occurred and be continuing, the Indenture Trustee may, or at the
written direction of Noteholders of Notes evidencing not less than a majority
of the Outstanding Amount of the Controlling Class, shall, do one or more of
the following (subject to Section 5.5 and 6.2(f)):
(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 following an Event of Default, other than Event of
Default described in Section 5.1(i) or (ii), unless, (i) with respect to any
Event of Default described in Section 5.1(v) or (vi):
(A) the holders of Notes evidencing 100% of the
Outstanding Amount of the Controlling Class (excluding Notes
held by a Seller, the Servicer or any of their respective
Affiliates) consent thereto; or
(B) the proceeds of such sale or liquidation are
sufficient to pay in full the principal of and the accrued
interest on the Outstanding Notes at the date of such sale; or
(C) the Indenture Trustee determines based solely on an
analysis provided by an independent accounting firm which
shall not be at the expense of the Indenture Trustee 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 obtains the consent of holders of
Notes evidencing not less than 66?% of the Outstanding Amount
of the Controlling Class; or
(ii) with respect to an Event of Default described in Section
5.1(iii) or (iv):
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(A) the holders of all Outstanding Notes consent thereto;
or
(B) the proceeds of such sale or liquidation are
sufficient to pay in full the principal of and accrued
interest on the Outstanding Notes.
In determining such sufficiency or insufficiency with respect to
clauses (i)(B) and (ii)(B) 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 of this Agreement
or Section 4.5 of the Sale and Servicing Agreement, if the Indenture Trustee
collects any money or property pursuant to liquidations of the Receivables in
accordance with this Article V, it shall pay out the money or property in the
following order of priority:
(i) first, to the Servicer for due and unpaid Servicing Fees;
(ii) second, to the Indenture Trustee and the Owner Trustee
for all amounts due for fees, expenses and indemnification under
Section 6.7 of this Agreement and Article VII of the Trust
Agreement, respectively, and not previously paid;
(iii) third, in the following order of priority:
(A) to the Class A Noteholders for amounts due and unpaid
on the Notes in respect of interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Class A Notes in respect of interest;
(B) to Class A-1 Noteholders for amounts due and unpaid
on the Class A-1 Notes in respect of principal, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Class A-1 Notes in respect of
principal, until the Outstanding Amount of the Class A-1 Notes
is reduced to zero;
(C) to Class A-2 Noteholders for amounts due and unpaid
on the Class A-2 Notes in respect of principal, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Class A-2 Notes in respect of
principal, until the Outstanding Amount of the Class A-2 Notes
is reduced to zero;
(D) to Class A-3 Noteholders for amounts due and unpaid
on the Class A-3 Notes in respect of principal, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Class A-3 Notes in respect of
principal, until the Outstanding Amount of the Class A-3 Notes
is reduced to zero;
(E) to Class A-4 Noteholders for amounts due and unpaid
on the Class A-4 Notes in respect of principal, ratably,
without preference or priority of
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any kind, according to the amounts due and payable on the
Class A-4 Notes in respect of principal, until the Outstanding
Amount of the Class A-4 Notes is reduced to zero;
(F) to the Class B Noteholders for amounts due and unpaid
on the 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 in respect of interest;
(G) to Class B Noteholders for amounts due and unpaid on
the Class B Notes in respect of principal, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Class B Notes in respect of principal,
until the Outstanding Amount of the Class B Notes is reduced
to zero;
(H) to the Class C Noteholders for amounts due and unpaid
on the Notes in respect of interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Class C Notes in respect of interest;
(I) to Class C Noteholders for amounts due and unpaid on
the Class C Notes in respect of principal, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Class C Notes in respect of principal,
until the Outstanding Amount of the Class C Notes is reduced
to zero;
(J) to the Class D Noteholders for amounts due and unpaid
on the Notes in respect of interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Class D Notes in respect of interest;
(K) to Class D Noteholders for amounts due and unpaid on
the Class D Notes in respect of principal, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Class D Notes in respect of principal,
until the Outstanding Amount of the Class D Notes is reduced
to zero; and
(L) any excess amounts remaining after making the
payments described in above, to be applied pursuant to Section
8.2(c) to the extent that any amounts payable thereunder have
not been previously paid as described above.
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 Indenture Trustee shall mail to each Noteholder 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. A
Noteholder may submit a bid with respect to such sale. For
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the avoidance of doubt, the Depositor and any of its Affiliates 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. It is the desire of the
parties hereto and the Noteholders that there be at all times sufficient
funds for the payment of principal of and interest on the Notes, and the
Indenture Trustee shall take such desire into account when determining
whether or not to maintain possession of the Indenture Trust Estate. In
determining whether to maintain possession of the Indenture Trust Estate, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as
to the feasibility of such proposed action and as to the sufficiency of the
Indenture Trust Estate for such purpose.
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 holders of Notes evidencing not less than 25% of the
Outstanding Amount of the Controlling 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 indemnity reasonably satisfactory to it 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 Outstanding
Amount of the Controlling 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 Outstanding Amount of the
Controlling Class, the Indenture Trustee shall act at the direction of the
group of Noteholders representing the greater principal amount of the Notes.
If the Indenture
32
Trustee receives conflicting or inconsistent requests and indemnity from two
or more groups of Noteholders representing an equal Outstanding Amount of the
Controlling Class, the Indenture Trustee in its sole discretion may determine
what action, if any, shall be taken, notwithstanding any other provisions of
this Indenture. The Indenture Trustee shall be fully protected and shall
incur no liability for acting, or refraining from acting in accordance with
this Section.
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 prepayment pursuant to Article
X, on or after the Prepayment 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 Class. The Noteholders of
Notes evidencing not less than a majority of the Outstanding Amount of the
Controlling Class shall have the right, subject to Section 6.2(f), 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;
33
(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 evidencing not less than 100% of the Outstanding Amount of
the Controlling 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 Outstanding Amount of
the Controlling 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
indemnified to its satisfaction 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 holders of Notes evidencing not less than a majority of the Outstanding
Amount of the Controlling 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 Outstanding Amount of the Notes (or in the case of a
right or remedy under this Indenture which is instituted by the Controlling
Class, more than 10% of the
34
Controlling Class) or (c) any suit instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture.
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 this Indenture.
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 each Seller of its obligations under the related Purchase
Agreement and the Servicer of its obligations under the Sale and Servicing
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, to the extent and in the manner directed by the
Indenture Trustee, including the transmission of notices of default on the
part of each Seller or the Servicer thereunder and the institution of legal
or administrative actions or proceedings to compel or secure performance by
each Seller or the Servicer of each of their obligations under the related
Receivables Purchase Agreement and the Sale and Servicing Agreement, as
applicable.
(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 a majority of the Outstanding
Amount of the Controlling Class shall, exercise all rights, remedies, powers,
privileges and claims of the Issuer against each Seller or the Servicer under
or in connection with the related Receivables Purchase Agreement and the Sale
and Servicing Agreement, including the right or power to take any action to
compel or secure performance or observance by each Seller, or the Servicer,
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 and any right of the Issuer to
take such action shall be suspended.
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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, no implied covenants or obligations shall be read into
this Indenture against the Indenture Trustee and the Indenture
Trustee shall not be a trustee for or have any fiduciary obligation
to the Issuer; 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;
(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 any of the Noteholders given in accordance with the terms of
this Indenture; and
(iv) the Indenture Trustee shall not have any responsibility
for (A) any recording, filing, or depositing of this Indenture or
any agreement referred to herein or any financing statement or
continuation statement evidencing a security interest, or the
maintenance of any such recording or filing or depositing or to any
re-recording, refiling or redepositing of any thereof, (B) any
insurance, (C) the payment or discharge of any tax, assessment, or
other governmental charge or any lien or encumbrance of any kind
owing with respect to, assessed or levied against, any part of the
Trust Estate other than from funds available in the Collection
Account, (D) except as otherwise set forth in Section 6.1(b)(ii),
the confirmation or verification of the contents of any reports or
certificates of the Servicer delivered to the Indenture Trustee
pursuant to this Indenture believed by the Indenture Trustee to be
genuine and to have been signed or presented by the proper party or
parties.
36
(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 liability,
financial or otherwise, 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 indemnity satisfactory to
it against such risk or liability is not reasonably assured to it, and none
of the provisions contained in this Indenture shall in any event require the
Indenture Trustee to perform, or be responsible for the manner of performance
of, any of the obligations of the Servicer under this Indenture except during
such time, if any, as the Indenture Trustee shall be the successor to, and be
vested with the rights, duties, powers and privileges of the Servicer in
accordance with the terms of this Indenture.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section 6.1 and to the provisions
of the TIA.
(h) The Indenture Trustee shall not be charged with knowledge of
any Event of Default unless either (1) a Trustee Officer shall have actual
knowledge of such Event of Default or (2) written notice of such Event of
Default shall have been given to the Indenture Trustee in accordance with the
provisions of this Indenture.
SECTION 6.2. Rights of Indenture Trustee. (a) The Indenture
Trustee may conclusively rely and shall be fully 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) Neither the Indenture Trustee nor any of its officers,
directors, employees or agents shall 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.
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(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 institute,
conduct or defend any litigation hereunder or in relation hereto 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 security
or indemnity reasonably satisfactory to it 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.
(h) The right of the Indenture Trustee to perform any discretionary
act enumerated in this Indenture shall not be construed as a duty, and the
Indenture Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act.
(i) The Indenture Trustee shall not be required to give any bond or
surety in respect of the execution of the Trust Estate created hereby or the
powers granted hereunder.
(j) Except as otherwise provided in Section 8.3(c) the Indenture
Trustee shall have no obligation to invest and reinvest any cash held in the
Collection Account or any other account held by the Indenture Trustee in the
absence of timely and specific written investment direction from the
Servicer. In no event shall the Indenture Trustee be liable for the selection
of investments or for investment losses incurred thereon. The Indenture
Trustee shall have no liability in respect of losses incurred as a result of
the liquidation of any investment prior to its stated maturity or the failure
of the Servicer to provide timely written investment direction.
(k) In no event shall the Indenture Trustee or any agent of the
Indenture Trustee be obligated or responsible for preparing, executing,
filing or delivering in respect of the Trust or on behalf of another person,
either (A) subject to Section 7.4, any report or filing required or permitted
by the Securities Exchange Commission to be prepared, executed, filed or
delivered by or in respect of the Trust or another person, or (B) any
certification in respect of any such report or filing.
(l) Anything in this Indenture to the contrary notwithstanding, in
no event shall the Indenture Trustee be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Indenture Trustee has been advised of
the likelihood of such loss or damage and regardless of the form of action.
(m) So long as the Indenture Trustee shall serve as Note Registrar
hereunder, the Indenture Trustee in such capacity shall be afforded all of
the rights, protections, immunities and indemnities provided to the Indenture
Trustee hereunder.
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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
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 3.8 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 Indenture
Trustee shall be paid the fees and any other amounts payable to it, agreed to
in a separate written agreement between the Issuer and the Indenture Trustee,
as the same may be amended from time to time, in accordance with Section
8.2(c). The Indenture Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Issuer shall reimburse
the Indenture Trustee for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by it in accordance with any of
the provisions hereof and any other documents executed in connection
herewith, 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 cause the Administrator to
indemnify the Indenture Trustee and its officers, directors, employees,
representatives and agents for, and to hold them harmless against, any and
all expenses, obligations, liabilities, losses, damages, injuries (to person,
property, or natural resources), penalties, stamp or other similar taxes,
actions, suits, judgments, reasonable costs and expenses (including
reasonable attorney's and agent's fees and expenses) of whatever kind of
nature regardless of their merit, 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
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notify the Issuer and the Administrator shall not relieve the Issuer or the
Administrator of its obligations hereunder. The Issuer shall cause the
Administrator to defend any such claim, and the Indenture Trustee may have
separate counsel and the Issuer 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. All amounts payable to the Indenture
Trustee under this Section (other than the indemnification payments from the
Administrator) shall be paid to the Indenture Trustee in accordance with
Section 8.2(c).
(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
holders of Notes evidencing not less than a majority in principal amount of
the Notes may remove the Indenture Trustee without cause by so notifying the
Indenture Trustee and the Issuer and may appoint a successor Indenture
Trustee. The Administrator 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.
The Indenture Trustee may resign at any time by giving 30 days' written notice
to the Administrator and the Issuer. 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 Administrator 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. Any successor Indenture Trustee shall also deliver to the Servicer a
written assumption of the duties of the Indenture Trustee under the Data
Administration Agreement. 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, the
successor Indenture Trustee shall have all the rights, powers and duties of
the Indenture Trustee under this Indenture and the resigning
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Indenture Trustee shall be relieved of all of its obligations hereunder. 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
ninety (90) days after the retiring Indenture Trustee resigns or is removed,
the retiring Indenture Trustee, the Issuer or the holders of Notes evidencing
not less than a majority in the Outstanding Amount of the Controlling 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.
(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, 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.
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(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.
(e) The Issuer shall cause the Administrator to pay to any
co-trustee or separate trustee appointed hereunder reasonable compensation,
and to reimburse such co-trustee or separate trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by it or
them in accordance with any provisions of this Indenture or other Basic
Document except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith. In no event shall the Indenture
Trustee be obligated to pay any fee or expense of any separate trustee or
co-trustee.
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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, the Class B Notes, the Class C Notes and/or the Class D Notes
in accordance with Section 6.8 of this Indenture, and the Issuer shall
appoint a successor Indenture Trustee for each of such Classes, as
applicable, so that there will be separate Indenture Trustees for the Class A
Notes, the Class B Notes, the Class C Notes and the Class D 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.
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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 holders of Notes evidencing not less than
25% 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
44
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, 2005, 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.
(a) On or prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain the Trust Accounts as provided in Sections
4.1 of the Sale and Servicing Agreement.
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(b) On or before each Determination Date, the Servicer shall
deposit all Available Collections with respect to the Collection Period
preceding such Payment Date in the Collection Account as provided in Sections
4.2, 4.3 and 4.4 of the Sale and Servicing Agreement.
(c) On each Payment Date, the Indenture Trustee (based on the
information contained in the Investor Report delivered on or before the
related Determination Date pursuant to Section 3.8 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 Available
Collections for such Payment Date, in the following order of priority:
(i) first, to the Servicer, the Servicing Fee and all unpaid
Servicing Fees from prior Collection Periods;
(ii) second, to the Indenture Trustee, the Owner Trustee and
the Administrator, the fees and any other amounts payable to them
hereunder and under the Trust Agreement or the Administration
Agreement; provided that the cumulative amount paid to them in the
aggregate pursuant to this clause (ii) shall not exceed $100,000 in
any consecutive twelve month period;
(iii) third, to the Class A Noteholders, the Accrued Class A
Note Interest; provided that if there are not sufficient funds
available to pay the entire amount of Class A Note Interest, the
amounts available shall be applied to the payment of such interest
on the Class A Notes on a pro rata basis;
(iv) fourth, to the Principal Distribution Account, an amount
equal to the First Allocation of Principal, if any;
(v) fifth, to the Class B Noteholders, the Accrued Class B
Note Interest;
(vi) sixth, to the Principal Distribution Account, an amount
equal to the Second Allocation of Principal, if any, reduced by the
First Allocation of Principal, if any, paid pursuant to clause (iv)
above;
(vii) seventh, to the Class C Noteholders, the Accrued Class C
Note Interest;
(viii) eighth, to the Principal Distribution Account, an
amount equal to the Third Allocation of Principal, if any, reduced
by the First Allocation of Principal, if any, paid pursuant to
clause (iv) above and the Second Allocation of Principal, if any,
paid pursuant to clause (vi) above;
(ix) ninth, to the Class D Noteholders, the Accrued Class D
Note Interest;
(x) tenth, to the Principal Distribution Account, an amount
equal to the Regular Principal Allocation, if any, reduced by the
First Allocation of Principal, if any, paid pursuant to cause (iv)
above, the Second Allocation of Principal, if any, paid pursuant to
clause (vi) above and the Third Allocation of Principal, if any,
paid pursuant to clause (viii) above;
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(xi) eleventh, to the Indenture Trustee, the Owner Trustee and
the Administrator any fees and other amounts payable to them
hereunder and under the Trust Agreement and the Administration
Agreement to the extent not paid under clause (ii) above; and
(xii) twelfth, the remainder, if any, to the Certificate
Distribution Account.
(d) On each Payment Date, the Indenture Trustee (based on the
information contained in the Investor Report delivered on or before the
related Determination Date pursuant to Section 3.8 of the Sale and Servicing
Agreement) shall withdraw the funds deposited in the Principal Distribution
Account on such Payment Date and make distributions and payments in the
following order of priority:
(i) first, to the Class A Noteholders, in the following order
and priority, the Class A Principal Payment Amount for such Payment
Date:
(A) to the Class A-1 Noteholders on account of principal
until the Outstanding Amount of the Class A-1 Notes is reduced
to zero;
(B) to the Class A-2 Noteholders, on a pro rata basis, on
account of principal until the Outstanding Amount of the Class
A-2 Notes is reduced to zero;
(C) to the Class A-3 Noteholders on account of principal
until the Outstanding Amount of the Class A-3 Notes is reduced
to zero;
(D) to the Class A-4 Noteholders on account of principal
until the Outstanding Amount of the Class A-4 Notes is reduced
to zero;
(ii) second, to the Class B Noteholders, the Class B Principal
Payment Amount for such Payment Date;
(iii) third, to the Class C Noteholders, the Class C Principal
Payment Amount for such Payment Date; and
(iv) fourth, to the Class D Noteholders, the Class D Principal
Payment Amount for such Payment Date.
Notwithstanding the foregoing, the priority of payments set forth
in clauses (i) through (iv) immediately above shall be adjusted as follows:
(1) In no event will the Class A Principal Payment Amount
allocated to any subclass of Class A Notes exceed the
outstanding principal amount of that subclass.
(2) On the Final Scheduled Payment Date for each subclass of
Class A Notes, the Class A Principal Payment Amount to be
applied to that subclass will include the amount, to the
extent of the remaining Available Collections, necessary
(after giving effect to the other amounts to be deposited
in the
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Principal Distribution Account on that Payment Date) to
reduce the Outstanding Amount of that subclass to zero.
(3) No principal payments will be made on the Class B Notes,
Class C Notes or Class D Notes on any Payment Date until
the Class A-1 Notes have been paid in full.
(4) In the event of any shortfall in the amount of funds
available for principal payments on the Notes on any
Payment Date, no principal payments will be made on the
Class B Notes on such Payment Date until all amounts
payable with respect to the Class A Notes on that Payment
Date have been paid in full, no principal payments will
be made on the Class C Notes on such Payment Date until
all amounts payable with respect to the Class B Notes on
that Payment Date have been paid in full, and no
principal payments will be made on the Class D Notes on
such Payment Date until all amounts payable with respect
to the Class C notes on that Payment Date have been paid
in full.
(5) If, on any Payment Date, the Annualized Average Monthly
Net Loss Rate exceeds (A) 1.5% if that Payment Date is on
or before the Payment Date in October 2005; (B) 2.0% if
that Payment Date is after the Payment Date in October
2005 but not after the Payment Date in October 2007; and
(C) 2.5% if such Payment Date is on or after the Payment
Date in November 2007, then on such Payment Date and each
subsequent Payment Date until the Annualized Average
Monthly Net Loss Rate is reduced to or below the
applicable level, the Issuer will pay from the Principal
Distribution Account the principal of the Notes of each
Class sequentially starting with most senior and earliest
maturing Class of Notes then outstanding (with respect to
the Class A Notes, in the order of priority set forth in
Section 8.2(d)) until that Class is paid in full, and so
on.
Notwithstanding anything herein to the contrary, but subject to the
provisions of 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(v) or 5.1(vi) which has resulted in an acceleration of the Notes (but
prior to any sale of the Receivables under the Indenture), the Indenture
Trustee shall apply the funds on deposit in the Collection Account as
follows:
(1) funds remaining after the application of Sections
8.2(c)(i) through (iii) above shall be deposited to the
Principal Distribution Account to the extent necessary to
reduce the principal amount of all the Class A Notes to
zero,
(2) if the Class A Notes shall have been paid in full, funds
remaining after the payment specified in clause (1) shall
be applied to the payment of accrued and unpaid interest
on the Class B Notes and any remaining funds shall be
deposited to the Principal Distribution Account to the
extent necessary to reduce the principal amount of all
the Class B Notes to zero,
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(3) if the Class A Notes and Class B Notes shall have been
paid in full, funds remaining after the payments
specified in clauses (1) and (2) shall be applied to the
payment of accrued and unpaid interest in the Class C
Notes and any remaining funds shall be deposited to the
Principal Distribution Account to the extent necessary to
reduce the principal amount of all the Class C Notes to
zero, and
(4) funds remaining after the payments specified in clauses
(1), (2) and (3) shall be applied to the payment of
accrued and unpaid interest in the Class D Notes and any
remaining funds shall be deposited, if the Class A Notes,
Class B Notes and Class C Notes shall have been paid in
full, to the Principal Distribution Account to the extent
necessary to reduce the principal amount of all the Class
D Notes to zero; and
(B) following the occurrence and during the continuation of an
Event of Default specified in Section 5.1(iii) or 5.1(iv) of this Indenture,
which has resulted in an acceleration of the Notes (but prior to any sale of
the Receivables under this Indenture), the Indenture Trustee shall apply the
funds on deposit in the Collection Account remaining after the application of
Section 8.2(c)(i) through (x) above to the Principal Distribution Account to
the extent necessary to reduce the principal amount of all the Notes to zero.
Any such remaining funds will be used to pay principal in respect of the
Notes sequentially, starting with the most senior and earliest maturing Class
of Notes then Outstanding (with respect to the Class A Notes, in the order of
priority set forth in Section 8.2(d)) until that Class is paid in full, and
so on.
Any funds remaining on deposit in the Principal Distribution
Account after the Notes have been paid in full shall be deposited into the
Certificate Distribution Account.
SECTION 8.3. General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have occurred
and be continuing, all or a portion of the funds in the Collection Account
shall be invested by the Indenture Trustee at the written direction of the
Servicer in Permitted Investments specified in such written direction 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 shall be withdrawn by the Indenture
Trustee from such accounts and distributed as provided in Section 4.1 of the
Sale and Servicing Agreement. The Servicer shall not direct the Indenture
Trustee 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 to the Indenture Trustee to
make any such investment or sale, if requested by the Indenture Trustee, the
Issuer shall deliver to the Indenture Trustee an Opinion of Counsel,
acceptable to the Indenture Trustee, 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 resulting from any loss on any Permitted Investment included
therein, except for losses attributable to the Indenture Trustee's
49
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.
(c) If (i) the Servicer shall have failed to give investment
directions for any funds on deposit in the Collection Account to the
Indenture Trustee or (ii) to the knowledge of a Trustee 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) if such Notes shall
have been declared due and payable following an Event of Default then the
Indenture Trustee shall, to the fullest extent practicable, invest and
reinvest funds in the Collection Account, as the case may be, in JPMorgan
Prime Money Market Fund (Institutional) 829.
(d) 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 (i) the Receivables Servicing Agreement dated as of September 1, 2003
with Ford Credit will terminate on July 31, 2010, (ii) the GMAC Servicing
Agreement dated as of September 9, 2003 will terminate on August 31, 2011,
(iii) the GMAC Servicing Agreement dated as of October 25, 2004 will
terminate on July 31, 2012 and (iv) the Servicing and Administration
Agreement dated as of October 12, 2004 with DCS will terminate on September
30, 2012. After (i) July 31, 2010 with respect to the Ford Credit
Receivables, (ii) August 31, 2011 with respect to certain GMAC Receivables
and after July 31, 2012 with respect to the remaining GMAC Receivables and
(iii) September 30, 2012 with respect to the DCS Receivables, the Noteholders
will not have any right, title and interest in, to and under, any future
claims, demands, causes of action and chooses in action in respect of such
Receivables. After (i) July 31, 2010 with respect to the Ford Credit
Receivables, (ii) August 31, 2011 with respect to certain GMAC Receivables
and after July 31, 2012 with respect to the remaining GMAC Receivables and
(iii) September 30, 2012 with respect to the DCS Receivables, collections in
respect of such Receivables will not be deposited in the deposit accounts
maintained with XX Xxxxxx Xxxxx Bank or Xxxxx Fargo Bank, National
Association, will not be deposited into the Collection Account, and will not
be available to make the distributions described in Section 8.2 of this
Indenture.
SECTION 8.4. Release of Indenture Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.7, the Indenture Trustee may, and when required by the provisions
of this Indenture shall, execute instruments to release property from the
lien of this Indenture, or convey the Indenture Trustee's interest in the
same, in a manner and under circumstances that are not inconsistent with the
provisions of this Indenture. No party relying upon an instrument executed by
the Indenture Trustee as provided in this Article VIII shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.7
have been paid in full, release any remaining portion of the Indenture Trust
Estate that secured the Notes from the lien of this Indenture and release to
the Issuer or any other Person entitled thereto any funds then on deposit in
the Trust Accounts. The Indenture Trustee shall release property from the
lien of this
50
Indenture pursuant to this Section 8.4(b) only upon receipt of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and
(if required by the TIA) Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section
11.1.
(c) Each Noteholder or Note Owner, by its acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, acknowledges
that from time to time the Indenture Trustee shall release the lien of this
Indenture on any Receivable to be sold to (i) the Seller in connection with
any repurchase upon breach, as set forth the applicable Receivables Purchase
Agreement and (ii) to the Servicer in accordance with Section 2.3 of the Sale
and Servicing Agreement.
SECTION 8.5. Opinion of Counsel. The Indenture Trustee shall
receive at least seven (7) days' notice when requested by the Issuer to take
any action pursuant to Section 8.4(a), accompanied by copies of any
instruments involved, and the Indenture Trustee shall also require, except in
connection with any action contemplated by Section 8.4(c), as a condition to
such action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such
action will not materially and adversely impair the security for the Notes or
the rights of the Noteholders in contravention of the provisions of this
Indenture; provided, however, that such Opinion of Counsel shall not be
required to express an opinion as to the fair value of the Indenture Trust
Estate. Counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Indenture Trustee in connection with any such
action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of
Noteholders.
(a) Without the consent of the Noteholders but with prior notice to
the Rating Agencies, the Issuer and the Indenture Trustee, when authorized by
an Issuer Order, at any time and from time to time, may enter into one or
more indentures supplemental hereto (which shall conform to the provisions of
the Trust Indenture Act as in force at the date of the execution thereof), in
form satisfactory to the Indenture Trustee, for any of the following
purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to
assure, convey and confirm unto the Indenture Trustee any property
subject or required to be subjected to the lien of this Indenture,
or to subject to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer, and
the assumption by any such successor of the covenants of the Issuer
herein and in the Notes contained;
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(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 the Prospectus, the Prospectus Supplement, any
other provision herein or any supplemental indenture or to make any
other provisions with respect to matters or questions arising under
this Indenture or under any supplemental indenture which shall not
be inconsistent with the provisions of the Indenture; provided that
such action shall not materially adversely affect the interests of
the Noteholders;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the
Notes and to add to or change any of the provisions of this
Indenture as shall be necessary to facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the
requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture (A) 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 or (B) to
enable the Issuer to use any exemption from the registration
provisions of the Securities Act as applied to the Class D Notes.
With respect to (v) above, prior to the execution of such
supplemental indenture, the Rating Agency Condition shall have been
satisfied.
The Indenture Trustee is hereby authorized to join in the execution
of any such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, may, also without the consent of any of the Noteholders but
with prior notice to the Rating Agencies, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to,
or changing in any manner or eliminating any of the provisions of, this
Indenture or of modifying in any manner (other than the modifications set
forth in Section 9.2) the rights of the Noteholders under this Indenture;
provided, however, that such action shall not adversely affect in any
material respect the interests of any Noteholder either (i) as evidenced by
an Opinion of Counsel or (ii) as evidenced by the satisfaction of the Rating
Agency Condition; provided, further, that such action shall not, as evidenced
by an Opinion of Counsel, cause the Issuer to be characterized for federal
income tax purposes as an association (or publicly traded partnership)
taxable as a corporation or otherwise have any material adverse impact on the
federal income taxation of any Notes Outstanding or outstanding Certificates.
SECTION 9.2. Supplemental Indentures with Consent of Noteholders.
The Issuer and the Indenture Trustee, when authorized by an Issuer Order,
also may, with prior notice to the
52
Rating Agencies, enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or 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 income tax purposes
as an association (or publicly traded partnership) taxable as a corporation
or otherwise have any material adverse impact on the federal income taxation
of any Notes Outstanding or outstanding Certificates, and (iii) the
Noteholders of each Outstanding Note affected thereby shall have consented
thereto, with respect to any supplemental indenture which would:
(i) modify or alter provisions of this Section 9.2;
(ii) change the Final Scheduled Payment 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 Prepayment 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 Prepayment Date);
(iii) reduce the percentage of the Outstanding Amount of the
Controlling 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 Class";
(v) reduce the percentage of the Outstanding Amount of the
Controlling 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 principal amount 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
holder of each Outstanding Note affected thereby;
53
(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 Payment 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.
It shall not be necessary for any Act of Noteholders under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section 9.2, the
Indenture Trustee shall mail to the Noteholders of the Notes to which such
amendment or supplemental indenture relates a notice setting forth in general
terms the substance of such supplemental indenture. Any failure of the
Indenture Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.3. Execution of Supplemental Indentures. In executing,
or permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to
receive, and subject to Sections 6.1 and 6.2, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and that
all conditions precedent to the execution and delivery of such supplemental
indenture have been satisfied. The Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
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.
54
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
PREPAYMENT
SECTION 10.1. Optional Prepayment. The Notes are subject to
prepayment on any Payment Date on which the Servicer exercises its option to
purchase the assets of the Issuer pursuant to Section 8.1 of the Sale and
Servicing Agreement, 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. If the Notes are to be prepaid pursuant to this Section 10.1, the
Servicer or the Issuer shall furnish written notice of such election to the
Indenture Trustee and the Rating Agencies at least ten (10) days, but not
more than thirty (30) days prior to the Prepayment Date (and the Indenture
Trustee shall promptly furnish notice to the Noteholders) and the Servicer or
the Issuer shall deposit by 10:00 a.m. (New York City time) on the Prepayment
Date with the Indenture Trustee in the Collection Account the Prepayment
Price of the Notes, whereupon all Notes shall be due and payable on the
Prepayment Date.
SECTION 10.2. Form of Prepayment Notice. Notice of prepayment
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 the Servicer pursuant to
Section 10.1, but not later than three Business Days after it has received
such notice, to each Noteholder as of the close of business on the Record
Date preceding the applicable Prepayment Date, at such Noteholder's address
or facsimile number appearing in the Note Register.
All notices of prepayment shall state:
(i) the Prepayment Date;
(ii) the Prepayment Price;
(iii) the place where such Notes are to be surrendered for
payment of the Prepayment Price (which shall be the office or
agency of the Issuer to be maintained as provided in Section 3.2);
and
(iv) that on the Prepayment Date, the Prepayment Price will
become due and payable upon each such Note and that interest
thereon shall cease to accrue for and after said date.
55
Notice of prepayment 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
prepayment, or any defect therein, to any Noteholder shall not impair or
affect the validity of the prepayment of any other Note.
SECTION 10.3. Notes Payable on Prepayment Date. The Notes shall,
following notice of prepayment as required by Section 10.2, shall on the
Prepayment Date become due and payable at the Prepayment Price and (unless
the Issuer shall default in the payment of the Prepayment Price) no interest
shall accrue on the Prepayment Price for any period after the date to which
accrued interest is calculated for purposes of calculating the Prepayment
Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Compliance Certificates and Opinions, etc. (a) Upon
any application or request by the Issuer to the Indenture Trustee to take any
action under any provision of this Indenture, the Issuer shall furnish to the
Indenture Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the applicable
requirements of this Section 11.1, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(A) a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or
condition and the definitions herein relating thereto;
(B) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(C) a statement that, in the opinion of each such
signatory, such signatory has made such examination or
investigation as is necessary to enable such signatory to
express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(D) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied
with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture,
the Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
56
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 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
57
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 related
Seller, the Administrator or the Issuer, stating that the information with
respect to such factual matters is in the possession of the Servicer, such
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.
58
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Noteholder of any Notes shall bind the
Noteholder of every Note issued upon the registration thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered
to be done by the Indenture Trustee or the Issuer in reliance thereon,
whether or not notation of such action is made upon such Note.
SECTION 11.4. Notices, etc., to Indenture Trustee, Issuer and
Rating Agencies. Any request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders or other documents provided or
permitted by this Indenture shall be in writing and if such request, demand,
authorization, direction, notice, consent, waiver or Act of Noteholders is to
be made upon, given or furnished to or filed with:
(i) the Indenture Trustee by any Noteholder, the Servicer, the
Administrator or the Issuer shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with
the Indenture Trustee at its Corporate Trust office; or
(ii) the Issuer by the Indenture Trustee or by any Noteholder
shall be sufficient for every purpose hereunder if in writing and
mailed first-class, postage prepaid to the Issuer addressed to:
Whole Auto Loan Trust 2004-1, in care of Wilmington Trust Company,
as Owner Trustee, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration, with a copy to the Administrator at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxxxx Xxxxx, or at
any other address previously furnished in writing to the Indenture
Trustee by the Issuer or the Administrator. The Issuer shall
promptly transmit any notice received by it from the Noteholders to
the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer,
the Indenture Trustee or the Owner Trustee shall be in writing, personally
delivered, telecopied or mailed by certified mail, return receipt requested,
to (i) in the case of Moody's, at the following address: Xxxxx'x Investors
Service, Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, (ii) in the case of Standard & Poor's, at the following address:
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset
Backed Surveillance Department and (iii) in the case of Fitch, at the
following address: Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
SECTION 11.5. Notices to Noteholders; Waiver.
(a) Where this Indenture provides for notice to Noteholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage prepaid to
each Noteholder affected by such event, at his address as it appears on the
Note Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Noteholders is given by mail, neither the failure to mail such
notice nor any defect in any notice so mailed to any particular Noteholder
shall affect the sufficiency of such notice with respect to other
59
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, subject to the Indenture
Trustee's approval, 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. References in
this Indenture to section names or numbers and to exhibits , schedules or
appendices are to such Sections, Exhibits, Schedules or Appendices, as
applicable, of this Indenture.
SECTION 11.9. Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind its
successors and assigns, whether so expressed or not. All agreements of the
Indenture Trustee in this Indenture shall bind its successors, co-trustees
and agents.
60
SECTION 11.10. Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 11.11. Benefits of Indenture. Nothing in this Indenture
or in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Noteholders, and any
other party secured hereunder, and any other Person with an ownership
interest in any part of the Indenture Trust Estate, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 11.12. Legal Holidays. In any case where the date on which
any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Notes or this Indenture) payment need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date on which nominally due, and no
interest shall accrue for the period from and after any such nominal date.
SECTION 11.13. GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS THAT WOULD APPLY THE LAW OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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 shall be 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
61
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 and VII 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 prior to the end of the period that is one year and
one day after there has been paid in full all debt issued by any
securitization vehicle in respect of which the Depositor holds any interest,
they will not institute against the Issuer, or join in, or assist or
encourage others to institute any institution against 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. Subordination Agreement. Each Noteholder, by accepting
a Note, hereby covenants and agrees that, to the extent it is deemed to have
any interest in any assets of the Depositor, or a securitization vehicle
(other than the Trust) related to the Depositor, dedicated to other debt
obligations of the Depositor or debt obligations of any other securitization
vehicle (other than the Trust) related to the Depositor, its interest in
those assets is subordinate to claims or rights of such other debtholders to
those other assets. Furthermore, each Noteholder, by accepting a Note, hereby
covenants and agrees that such agreement constitutes a subordination
agreement for purposes of Section 510(a) of the Bankruptcy Code.
SECTION 11.19. No Recourse. Notwithstanding any provisions herein
to the contrary, all of the obligations of the Issuer under or in connection
with the Notes and this Indenture are nonrecourse obligations of the Issuer
payable solely from the Collateral and following realization of the
Collateral and its reduction to zero, any claims of the Noteholders and the
Indenture Trustee against the Issuer shall be extinguished and shall not
thereafter revive. It is understood that the foregoing provisions of this
Section 11.19 shall not (i) prevent recourse to the Collateral for the sums
due or to become due under any security, instrument or agreement which is
part of the Collateral or (ii) constitute a waiver, release or discharge of
any indebtedness or obligation evidenced by the Notes or secured by this
Indenture (to the extent it relates to the obligation to make payments on the
Notes) until such Collateral has been realized and reduced to zero, whereupon
any outstanding indebtedness or obligation in respect of the Notes shall be
extinguished and shall not thereafter revive. It is further understood that
the foregoing provisions of this Section 11.19 shall not limit the right of
any Person to name the Issuer as a party defendant in any Proceeding or in
the exercise of any other remedy under the Notes or this Indenture, so long
as no judgment in the nature of a deficiency judgement shall be asked for or
(if obtained) enforced against any such Person or entity.
SECTION 11.20. 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
62
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.
SECTION 11.21. Representations and Warranties as to the Security
Interest of the Indenture Trustee in the Receivables. The Issuer makes the
following representations and warranties to the Indenture Trustee. The
representations and warranties speak as of the execution and delivery of this
Indenture and as of the Closing Date, and shall survive the pledge thereof to
the Indenture Trustee pursuant to this Indenture.
(a) This Indenture creates a valid and continuing security interest
(as defined in the UCC) in the Receivables in favor of the Indenture Trustee,
which security interest is prior to all other Liens, and is enforceable as
such as against creditors of and purchasers from the Issuer.
(b) The Receivables constitute "tangible chattel paper" within the
meaning of Article 9 of the UCC.
(c) Immediately prior to its pledge to the Indenture Trustee, the
Issuer owned and had good and marketable title to the Receivables free and
clear of any lien, claim or encumbrance of any Person.
(d) The Issuer has caused or will have caused, within ten days, 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 in the Receivables granted to the Indenture Trustee
hereunder. Each such financing statements will contain a statement to the
following effect "A purchase of or security interest in any collateral
described in this financing statement will violate the rights of the
Indenture Trustee and its assigns."
(e) 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 of the
Receivables. 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 the Receivables other than any financing statement
relating to the security interest granted to the Indenture Trustee hereunder
or that has been terminated. The Issuer is not aware of any judgment or tax
lien filings against it.
(f) The Servicer (or the Receivables Servicers) as custodian for
the Issuer has in its possession all original copies of the contracts that
constitute or evidence the Receivables. The contracts that constitute or
evidence the Receivables do not have any marks or notations indicating that
they have been pledged, assigned or otherwise conveyed to any Person other
than the Indenture Trustee.
Each of the parties hereto agrees that it shall not waive any of
the foregoing representations and warranties.
63
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto
duly authorized, all as of the day and year first above written.
WHOLE AUTO LOAN TRUST 2004-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee of Whole Auto Loan Trust
2004-1
By: /s/ Xxxxxxxx X. Pedellini
-----------------------------------
Name: Xxxxxxxx X. Pedellini
Title: Financial Services Officer
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
64
EXHIBIT A-1
FORM OF CLASS A-1 NOTE
[FOR BOOK-ENTRY NOTES] [UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $548,000,000
No. A-1-__ CUSIP NO. [ ]
WHOLE AUTO LOAN TRUST 2004-1
CLASS A-1 2.15% ASSET BACKED NOTES
Whole Auto Loan Trust 2004-1, a statutory 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 _______________ dollars payable on
each Payment 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 $548,000,000 by (ii) the
aggregate amount, if any, payable to holders of Class A-1 Notes on such
Payment Date from the Principal Distribution Account in respect of principal
on the Class A-1 Notes pursuant to Section 3.1 of the Indenture dated as of
November 9, 2004 (as from time to time amended, supplemented or otherwise
modified and in effect, the "Indenture"), between the Issuer and JPMorgan
Chase Bank, 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 November 2005 Payment Date (the "Class A-1 Final
Scheduled Payment Date"). Capitalized terms used but not defined herein are
defined in Article I of the Indenture, which also contains rules as to
construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to
A-1-1
all payments of principal made on the preceding Payment Date) or the Closing
Date in the case of the first Payment Date, subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue
for each Payment Date from and including the previous Payment Date on which
interest has been paid (or, in the case of the initial Payment Date, from the
Closing Date) to but excluding such Payment Date. Interest will be computed
on the basis of actual days elapsed and a 360-day year. Such principal of and
interest on this Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by
the Issuer with respect to this Note shall be applied first to interest due
and payable on this Note as provided above and then to the unpaid principal
of this Note.
Reference is made to the further provisions of this Note set forth
on the reverse hereof, which shall have the same effect as though fully set
forth on the face of this Note.
Unless the certificate of authentication hereon has been executed
by the Indenture Trustee whose name appears below by manual signature, this
Note shall not be entitled to any benefit under the Indenture referred to on
the reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
A-1-2
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:
WHOLE AUTO LOAN TRUST 2004-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee of Whole Auto Loan
Trust 2004-1
By:
---------------------------------
Authorized Officer
INDENTURE 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:
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By:
---------------------------------
Authorized Officer
A-1-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-1 2.15% Asset Backed Notes (the "Class A-1 Notes")
which, together with the Issuer's Class A-2A 2.59% Asset Backed Notes (the
"Class A-2A Notes"), Class A-2B 4.68% Asset Backed Notes (the "Class A-2B
Notes" and together with the Class A-2A Notes, the "Class A-2 Notes"), Class
A-3 2.96% Asset Backed Notes (the "Class A-3 Notes"), Class A-4 3.26% Asset
Backed Notes (the "Class A-4 Notes" and, together with the Class A-1 Notes,
the Class A-2 Notes and the Class A-3 Notes, the "Class A Notes"), Class B
3.13% Asset Backed Notes (the "Class B Notes"), Class C 3.37% Asset Backed
Notes (the "Class C Notes") and Class D 5.60% Asset Backed Notes (the "Class
D Notes" and, together with the Class A Notes, the Class B Notes, and the
Class C Notes, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Noteholders. The Notes are subject to
all terms of the Indenture.
Subject to the subordination provisions of the Indenture, the Class
A Notes, Class B Notes, Class C Notes and Class D Notes, are and will be
equally and ratably secured by the collateral pledged as security therefor as
provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each Payment
Date in an amount described on the face hereof. "Payment Date" means the 15
day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2004.
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
Payment 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 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.
Payments of interest on this Note on each Payment 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 Business Days prior to such Payment Date and such
Noteholder's Notes in the aggregate evidence a denomination of not less than
$1,000,000, or, if not, by check mailed first-class 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
A-1-4
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
Payment 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 Payment 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 Payment Date by notice mailed or transmitted by facsimile
prior to such Payment 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 prepaid, in whole
but not in part, in the manner and to the extent described in the Indenture
and the Sale and Servicing Agreement.
As provided in the Indenture, and subject to certain limitations
set forth therein, the transfer of this Note may be registered on the Note
Register upon surrender of this Note for registration of transfer at the
office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Noteholder hereof
or such Noteholder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Notes of the same Class in
authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee, each in its individual capacity, any holder of a beneficial interest
in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor
or assign of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, except as any such Person may have expressly agreed and
except that any such partner, owner or beneficiary shall be fully liable, to
the extent provided by applicable law, for any unpaid consideration for
stock, unpaid capital contribution for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
A-1-5
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 Issuer, or join in any institution
against 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 and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day
of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Issuer, the Indenture Trustee or any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes thereunder at any time by
the Issuer with the consent of the Holders of the Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling Class, as applicable, 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 Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent
of Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the
Indenture Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
A-1-6
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 Indenture Trustee, in its
individual capacity, Owner Trustee, 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 holder of this Note, by such
holder's 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.
A-1-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-----------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights 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.
A-1-8
EXHIBIT A-2A
FORM OF CLASS A-2A NOTE
[FOR BOOK-ENTRY NOTES] [UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $608,000,000
No. A-2A-__ CUSIP NO. [ ]
WHOLE AUTO LOAN TRUST 2004-1
CLASS A-2A 2.59% ASSET BACKED NOTES
Whole Auto Loan Trust 2004-1, a statutory 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 _______________ dollars payable on
each Payment 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 $608,000,000 by (ii) the aggregate
amount, if any, payable to holders of Class A-2A Notes on such Payment Date
from the Principal Distribution Account in respect of principal on the Class
A-2A Notes pursuant to Section 3.1 of the Indenture dated as of November 9,
2004 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and JPMorgan Chase Bank, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided,
however, that the entire unpaid principal amount of this Note shall be due and
payable on the May 2007 Payment Date (the "Class A-2A Final Scheduled Payment
Date"). No payments of principal of the Class A-2A Notes will be made until
the Class A-1 Notes have been paid in full. 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 Payment Date until the principal of this Note is paid or
made available for payment, on the
A-2A-1
principal amount of this Note outstanding on the preceding Payment Date
(after giving effect to all payments of principal made on the preceding
Payment Date) or the Closing Date in the case of the first Payment Date,
subject to certain limitations contained in Section 3.1 of the Indenture.
Interest on this Note will accrue for each Payment Date from and including
the 15th day of the calendar month immediately preceding such Payment Date
(or, in the case of the initial Payment Date, from the Closing Date) to but
excluding the 15th day of the calendar month of such Payment Date. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
A-2A-2
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:
WHOLE AUTO LOAN TRUST 2004-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee of Whole Auto Loan
Trust 2004-1
By:
---------------------------------
Authorized Officer
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2A Notes designated above and referred to
in the within-mentioned Indenture.
Date:
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By:
---------------------------------
Authorized Officer
A-2A-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-2A 2.59% Asset Backed Notes (the "Class A-2A
Notes"), which together with the Issuer's Class A-1 2.15% Asset Backed Notes
(the "Class A-1 Notes"), Class A-2B 4.68% Asset Backed Notes (the "Class A-2B
Notes" and together with the Class A-2A Notes, the "Class A-2 Notes"), Class
A-3 2.96% Asset Backed Notes (the "Class A-3 Notes"), Class A-4 3.26% Asset
Backed Notes (the "Class A-4 Notes" and, together with the Class A-1 Notes,
the Class A-2 Notes and the Class A-3 Notes, the "Class A Notes"), Class B
3.13% Asset Backed Notes (the "Class B Notes"), Class C 3.37% Asset Backed
Notes (the "Class C Notes") and Class D 5.60% Asset Backed Notes (the "Class D
Notes" and, together with the Class A Notes, the Class B Notes, and the Class
C Notes, the "Notes"), are issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Noteholders. The Notes are subject to all terms of
the Indenture.
Subject to the subordination provisions of the Indenture, the Class A
Notes, Class B Notes, Class C Notes and Class D Notes, are and will be equally
and ratably secured by the collateral pledged as security therefor as provided
in the Indenture.
Principal of the Class A-2A Notes will be payable on each Payment
Date in an amount described on the face hereof. "Payment Date" means the 15th
day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2004.
As described on the face hereof, the entire unpaid principal amount
of this Note shall be due and payable on the Class A-2A Final Scheduled
Payment 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 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.
Payments of interest on this Note on each Payment 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 Business Days prior to such Payment Date and such Noteholder's Notes in
the aggregate evidence a denomination of not less than $1,000,000, or, if not,
by check mailed first-class 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
A-2A-4
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
Payment 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 Payment 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 Payment Date by notice mailed or transmitted by facsimile
prior to such Payment 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-2A 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.
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.
A-2A-5
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 Issuer, or join in any institution
against 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 and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day
of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Issuer, the Indenture Trustee or any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes thereunder at any time
by the Issuer with the consent of the Holders of the Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling Class, as applicable, 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 Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
A-2A-6
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 Indenture Trustee, in its individual
capacity, Owner Trustee, 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 holder of this Note, by such holder's
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.
A-2A-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-----------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights 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.
A-2A-8
EXHIBIT A-2B
FORM OF CLASS A-2B NOTE
[FOR BOOK-ENTRY NOTES] [UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $25,000,000
No. A-2B-__ CUSIP NO. [ ]
WHOLE AUTO LOAN TRUST 2004-1
CLASS A-2B 4.68% ASSET BACKED NOTES
Whole Auto Loan Trust 2004-1, a statutory 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 _______________ dollars payable on
each Payment 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 $25,000,000 by (ii) the aggregate
amount, if any, payable to holders of Class A-2B Notes on such Payment Date
from the Principal Distribution Account in respect of principal on the Class
A-2B Notes pursuant to Section 3.1 of the Indenture dated as of November 9,
2004 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and JPMorgan Chase Bank, as
Indenture Trustee (in such capacity the "Indenture Trustee"); provided,
however, that the entire unpaid principal amount of this Note shall be due and
payable on the May 2007 Payment Date (the "Class A-2B Final Scheduled Payment
Date"). No payments of principal of the Class A-2B Notes will be made until
the Class A-1 Notes have been paid in full. 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 Payment Date until the principal of this Note is paid or
made available for payment, on the
A-2B-1
principal amount of this Note outstanding on the preceding Payment Date
(after giving effect to all payments of principal made on the preceding
Payment Date) or the Closing Date in the case of the first Payment Date,
subject to certain limitations contained in Section 3.1 of the Indenture.
Interest on this Note will accrue for each Payment Date from and including
the 15th day of the calendar month immediately preceding such Payment Date
(or, in the case of the initial Payment Date, from the Closing Date) to but
excluding the 15th day of the calendar month of such Payment Date. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
A-2B-2
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:
WHOLE AUTO LOAN TRUST 2004-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee of Whole Auto Loan
Trust 2004-1
By:
---------------------------------
Authorized Officer
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2B Notes designated above and referred to
in the within-mentioned Indenture.
Date:
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By:
---------------------------------
Authorized Officer
A-2B-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-2B 4.68% Asset Backed Notes (the "Class A-2B
Notes"), which together with the Issuer's Class A-1 2.15% Asset Backed Notes
(the "Class A-1 Notes"), Class A-2A 2.59% Asset Backed Notes (the "Class A-2A
Notes" and together with the Class A-2B Notes, the "Class A-2 Notes"), Class
A-3 2.96% Asset Backed Notes (the "Class A-3 Notes"), Class A-4 3.26% Asset
Backed Notes (the "Class A-4 Notes" and, together with the Class A-1 Notes,
the Class A-2 Notes and the Class A-3 Notes, the "Class A Notes"), Class B
3.13% Asset Backed Notes (the "Class B Notes"), Class C 3.37% Asset Backed
Notes (the "Class C Notes") and Class D 5.60% Asset Backed Notes (the "Class D
Notes" and, together with the Class A Notes, the Class B Notes, and the Class
C Notes, the "Notes"), are issued under the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Noteholders. The Notes are subject to all terms of
the Indenture.
Subject to the subordination provisions of the Indenture, the Class A
Notes, Class B Notes, Class C Notes and Class D Notes, are and will be equally
and ratably secured by the collateral pledged as security therefor as provided
in the Indenture.
Principal of the Class A-2B Notes will be payable on each Payment
Date in an amount described on the face hereof. "Payment Date" means the 15th
day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2004.
As described on the face hereof, the entire unpaid principal amount
of this Note shall be due and payable on the Class A-2B Final Scheduled
Payment 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 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-2B Notes shall be made pro rata to the
Noteholders entitled thereto.
Payments of interest on this Note on each Payment 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 Business Days prior to such Payment Date and such Noteholder's Notes in
the aggregate evidence a denomination of not less than $1,000,000, or, if not,
by check mailed first-class 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
A-2B-4
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
Payment 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 Payment 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 Payment Date by notice mailed or transmitted by facsimile
prior to such Payment 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-2B 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.
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.
A-2B-5
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 Issuer, or join in any institution
against 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 and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day
of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Issuer, the Indenture Trustee or any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes thereunder at any time
by the Issuer with the consent of the Holders of the Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling Class, as applicable, 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 Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
A-2B-6
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 Indenture Trustee, in its individual
capacity, Owner Trustee, 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 holder of this Note, by such holder's
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.
A-2B-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-----------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights 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.
X-0X-0
XXXXXXX X-0
FORM OF CLASS A-3 NOTE
[FOR BOOK-ENTRY NOTES] [UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $432,000,000
No. A-3-__ CUSIP NO. [ ]
WHOLE AUTO LOAN TRUST 2004-1
CLASS A-3 2.96% ASSET BACKED NOTES
Whole Auto Loan Trust 2004-1, a statutory 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 _______________ dollars payable on
each Payment 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 $432,000,000 by (ii) the aggregate
amount, if any, payable to holders of Class A-3 Notes on such Payment Date
from the Principal Distribution Account in respect of principal on the Class
A-3 Notes pursuant to Section 3.1 of the Indenture dated as of November 9,
2004 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and JPMorgan Chase Bank, 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 June 2008 Payment Date (the "Class A-3 Final Scheduled Payment
Date"). No payments of principal of the Class A-3 Notes will be made until the
Class A-1 Notes and the Class A-2 Notes have been paid in full. 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 Payment Date until the principal of this Note is paid or
made available for payment, on the
A-3-1
principal amount of this Note outstanding on the preceding Payment Date
(after giving effect to all payments of principal made on the preceding
Payment Date) or the Closing Date in the case of the first Payment Date,
subject to certain limitations contained in Section 3.1 of the Indenture.
Interest on this Note will accrue for each Payment Date from and including
the 15th day of the calendar month immediately preceding such Payment Date
(or, in the case of the initial Payment Date, from the Closing Date) to but
excluding the 15th day of the calendar month of such Payment Date. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
A-3-2
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:
WHOLE AUTO LOAN TRUST 2004-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee of Whole Auto Loan
Trust 2004-1
By:
---------------------------------
Authorized Officer
INDENTURE 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:
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By:
---------------------------------
Authorized Officer
A-3-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-3 2.96% Asset Backed Notes (the "Class A-3 Notes"),
which together with the Issuer's Class A-1 2.15% Asset Backed Notes (the
"Class A-1 Notes"), Class A-2A 2.59% Asset Backed Notes (the "Class A-2A
Notes"), Class A-2B 4.68% Asset Backed Notes (the "Class A-2B Notes" and
together with the Class A-2A Notes, the "Class A-2 Notes"), Class A-4 3.26%
Asset Backed Notes (the "Class A-4 Notes" and, together with the Class A-1
Notes, the Class A-2 Notes and the Class A-3 Notes, the "Class A Notes"),
Class B 3.13% Asset Backed Notes (the "Class B Notes"), Class C 3.37% Asset
Backed Notes (the "Class C Notes") and Class D 5.60% Asset Backed Notes (the
"Class D Notes" and, together with the Class A Notes, the Class B Notes, and
the Class C Notes, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights and obligations thereunder of the Issuer,
the Indenture Trustee and the Noteholders. The Notes are subject to all terms
of the Indenture.
Subject to the subordination provisions of the Indenture, the Class A
Notes, Class B Notes, Class C Notes and Class D Notes, are and will be equally
and ratably secured by the collateral pledged as security therefor as provided
in the Indenture.
Principal of the Class A-3 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 15, 2004.
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 Payment
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 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.
Payments of interest on this Note on each Payment 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 Business Days prior to such Payment Date and such Noteholder's Notes in
the aggregate evidence a denomination of not less than $1,000,000, or, if not,
by check mailed first-class 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
A-3-4
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
Payment 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 Payment 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 Payment Date by notice mailed or transmitted by facsimile
prior to such Payment 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.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note
Register upon surrender of this Note for registration of transfer at the
office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Noteholder hereof
or such Noteholder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Notes of the same Class in
authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
A-3-5
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 Issuer, or join in any institution
against 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 and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day
of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Issuer, the Indenture Trustee or any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes thereunder at any time
by the Issuer with the consent of the Holders of the Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling Class, as applicable, 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 Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
A-3-6
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 Indenture Trustee, in its individual
capacity, Owner Trustee, 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 holder of this Note, by such holder's
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.
A-3-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-----------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights 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.
X-0-0
XXXXXXX X-0
FORM OF CLASS A-4 NOTE
[FOR BOOK-ENTRY NOTES] [UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $309,720,000
No. A-4-__ CUSIP NO. [ ]
WHOLE AUTO LOAN TRUST 2004-1
CLASS A-4 3.26% ASSET BACKED NOTES
Whole Auto Loan Trust 2004-1, a statutory 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 _______________ dollars payable on
each Payment 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 $309,720,000 by (ii) the
aggregate amount, if any, payable to holders of Class A-4 Notes on such
Payment Date from the Principal Distribution Account in respect of principal
on the Class A-4 Notes pursuant to Section 3.1 of the Indenture dated as of
November 9, 2004 (as from time to time amended, supplemented or otherwise
modified and in effect, the "Indenture"), between the Issuer and JPMorgan
Chase Bank, 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 2011 Payment Date (the "Class
A-4 Final Scheduled Payment Date") and the Prepayment Date, if any, pursuant
to Section 10.1 of the Indenture. No payments of principal of the Class A-4
Notes will be made until the Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes have been paid in full. 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.
A-4-1
The Issuer shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date) or the Closing Date in the case
of the first Payment Date, subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the 15th day of the calendar month immediately preceding
such Payment Date (or, in the case of the initial Payment Date, from the
Closing Date) to but excluding the 15th day of the calendar month of such
Payment Date. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
A-4-2
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:
WHOLE AUTO LOAN TRUST 2004-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee of Whole Auto Loan
Trust 2004-1
By:
---------------------------------
Authorized Officer
INDENTURE 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:
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By:
---------------------------------
Authorized Officer
A-4-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-4 3.26% Asset Backed Notes (the "Class A-4 Notes"),
which together with the Issuer's Class A-1 2.15% Asset Backed Notes (the
"Class A-1 Notes"), Class A-2A 2.59% Asset Backed Notes (the "Class A-2A
Notes"), Class A-2B 4.68% Asset Backed Notes (the "Class A-2B Notes" and
together with the Class A-2A Notes, the "Class A-2 Notes"), Class A-3 2.96%
Asset Backed Notes (the "Class A-3 Notes" and, together with the Class A-1
Notes, the Class A-2 Notes and the Class A-4 Notes, the "Class A Notes"),
Class B 3.13% Asset Backed Notes (the "Class B Notes"), Class C 3.37% Asset
Backed Notes (the "Class C Notes") and Class D 5.60% Asset Backed Notes (the
"Class D Notes" and, together with the Class A Notes, the Class B Notes, and
the Class C Notes, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights and obligations thereunder of the Issuer,
the Indenture Trustee and the Noteholders. The Notes are subject to all terms
of the Indenture.
Subject to the subordination provisions of the Indenture, the Class A
Notes, Class B Notes, Class C Notes and Class D Notes, are and will be equally
and ratably secured by the collateral pledged as security therefor as provided
in the Indenture.
Principal of the Class A-4 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 15, 2004.
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-4 Final
Scheduled Payment Date and the Prepayment 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 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.
Payments of interest on this Note on each Payment 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 Business Days prior to such Payment Date and such Noteholder's Notes in
the aggregate evidence a denomination of not less than $1,000,000, or, if not,
by check mailed first-class 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
A-4-4
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 Payment 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 Payment 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 Payment Date by notice mailed or transmitted by facsimile prior
to such Payment 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.
As provided in the Indenture, and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note
Register upon surrender of this Note for registration of transfer at the
office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Noteholder hereof
or such Noteholder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Notes of the same Class in
authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
A-4-5
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 Issuer, or join in any institution
against 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 and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day
of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Issuer, the Indenture Trustee or any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes thereunder at any time
by the Issuer with the consent of the Holders of the Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling Class, as applicable, 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 Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
A-4-6
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 Indenture Trustee, in its individual
capacity, Owner Trustee, 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 holder of this Note, by such holder's
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.
A-4-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-----------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights 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.
A-4-8
EXHIBIT B
FORM OF CLASS B NOTE
[FOR BOOK-ENTRY NOTES] [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.]
PAYMENTS ON THIS NOTE ARE SUBORDINATE TO THE PAYMENT OF PRINCIPAL OF,
AND INTEREST ON, THE CLASS A NOTES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $50,333,000
No. B-__ CUSIP NO. [ ]
WHOLE AUTO LOAN TRUST 2004-1
CLASS B 3.13% ASSET BACKED NOTES
Whole Auto Loan Trust 2004-1, a statutory 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 ________________ dollars payable on
each Payment 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 $50,333,000 by (ii) the
aggregate amount, if any, payable to holders of Class B Notes on such Payment
Date from the Principal Distribution Account in respect of principal on the
Class B Notes pursuant to Section 3.1 of the Indenture dated as of November 9,
2004 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and JPMorgan Chase Bank, 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 2011 Payment Date (the "Class B Final
Scheduled Payment Date") and the Prepayment Date, if any, pursuant to Section
10.1 of the Indenture. No payments of principal of the Class B Notes will be
made until the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, and Class
A-4 Notes have been paid to the extent required under the terms of the
Indenture. Capitalized terms used but not defined herein are
B-1
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 Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date) or the Closing Date in the case
of the first Payment Date, subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the 15th day of the calendar month immediately preceding
such Payment Date (or, in the case of the initial Payment Date, from the
Closing Date) to but excluding the 15th day of the calendar month of such
Payment Date. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
B-2
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:
WHOLE AUTO LOAN TRUST 2004-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee of Whole Auto Loan
Trust 2004-1
By:
---------------------------------
Authorized Officer
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes designated above and referred to
in the within-mentioned Indenture.
Date:
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By:
---------------------------------
Authorized Officer
B-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class B 3.13% Asset Backed Notes (the "Class B Notes"),
which together with the Issuer's Class A-1 2.15% Asset Backed Notes (the
"Class A-1 Notes"), Class A-2A 2.59% Asset Backed Notes (the "Class A-2A
Notes"), Class A-2B 4.68% Asset Backed Notes (the "Class A-2B Notes" and
together with the Class A-2A Notes, the "Class A-2 Notes"), Class A-3 2.96%
Asset Backed Notes (the "Class A-3 Notes"), Class A-4 3.26% Asset Backed Notes
(the "Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, the "Class A Notes"), Class C 3.37% Asset
Backed Notes (the "Class C Notes") and Class D 5.60% Asset Backed Notes (the
"Class D Notes" and, together with the Class A Notes, the Class B Notes, and
the Class C Notes, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights and obligations thereunder of the Issuer,
the Indenture Trustee and the Noteholders. The Notes are subject to all terms
of the Indenture.
Subject to the subordination provisions of the Indenture, the Class A
Notes, Class B Notes, Class C Notes and Class D Notes are and will be equally
and ratably secured by the collateral pledged as security therefor as provided
in the Indenture.
Principal of the Class B Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 15, 2004.
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 Payment Date and the Prepayment 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 Class have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 of the
Indenture. All principal payments on the Class B Notes shall be made pro rata
to the Noteholders entitled thereto.
Payments of interest on this Note on each Payment 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 Business Days prior to such Payment Date and such Noteholder's Notes in
the aggregate evidence a denomination of not less than $1,000,000, or, if not,
by check mailed first-class 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
B-4
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 Payment 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 Payment 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 Payment Date by notice mailed or transmitted by facsimile prior
to such Payment 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 prepaid, in whole but
not in part, in the manner and to the extent described in the Indenture and
the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations,
the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder hereof or such Noteholder's
attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note
Registrar, and thereupon one or more new Notes of the same Class in authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for
any registration of transfer or exchange of this Note, but the transferor may
be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of
transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution
B-5
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 Issuer, or join in any institution
against 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 and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day
of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Issuer, the Indenture Trustee or any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes thereunder at any time
by the Issuer with the consent of the Holders of the Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling Class, as applicable, 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 Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
the Holders of the Notes issued thereunder.
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.
B-6
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be governed by, and construed in
accordance with the laws of the State of New York, without reference to its
conflicts of law provisions.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Indenture Trustee, in its individual
capacity, Owner Trustee, 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 holder of this Note, by such holder's
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.
B-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-----------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights 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.
B-8
EXHIBIT C
FORM OF CLASS C NOTE
[FOR BOOK-ENTRY NOTES] [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.]
PAYMENTS ON THIS NOTE ARE SUBORDINATE TO THE PAYMENT OF PRINCIPAL OF,
AND INTEREST ON, THE CLASS A NOTES AND THE CLASS B NOTES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $20,133,000
No. C-__ CUSIP NO. [ ]
WHOLE AUTO LOAN TRUST 2004-1
CLASS C 3.37% ASSET BACKED NOTES
Whole Auto Loan Trust 2004-1, a statutory 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 ___________________ dollars payable
on each Payment 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 $20,133,000 by (ii) the
aggregate amount, if any, payable to holders of Class C Notes on such Payment
Date from the Principal Distribution Account in respect of principal on the
Class C Notes pursuant to Section 3.1 of the Indenture dated as of November 9,
2004 (as from time to time amended, supplemented or otherwise modified and in
effect, the "Indenture"), between the Issuer and JPMorgan Chase Bank, 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 2011 Payment Date (the "Class C Final
Scheduled Payment Date") and the Prepayment Date, if any, pursuant to Section
10.1 of the Indenture. No payments of principal of the Class C Notes will be
made until the Class A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class
A-4 Notes and Class B Notes have been paid to the extent required under the
terms of the Indenture. Capitalized terms used but not defined
C-1
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 Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date) or the Closing Date in the case
of the first Payment Date, subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the 15th day of the calendar month immediately preceding
such Payment Date (or, in the case of the initial Payment Date, from the
Closing Date) to but excluding the 15th day of the calendar month of such
Payment Date. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
C-2
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:
WHOLE AUTO LOAN TRUST 2004-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee of Whole Auto Loan
Trust 2004-1
By:
---------------------------------
Authorized Officer
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class C Notes designated above and referred to
in the within-mentioned Indenture.
Date:
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By:
---------------------------------
Authorized Officer
C-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class C 3.37% Asset Backed Notes (the "Class C Notes"),
which together with the Issuer's Class A-1 2.15% Asset Backed Notes (the
"Class A-1 Notes"), Class A-2A 2.59% Asset Backed Notes (the "Class A-2A
Notes"), Class A-2B 4.68% Asset Backed Notes (the "Class A-2B Notes" and
together with the Class A-2A Notes, the "Class A-2 Notes"), Class A-3 2.96%
Asset Backed Notes (the "Class A-3 Notes"), Class A-4 3.26% Asset Backed Notes
(the "Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, the "Class A Notes"), Class B 3.13% Asset
Backed Notes (the "Class B Notes") and Class D 5.60% Asset Backed Notes (the
"Class D Notes" and, together with the Class A Notes, the Class B Notes, and
the Class C Notes, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights and obligations thereunder of the Issuer,
the Indenture Trustee and the Noteholders. The Notes are subject to all terms
of the Indenture.
Subject to the subordination provisions of the Indenture, the Class A
Notes, Class B Notes, Class C Notes and Class D Notes, are and will be equally
and ratably secured by the collateral pledged as security therefor as provided
in the Indenture.
Principal of the Class C Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 15, 2004.
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 C Final
Scheduled Payment Date and the Prepayment 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 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 C Notes shall be made pro rata
to the Noteholders entitled thereto.
Payments of interest on this Note on each Payment 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 Business Days prior to such Payment Date and such Noteholder's Notes in
the aggregate evidence a denomination of not less than $1,000,000, or, if not,
by check mailed first-class 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
C-4
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 Payment 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 Payment 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 Payment Date by notice mailed or transmitted by facsimile prior
to such Payment 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 C Rate to the extent lawful.
As provided in the Indenture, the Notes may be prepaid, in whole but
not in part, in the manner and to the extent described in the Indenture and
the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations,
the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder hereof or such Noteholder's
attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note
Registrar, and thereupon one or more new Notes of the same Class in authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for
any registration of transfer or exchange of this Note, but the transferor may
be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of
transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution
C-5
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 Issuer, or join in any institution
against 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 and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day
of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Issuer, the Indenture Trustee or any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes thereunder at any time
by the Issuer with the consent of the Holders of the Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling Class, as applicable, 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 Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
Holders of the Notes issued thereunder.
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.
C-6
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be governed by, and construed in
accordance with the laws of the State of New York, without reference to its
conflicts of law provisions.
No reference herein to the Indenture, and no provision of this Note
or of the Indenture, shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Indenture Trustee, in its individual
capacity, Owner Trustee, 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 holder of this Note, by such holder's
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.
C-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-----------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights 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.
C-8
EXHIBIT D
FORM OF CLASS D NOTE
[FOR BOOK-ENTRY NOTES] [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.]
PAYMENTS ON THIS NOTE ARE SUBORDINATE TO THE PAYMENT OF PRINCIPAL OF,
AND INTEREST ON, THE CLASS A NOTES, THE CLASS B NOTES AND THE CLASS C NOTES.
THIS CLASS D NOTE ("CLASS D NOTE") HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE APPLICABLE SECURITIES LAWS OF ANY STATE.
ACCORDINGLY, TRANSFER OF THIS CLASS D NOTE IS SUBJECT TO CERTAIN RESTRICTIONS
SET FORTH IN SECTION 2.5 OF THE INDENTURE. BY ITS ACCEPTANCE OF THIS CLASS D
NOTE, THE HOLDER OF THIS CLASS D NOTE IS DEEMED TO REPRESENT TO THE DEPOSITOR,
THE INDENTURE TRUSTEE AND THE ADMINISTRATOR THAT IT IS EITHER A "QUALIFIED
INSTITUTIONAL BUYER" (A "QIB"), AS SUCH TERM IS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") AND IS ACQUIRING THIS CLASS D NOTE FOR ITS OWN
ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENT FOR
OTHERS (WHICH OTHERS ALSO ARE QIBS) OR IT IS NOT A U.S. PERSON (AS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) AND IS ACQUIRING THIS CLASS D NOTE IN A
TRANSACTION OUTSIDE THE UNITED STATES IN RELIANCE ON REGULATION S UNDER THE
SECURITIES ACT.
NO SALE, PLEDGE OR OTHER TRANSFER OF A NOTE SHALL BE MADE UNLESS SUCH
SALE, PLEDGE OR OTHER TRANSFER IS (I)(A) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THE
TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A "QIB" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, OR (C) TO A PERSON THAT IS NOT A U.S. PERSON (AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT,
AND (II) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND
D-1
ANY OTHER RELEVANT JURISDICTION. EACH TRANSFEREE OF A BENEFICIAL INTEREST IN
THIS NOTE SHALL BE DEEMED TO MAKE THE FOREGOING REPRESENTATIONS. THE
DEPOSITOR, THE INDENTURE TRUSTEE AND THE ADMINISTRATOR MAY REQUIRE AN OPINION
OF COUNSEL TO BE DELIVERED TO IT IN CONNECTION WITH ANY TRANSFER OF THE NOTES
PURSUANT TO CLAUSES (A) OR (D) ABOVE. EACH TRANSFEREE OF A BENEFICIAL
INTEREST IN THIS NOTE SHALL BE DEEMED TO MAKE THE FOREGOING REPRESENTATIONS.
EACH TRANSFEREE OF A BENEFICIAL INTEREST IN THIS NOTE IS DEEMED TO
REPRESENT AND WARRANT THAT THE TRANSFEREE IS NOT AND IS NOT ACTING ON BEHALF
OF OR INVESTING THE ASSETS OF (A) AN "EMPLOYEE BENEFIT PLAN" (AS DEFINED IN
SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA")) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA OR
(B) A "PLAN" (AS DEFINED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE")) THAT IS SUBJECT TO SECTION 4975 OF THE CODE.
EACH TRANSFEREE OF A BENEFICIAL INTEREST IN THIS NOTE SHALL BE DEEMED TO MAKE
ONE OF THE FOREGOING REPRESENTATIONS.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS NOTE
MAY NOT BE EXCHANGED OR TRANSFERRED IN WHOLE OR IN PART FOR A NOTE REGISTERED
IN THE NAME OF ANY PERSON OTHER THAN THAT DEPOSITARY OR ITS NOMINEE EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
[THIS NOTE IS A RULE 144A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE.] [FOR RULE 144A GLOBAL NOTES ONLY]
[THIS NOTE IS A REGULATION S GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE.] [FOR REGULATION S GLOBAL NOTES ONLY]
[THIS NOTE IS A TEMPORARY REGULATION S GLOBAL NOTE WITHIN THE
MEANING OF THE INDENTURE.] [FOR TEMPORARY REGULATION S GLOBAL NOTES ONLY]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $55,366,000
No. D-1 CUSIP NO. [ ]
WHOLE AUTO LOAN TRUST 2004-1
CLASS D 5.60% ASSET BACKED NOTES
D-2
Whole Auto Loan Trust 2004-1, a statutory 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 ___________________ dollars payable,
as indicated from time to time on the Schedule of Exchanges in Global Note
attached hereto, on each Payment Date in an amount equal to the result
obtained by multiplying (i) a fraction the numerator of which is up to
$__________________ (the original face amount of this Note), as indicated from
time to time on the Schedule of Exchanges in Global Note attached hereto, and
the denominator of which is $55,366,000 by (ii) the aggregate amount, if any,
payable to holders of Class D Notes on such Payment Date from the Principal
Distribution Account in respect of principal on the Class D Notes pursuant to
Section 3.1 of the Indenture dated as of November 9, 2004 (as from time to
time amended, supplemented or otherwise modified and in effect, the
"Indenture"), between the Issuer and JPMorgan Chase Bank, 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 2011 Payment Date (the "Class D Final Scheduled Payment Date")
and the Prepayment Date, if any, pursuant to Section 10.1 of the Indenture. No
payments of principal of the Class D Notes will be made until the Class A-1
Notes and, except in the case of an Event of Default, the Class A-2 Notes,
Class A-3 Notes, Class A-4 Notes, Class B Notes and Class C Notes have been
paid to the extent required under the terms 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 Payment Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date) or the Closing Date in the case
of the first Payment Date, subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Note will accrue for each Payment Date
from and including the 15th day of the calendar month immediately preceding
such Payment Date (or, in the case of the initial Payment Date, from the
Closing Date) to but excluding the 15th day of the calendar month of such
Payment Date. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
D-3
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:
WHOLE AUTO LOAN TRUST 2004-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee of Whole Auto Loan
Trust 2004-1
By:
---------------------------------
Authorized Officer
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class D Notes designated above and referred to
in the within-mentioned Indenture.
Date:
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By:
---------------------------------
Authorized Officer
D-4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class D 5.60% Asset Backed Notes (the "Class D Notes"),
which together with the Issuer's Class A-1 2.15% Asset Backed Notes (the
"Class A-1 Notes"), Class A-2A 2.59% Asset Backed Notes (the "Class A-2A
Notes"), Class A-2B 4.68% Asset Backed Notes (the "Class A-2B Notes" and
together with the Class A-2A Notes, the "Class A-2 Notes"), Class A-3 2.96%
Asset Backed Notes (the "Class A-3 Notes"), Class A-4 3.26% Asset Backed Notes
(the "Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2
Notes and the Class A-3 Notes, the "Class A Notes"), Class B 3.13% Asset
Backed Notes (the "Class B Notes") and Class C 3.37% Asset Backed Notes (the
"Class C Notes" and, together with the Class A Notes, the Class B Notes, and
the Class D Notes, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights and obligations thereunder of the Issuer,
the Indenture Trustee and the Noteholders. The Notes are subject to all terms
of the Indenture.
Subject to the subordination provisions of the Indenture, the Class A
Notes, Class B Notes, Class C Notes and Class D Notes, are and will be equally
and ratably secured by the collateral pledged as security therefor as provided
in the Indenture.
Principal of the Class D Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the 15th day
of each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 15, 2004.
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 D Final
Scheduled Payment Date and the Prepayment 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 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 D Notes shall be made pro rata
to the Noteholders entitled thereto.
Payments of interest on this Note on each Payment 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 Business Days prior to such Payment Date and such Noteholder's Notes in
the aggregate evidence a denomination of not less than $1,000,000, or, if not,
by check mailed first-class 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
D-5
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
Payment 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 Payment 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 Payment Date by notice mailed or transmitted by facsimile
prior to such Payment 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 D Rate to the extent lawful.
As provided in the Indenture, the Notes may be prepaid, in whole but
not in part, in the manner and to the extent described in the Indenture and
the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations,
the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder hereof or such Noteholder's
attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Note
Registrar, and thereupon one or more new Notes of the same Class in authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for
any registration of transfer or exchange of this Note, but the transferor may
be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of
transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director
or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee, each in its individual capacity,
except as any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
D-6
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 Issuer, or join in any institution
against 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 and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day
of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Issuer, the Indenture Trustee or any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes thereunder at any time
by the Issuer with the consent of the Holders of the Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting the Noteholders of Notes
evidencing specified percentages of the principal amount of the Notes
Outstanding or of the Controlling Class, as applicable, 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 Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent of
Holders of the Notes issued thereunder.
The term "Issuer," as used in this Note, includes any successor to
the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
D-7
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 Indenture Trustee, in its individual
capacity, Owner Trustee, 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 holder of this Note, by such holder's
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.
D-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-----------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights 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.
D-9
SCHEDULE OF EXCHANGES IN GLOBAL NOTE
The initial principal amount of this Global Note as of the Closing
Date is U.S.$0.
The following exchanges of a part of this Global Note have been made:
Amount of Principal amount
Amount of increase in of this Global Signature of
decrease in principal amount Note following authorized officer
principal amount of this Global such decrease of Indenture
Date of Exchange of this Global Note (or increase) Trustee
Note
--------------------------------------------------------------------------------------------------------------
D-10
EXHIBIT E
FORM OF TRANSFEROR CERTIFICATE
[-----------], [----]
Whole Auto Loan Trust 2004-1
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Re: Purchase of $[_____________] principal amount
of Class D 5.60% Asset Backed Notes (the "Class D Notes")
---------------------------------------------------------
Reference is hereby made to the Indenture dated as of November 9,
2004 (the "Indenture") between Whole Auto Loan Trust 2004-1, as Issuer (the
"Issuer"), and JPMorgan Chase Bank, as Indenture Trustee (the "Indenture
Trustee"). Capitalized terms used but not defined herein shall have the
meanings given them in the Indenture.
This letter relates to $[______________] aggregate principal amount
of Class D Notes beneficially owned by [name of transferor] (the
"Transferor").
In accordance with Section 2.5(i) of the Indenture, the Transferor
does hereby certify that such Class D Notes are being transferred in
accordance with the transfer restrictions set forth in the Indenture and the
Class D Notes and [check the applicable subparagraph]:
_____ Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), to a transferee that is
purchasing the Class D Notes for its own account or an
account with respect to which the transferee exercises sole
investment discretion and that the Transferor reasonably
believes that each of the transferee and any such account is
a "qualified institutional buyer" within the meaning of Rule
144A under the Securities Act purchasing in a transaction
meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States
or any other jurisdiction; or
_____ Regulation S under the Securities Act ("Regulation S"), to a
person that is not a "U.S. Person" for purposes of
Regulation S in an "offshore transaction" for purposes of
Regulation S.
E-1
We acknowledge that the Issuer and the Indenture Trustee and others
will rely upon the truth and accuracy of the foregoing acknowledgments,
representations, warranties and agreements. You are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
(Name of Transferor)
By:
-----------------------------------------
Name:
Title:
Date:
E-2
SCHEDULE A
Schedule of Receivables
[On file with the Indenture Trustee]
SA-1
Appendix A
DEFINITIONS AND USAGE
The following rules of construction and usage shall be applicable to any
agreement or instrument that is governed by this Appendix:
(a) All terms defined in this Appendix shall have the defined meanings
when used in any agreement or instrument governed hereby and in any
certificate or other document made or delivered pursuant thereto unless
otherwise defined therein.
(b) As used herein, in any agreement or instrument governed hereby and
in any certificate or other document made or delivered pursuant thereto,
accounting terms not defined in this Appendix or in any such agreement,
instrument, certificate or other document, and accounting terms partly defined
in this Appendix or in any such agreement, instrument, certificate or other
document, to the extent not defined, shall have the respective meanings given
to them under generally accepted accounting principles as in effect on the
date of such agreement or instrument. To the extent that the definitions of
accounting terms in this Appendix or in any such agreement, instrument,
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Appendix or in any such instrument, certificate or other document shall
control.
The words "hereof," "herein," "hereunder" and words of similar import
when used in an agreement or instrument refer to such agreement or instrument
as a whole and not to any particular provision or subdivision thereof;
references in an agreement or instrument to "Article," "Section" or another
subdivision or to an attachment are, unless the context otherwise requires, to
an article, section or subdivision of or an attachment to such agreement or
instrument; and the term "including" and its variations shall be deemed to be
followed by "without limitation."
The definitions contained in this Appendix are equally applicable to
both the singular and plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
Any agreement, instrument or statute defined or referred to below or in
any agreement or instrument that is governed by this Appendix means such
agreement or instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver
or consent and (in the case of statutes) by succession of comparable successor
statutes and includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein. References to a
Person are also to its permitted successors and assigns.
Definitions
"Accrued Class A Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class A Noteholders' Monthly Accrued Interest for such
Payment Date and the Class A Noteholders' Interest Carryover Shortfall for
such Payment Date.
"Accrued Class B Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class B Noteholders' Monthly Accrued Interest for such
Payment Date and the Class B Noteholders' Interest Carryover Shortfall for
such Payment Date.
"Accrued Class C Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class C Noteholders' Monthly Accrued Interest for such
Payment Date and the Class C Noteholders' Interest Carryover Shortfall for
such Payment Date.
"Accrued Class D Note Interest" shall mean, with respect to any Payment
Date, the sum of the Class D Noteholders' Monthly Accrued Interest for such
Payment Date and the Class D Noteholders' Interest Carryover Shortfall for
such Payment Date.
"Act" shall have the meaning specified in Section 11.3(a) of the
Indenture.
"Adjusted Principal Balance" shall mean, as of any date of
determination, (i) if the interest rate per annum set forth on the Receivable
is at least equal to the Minimum Required APR, the Principal Balance of such
Receivable and (ii) if the interest rate per annum set forth on the Receivable
is less than the Minimum Required APR, the present value of all remaining
Scheduled Payments on such Receivable discounted on a monthly basis at the
Minimum Required APR.
"Administration Agreement" shall mean the Administration Agreement,
dated as of November 9, 2004, by and among the Administrator, the Issuer and
the Indenture Trustee.
"Administrator" shall mean Bear Xxxxxxx Investment Products Inc., in its
capacity as administrator under the Administration Agreement, or any successor
Administrator thereunder.
"Affiliate" shall mean, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any Person shall mean the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" shall have meanings correlative to the foregoing.
"Aggregate Servicing Fee" shall mean the aggregate of the Receivables
Servicer Servicing Fees and the Servicing Fee payable to the Servicer and the
Receivables Servicers on each Payment Date, which is equal to the product of
1/12th of 1.02% and the aggregate Principal Balance of the Receivables as of
the first day of the related Collection Period.
"ALFT II" shall mean Auto Loan Funding Trust II, a Delaware statutory
trust.
"ALFT II Receivables" shall mean the receivables retained by ALFT II and
not sold to the Depositor.
"ALFT II Receivables Purchase Agreement" shall mean the receivables
purchase agreement dated as of November 9, 2004 between ALFT II, as seller,
and the Depositor, as purchaser.
2
"XXXX III" shall mean Auto Loan Funding Trust III, a Delaware statutory
trust.
"XXXX III Receivables" shall mean the receivables retained by XXXX III
and not sold to the Depositor.
"XXXX III Receivables Purchase Agreement" shall mean the receivables
purchase agreement dated as of November 9, 2004 between the XXXX III, as
seller, and the Depositor, as purchaser.
"ALFT IV" shall mean Auto Loan Funding Trust IV, a Delaware statutory
trust.
"ALFT IV Receivables Purchase Agreement" shall mean the receivables
purchase agreement dated as of November 9, 2004 between ALFT IV, as seller,
and the Depositor, as purchaser.
"Amount Financed" shall mean, with respect to a Receivable, the amount
advanced under the Receivable toward the purchase price of the Financed
Vehicle and any related costs.
"Annualized Average Monthly Net Loss Rate" shall mean, with respect to
any date of determination, the product of (x) twelve and (y) the average of
the Monthly Net Loss Rates for each of the three preceding Collection Periods.
For the purpose of this definition, the "Monthly Net Loss Rate" means, for the
last day of any Collection Period, a fraction expressed as a percentage, the
numerator of which is equal to the sum of all net losses reported by the
Receivables Servicers for that Collection Period and the denominator of which
is equal to the aggregate principal balance of the Receivables as of the first
day of that Collection Period.
"Annual Percentage Rate" or "APR" of a Receivable shall mean the annual
rate of finance charges stated in the Receivable.
"Applicable Tax State" shall mean, as of any date of determination, the
State in which the Owner Trustee maintains its Corporate Trust Office.
"Authenticating Agent" shall have the meaning specified in Section 2.14
of the Indenture or 3.11 of the Trust Agreement, as applicable.
"Authorized Officer" shall mean, (i) with respect to the Issuer, any
officer within the Corporate Trust Office of the Owner Trustee, including any
vice president, assistant vice president, secretary, assistant secretary or
any other officer of the Owner Trustee customarily performing functions
similar to those performed by any of the above designated officers and, for so
long as the Administration Agreement is in full force and effect, any officer
of the Administrator who is authorized to act for the Administrator in matters
relating to the Issuer and to be acted upon by the Administrator pursuant to
the Administration Agreement; and (ii) with respect to the Indenture Trustee
or the Owner Trustee, any officer within the Corporate Trust Office of the
Indenture Trustee or the Owner Trustee, as the case may be, including any vice
president, assistant vice president, secretary, assistant secretary or any
other officer of the Indenture Trustee or the Owner Trustee, as the case may
be, customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
3
knowledge of and familiarity with the particular subject and shall also mean,
with respect to the Owner Trustee, any officer of the Administrator.
"Available Collections" shall mean, for any Payment Date, the sum of the
following amounts with respect to the Collection Period preceding such Payment
Date: (i) all payments collected on the Receivables (other than the portion of
any Obligor payment related to the interest accrued on each Receivable up to
its last scheduled payment date prior to October 1, 2004); (ii) all
Liquidation Proceeds attributable to Receivables which were designated as
Defaulted Receivables in the related Collection Period in accordance with the
related Receivables Servicer's customary servicing procedures; (iii) all
Recoveries; (iv) the Purchase Amount received with respect to each Receivable
that became a Purchased Receivable during such Collection Period; (v)
investment earnings, if any, on funds on deposit in the accounts established
in connection with the Trust, to the extent allocated to the Trust and (vi)
partial prepayments of any refunded item included in the Principal Balance of
a Receivable, such as extended warranty protection plan costs, or physical
damage, credit life, disability insurance premiums, or any partial prepayment
which causes a reduction in the Obligor's periodic payment to an amount below
the Scheduled Payment as of the Cut-off Date; provided, however, that in
calculating the Available Collections the following will be excluded: (a) the
servicing fee payable to each Receivables Servicer from Collections in respect
of the respective Receivables serviced by it; (b) all payments and proceeds
(including Liquidation Proceeds) of any Receivables the Purchase Amount of
which has been included in the Available Collections in a prior Collection
Period; and (c) any late fees, prepayment charges or other administrative fees
or similar charges allowed by applicable law, collected or retained by the
related Receivables Servicer during the related Collection Period.
"Bankruptcy Code" shall mean the United States Bankruptcy
Code, 11 U.S.C. 101 et seq., as amended.
"Basic Documents" shall mean the Certificate of Trust, the Trust
Agreement, the Sale and Servicing Agreement, the Receivables Purchase
Agreements, the Indenture, the Administration Agreement, the Underwriting
Agreement, the Note Depository Agreement and the other documents and
certificates delivered in connection therewith.
"Book-Entry Note" shall mean a beneficial interest in any of the Class
A-1 Notes, the Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, the Class B
Notes, the Class C Notes and the Class D Notes, in each case issued in
book-entry form.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions or trust companies in the State of New York,
the State of Delaware or the state in which the Corporate Trust Office of the
Indenture Trustee are authorized by law, regulation or executive order to be
closed.
"XXXX" shall mean Capital Auto Receivables, Inc., a Delaware
corporation, and its successors.
"Certificate Distribution Account" shall mean the account established
and maintained as such pursuant to Section 4.1 of the Sale and Servicing
Agreement.
4
"Certificateholder" or "holder of a Certificate" shall mean a Person in
whose name a Certificate is registered in the Certificate Register.
"Certificate of Trust" shall mean the Certificate of Trust in the form
of Exhibit B to the Trust Agreement filed for the Trust pursuant to Section
3810(a) of the Statutory Trust Statute.
"Certificate Paying Agent" shall mean any paying agent or co-paying
agent appointed pursuant to Section 3.9 of the Trust Agreement and shall
initially be JPMorgan Chase Bank.
"Certificate Percentage Interest" shall mean, with respect to a
Certificate, the percentage specified on such Certificate as the Certificate
Percentage Interest, which percentage represents the beneficial interest of
such Certificate in the Issuer. The aggregate Percentage Interest shall be
100%.
"Certificate Register" shall mean the certificate register maintained
pursuant to Section 3.4 of the Trust Agreement.
"Certificate Registrar" shall mean any certificate registrar acting in
accordance with Section 3.4 of the Trust Agreement and shall initially be the
Owner Trustee.
"Certificates" shall mean the certificates evidencing the beneficial
interest of a Certificateholder in the Trust, substantially in the form of
Exhibit A to the Trust Agreement; provided, however, that the Owner Trust
Estate has been pledged to the Indenture Trustee to secure payment of the
Notes and that the rights of the Certificateholders to receive distributions
on the Certificates are subordinated to the rights of the Noteholders as
described in the Sale and Servicing Agreement, the Indenture and the Trust
Agreement.
"Class" shall mean any one of the classes of Notes.
"Class A Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the sum of the Class A-1 Noteholders' Interest
Carryover Shortfall for such Payment Date, the Class A-2 Noteholders' Interest
Carryover Shortfall for such Payment Date, the Class A-3 Noteholders' Interest
Carryover Shortfall for such Payment Date and the Class A-4 Noteholders'
Interest Carryover Shortfall for such Payment Date.
"Class A Noteholders' Monthly Accrued Interest" shall mean, with respect
to any Payment Date, the sum of the Class A-1 Noteholders' Monthly Accrued
Interest for such Payment Date, the Class A-2 Noteholders' Monthly Accrued
Interest for such Payment Date, the Class A-3 Noteholders' Monthly Accrued
Interest for such Payment Date and the Class A-4 Noteholders' Monthly Accrued
Interest for such Payment Date.
"Class A Notes" shall mean, collectively, the Class A-1 Notes, the Class
A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.
"Class A Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount equal to the greater of (a) the Outstanding Amount of
the Class A-1 Notes immediately prior to such Payment Date and (b) an amount
equal to (i) the Outstanding Amount of the Class A Notes immediately prior to
such Payment Date minus (ii) the lesser of (A) 89.85% of the Pool
5
Balance for such Payment Date and (B) an amount equal to (1) the Pool Balance
for such Payment Date minus (2) the Target Overcollateralization Level for
such Payment Date; provided, however, that, on the Final Scheduled Payment
Date of any Class of Class A Notes, the Class A Principal Payment Amount shall
not be less than the amount that is necessary to pay that Class of Class A
Notes in full; and provided, further, that the Class A Principal Payment
Amount on any Payment Date shall not exceed the Outstanding Amount of the
Class A Notes on that Payment Date.
"Class A-1 Final Scheduled Payment Date" shall mean the November 2005
Payment Date.
"Class A-1 Noteholder" shall mean the Person in whose name a Class A-1
Note is registered in the Note Register.
"Class A-1 Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-1 Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-1 Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-1 Notes actually paid to the Class A-1 Notes on such preceding Payment Date,
plus interest on the amount of interest due but not paid to the Class A-1
Noteholders on such preceding Payment Date, to the extent permitted by law, at
the Class A-1 Rate.
"Class A-1 Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the prior
Payment Date (or, in the case of the first Payment Date, from and including
the Closing Date) to and including the day immediately prior to such Payment
Date, on the Class A-1 Notes at the Class A-1 Rate on the Outstanding Amount
of the Class A-1 Notes on the immediately preceding Payment Date (or, in the
case of the first Payment Date, the Closing Date), after giving effect to all
payments of principal to the Class A-1 Noteholders on or prior to such
preceding Payment Date. For all purposes of the Basic Documents, interest with
respect to the Class A-1 Notes shall be computed on the basis of the actual
number of days in the related Interest Period and a 360-day year.
"Class A-1 Notes" shall mean the $548,000,000 aggregate initial
principal amount Class A-1 2.15% Asset Backed Notes issued by the Trust
pursuant to the Indenture, substantially in the form of Exhibit A-1 to the
Indenture.
"Class A-1 Rate" shall mean 2.15% per annum.
"Class A-2 Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the sum of the Class A-2A Noteholders' Interest
Carryover Shortfall for such Payment Date and the Class A-2B Noteholders'
Interest Carryover Shortfall for such Payment Date.
"Class A-2 Noteholders' Monthly Accrued Interest " shall mean, with
respect to any Payment Date, the sum of the Class A-2A Noteholders' Monthly
Accrued Interest for such Payment Date and the Class A-2B Noteholders' Monthly
Accrued Interest for such Payment Date.
6
"Class A-2 Notes" shall mean, collectively, the Class A-2A Notes and the
Class A-2B Notes.
"Class A-2A Final Scheduled Payment Date" shall mean the May 2007
Payment Date.
"Class A-2A Noteholder" shall mean the Person in whose name a Class A-2A
Note is registered in the Note Register.
"Class A-2A Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-2A Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-2A Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-2A Notes actually paid to the Class A-2A Noteholders on such preceding
Payment Date, plus interest on the amount of interest due but not paid to the
Class A-2A Noteholders on such preceding Payment Date, to the extent permitted
by law, at the Class A-2A Rate.
"Class A-2A Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the 15th day
of the preceding calendar month (or in the case of the first Payment Date,
from and including the Closing Date) to but excluding the 15th day of the
month of such Payment Date on the Class A-2A Notes at the Class A-2A Rate on
the Outstanding Amount of the Class A-2A Notes on the preceding Payment Date
(after giving effect to all payments of principal on such preceding Payment
Date). For all purposes of the Basic Documents, interest with respect to the
Class A-2A Notes shall be computed on the basis of a 360-day year consisting
of twelve 30-day months.
"Class A-2A Notes" shall mean the $608,000,000 aggregate initial
principal amount Class A-2A 2.59% Asset Backed Notes issued by the Trust
pursuant to the Indenture, substantially in the form of Exhibit A-2A to the
Indenture.
"Class A-2A Rate" shall mean 2.59% per annum.
"Class A-2B Final Scheduled Payment Date" shall mean the May 2007
Payment Date.
"Class A-2B Noteholder" shall mean the Person in whose name a Class A-2B
Note is registered in the Note Register.
"Class A-2B Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-2B Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-2B Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-2B Notes actually paid to the Class A-2B Noteholders on such preceding
Payment Date, plus interest on the amount of interest due but not paid to the
Class A-2B Noteholders on such preceding Payment Date, to the extent permitted
by law, at the Class A-2B Rate.
"Class A-2B Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the 15th day
of the preceding calendar month
7
(or in the case of the first Payment Date, from and including the Closing
Date) to but excluding the 15th day of the month of such Payment Date on the
Class A-2B Notes at the Class A-2B Rate on the Outstanding Amount of the Class
A-2B Notes on the preceding Payment Date (after giving effect to all payments
of principal on such preceding Payment Date). For all purposes of this
Agreement and the other Basic Documents, interest with respect to the Class
A-2B Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
"Class A-2B Notes" shall mean the $25,000,000 aggregate initial
principal amount Class A-2B 4.68% Asset Backed Notes issued by the Trust
pursuant to the Indenture, substantially in the form of Exhibit A-2B to the
Indenture.
"Class A-2B Rate" shall mean 4.68% per annum.
"Class A-3 Final Scheduled Payment Date" shall mean the June 2008
Payment Date.
"Class A-3 Noteholder" shall mean the Person in whose name a Class A-3
Note is registered in the Note Register.
"Class A-3 Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-3 Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-3 Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-3 Notes actually paid to the Class A-3 Noteholders on such preceding Payment
Date, plus interest on the amount of interest due but not paid to the Class
A-3 Noteholders on such preceding Payment Date, to the extent permitted by
law, at the Class A-3 Rate.
"Class A-3 Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the 15th day
of the preceding calendar month (or in the case of the first Payment Date,
from and including the Closing Date) to but excluding the 15th day of the
month of such Payment Date on the Class A-3 Notes at the Class A-3 Rate on the
Outstanding Amount of the Class A-3 Notes on the preceding Payment Date (after
giving effect to all payments of principal on such preceding Payment Date).
For all purposes of the Basic Documents, interest with respect to the Class
A-3 Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
"Class A-3 Notes" shall mean $432,000,000 aggregate initial principal
amount Class A-3 2.96% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit A-3 to the Indenture.
"Class A-3 Rate" shall mean 2.96% per annum.
"Class A-4 Final Scheduled Payment Date" shall mean the March 2011
Payment Date.
"Class A-4 Noteholder" shall mean the Person in whose name a Class A-4
Note is registered in the Note Register.
8
"Class A-4 Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
A-4 Noteholders' Monthly Accrued Interest for the preceding Payment Date and
any outstanding Class A-4 Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
A-4 Notes actually paid to the Class A-4 Noteholders on such preceding Payment
Date, plus interest on the amount of interest due but not paid to the Class
A-4 Noteholders on such preceding Payment Date, to the extent permitted by
law, at the Class A-4 Rate.
"Class A-4 Noteholders' Monthly Accrued Interest" shall mean, with
respect to any Payment Date, interest accrued from and including the 15th day
of the preceding calendar month (or in the case of the first Payment Date,
from and including the Closing Date) to but excluding the 15th day of the
month of such Payment Date, on the Class A-4 Notes at the Class A-4 Rate on
the Outstanding Amount of the Class A-4 Notes on the preceding Payment Date
(after giving effect to all payments of principal on such preceding Payment
Date). For all purposes of the Basic Documents, interest with respect to the
Class A-4 Notes shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
"Class A-4 Notes" shall mean the $309,720,000 aggregate initial
principal amount Class A-4 3.26% Asset Backed Notes issued by the Trust under
the Indenture, substantially in the form of Exhibit A-4 to the Indenture.
"Class A-4 Rate" shall mean 3.26% per annum.
"Class B Final Scheduled Payment Date" shall mean the March 2011 Payment
Date.
"Class B Noteholder" shall mean the Person in whose name a Class B Note
is registered in the Note Register.
"Class B Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
B Noteholders' Monthly Accrued Interest for the preceding Payment Date and any
outstanding Class B Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
B Notes actually paid to the Class B Noteholders on such preceding Payment
Date, plus interest on the amount of interest due but not paid to the Class B
Noteholders on such preceding Payment Date, to the extent permitted by law, at
the Class B Rate.
"Class B Noteholders' Monthly Accrued Interest" shall mean, with respect
to any Payment Date, interest accrued from and including the 15th day of the
preceding calendar month (or in the case of the first Payment Date, from and
including the Closing Date) to but excluding the 15th day of the month of such
Payment Date on the Class B Notes at the Class B Rate on the Outstanding
Amount of the Class B Notes preceding Payment Date (after giving effect to all
payments of principal on such preceding Payment Date). For all purposes of the
Basic Documents, interest with respect to the Class B Notes shall be computed
on the basis of a 360-day year consisting of twelve 30-day months.
9
"Class B Notes" shall mean the $50,333,000 aggregate initial principal
amount Class B 3.13% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit B to the Indenture.
"Class B Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount equal to (a) the sum of (i) the Outstanding Amount of
the Class A Notes (after taking into account distribution of the Class A
Principal Payment Amount on such Payment Date) and (ii) the Outstanding Amount
of the Class B Notes immediately prior to such Payment Date minus (b) the
lesser of (i) 93.35% of the Pool Balance for such Payment Date and (ii) an
amount equal to (A) the Pool Balance for such Payment Date minus (B) the
Target Overcollateralization Level for such Payment Date; provided, however,
that, on the Class B Final Scheduled Payment Date, the Class B Principal
Payment Amount shall not be less than the amount that is necessary to pay the
Class B Notes in full; and provided, further, that the Class B Principal
Payment Amount on any Payment Date shall not exceed the Outstanding Amount of
the Class B Notes on that Payment Date.
"Class B Rate" shall mean 3.13% per annum.
"Class C Final Scheduled Payment Date" shall mean the March 2011 Payment
Date.
"Class C Noteholder" shall mean the Person in whose name a Class C Note
is registered in the Note Register.
"Class C Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
C Noteholders' Monthly Accrued Interest for the preceding Payment Date and any
outstanding Class C Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
C Notes actually paid to the Class C Noteholders on such preceding Payment
Date, plus interest on the amount of interest due but not paid to the Class C
Noteholders on such preceding Payment Date, to the extent permitted by law, at
the Class C Rate.
"Class C Noteholders' Monthly Accrued Interest" shall mean, with respect
to any Payment Date, interest accrued from and including the 15th day of the
preceding calendar month (or in the case of the first Payment Date, from and
including the Closing Date) to but excluding the 15th day of the month of such
Payment Date on the Class C Notes at the Class C Rate on the Outstanding
Amount of the Class C Notes on the preceding Payment Date (after giving effect
to all payments of principal on such preceding Payment Date). For all purposes
of the Basic Documents, interest with respect to the Class C Notes shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
"Class C Notes" shall mean the $20,133,000 aggregate initial principal
amount Class C 3.37% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit C to the Indenture.
"Class C Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount equal to (a) the sum of (i) the Outstanding Amount of
the Class A Notes (after taking into account distribution of the Class A
Principal Payment Amount on such Payment Date), (ii) the Outstanding Amount of
the Class B Notes (after taking into account distribution of the
10
Class B Principal Payment Amount on such Payment Date) and (iii) the
Outstanding Amount of the Class C Notes immediately prior to such Payment Date
minus (b) the lesser of (i) 94.75% of the Pool Balance for such Payment Date
and (ii) an amount equal to (A) the Pool Balance for such Payment Date minus
(B) the Target Overcollateralization Level for such Payment Date; provided,
however, that, on the Class C Final Scheduled Payment Date, the Class C
Principal Payment Amount shall not be less than the amount that is necessary
to pay the Class C Notes in full; and provided, further, that the Class C
Principal Payment Amount on any Payment Date shall not exceed the Outstanding
Amount of the Class C Notes on that Payment Date.
"Class C Rate" shall mean 3.37% per annum.
"Class D Final Scheduled Payment Date" shall mean the March 2011 Payment
Date.
"Class D Noteholder" shall mean the Person in whose name a Class D Note
is registered in the Note Register.
"Class D Noteholders' Interest Carryover Shortfall" shall mean, with
respect to any Payment Date, the amount, if any, by which the sum of the Class
D Noteholders' Monthly Accrued Interest for the preceding Payment Date and any
outstanding Class D Noteholders' Interest Carryover Shortfall on such
preceding Payment Date exceeds the amount in respect of interest for the Class
D Notes actually paid to the Class D Noteholders on such preceding Payment
Date, plus interest on the amount of interest due but not paid to the Class D
Noteholders on such preceding Payment Date, to the extent permitted by law, at
the Class D Rate.
"Class D Noteholders' Monthly Accrued Interest" shall mean, with respect
to any Payment Date, interest accrued from and including the 15th day of the
preceding calendar month (or in the case of the first Payment Date, from and
including the Closing Date) to but excluding the 15th day of the month of such
Payment Date on the Class D Notes at the Class D Rate on the Outstanding
Amount of the Class D Notes on the preceding Payment Date (after giving effect
to all payments of principal on such preceding Payment Date). For all purposes
of the Basic Documents, interest with respect to the Class D Notes shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
"Class D Notes" shall mean $55,366,000 aggregate initial principal
amount Class D 5.60% Asset Backed Notes issued by the Trust pursuant to the
Indenture, substantially in the form of Exhibit D to the Indenture.
"Class D Principal Payment Amount" shall mean, with respect to any
Payment Date, an amount (which will not be less than zero) equal to (a) 100%
of the Regular Principal Allocation for such Payment Date minus (b) an amount
equal to the sum of (i) the Class A Principal Payment Amount for such Payment
Date, (ii) the Class B Principal Payment Amount for such Payment Date and
(iii) the Class C Principal Payment Amount for such Payment Date; provided,
however, that, on the Class D Final Scheduled Payment Date, the Class D
Principal Payment Amount shall not be less than the amount that is necessary
to pay the Class D Notes in full; and provided, further, that the Class D
Principal Payable Amount on any Payment Date shall not exceed the Outstanding
Amount of the Class D Notes on that Payment Date.
"Class D Rate" shall mean 5.60% per annum.
11
"Clearance System" shall have the meaning specified in Section 2.2 of
the Indenture.
"Clearing Agency" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" shall mean November 9, 2004.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
Treasury Regulations promulgated thereunder.
"Collateral" shall have the meaning specified in the Granting Clause of
the Indenture.
"Collection Account" shall mean the account or accounts established and
maintained as such pursuant to Section 4.1 of the Sale and Servicing
Agreement.
"Collection Period" shall mean, with respect to the first Payment Date,
the period from and including the applicable Cut-off Date to and including
October 31, 2004 and, with respect to each subsequent Payment Date, the
calendar month preceding the calendar month in which the Payment Date occurs.
"Collections" shall mean all amounts collected by the Servicer (from
whatever source) on or with respect to the Receivables.
"Commission" shall mean the Securities and Exchange Commission.
"Controlling Class" shall mean (i) if the Class A Notes have not been
paid in full, the Class A Notes, (ii) if the Class A Notes have been paid in
full and Class B Notes remain Outstanding, the Class B Notes, (iii) if the
Class A Notes and the Class B Notes have been paid in full and Class C Notes
remain Outstanding, the Class C Notes, and (iv) if the Class A Notes, the
Class B Notes and the Class C Notes have been paid in full, the Class D Notes.
"Corporate Trust Office" shall mean, (i) with respect to the Owner
Trustee, the principal corporate trust office of the Owner Trustee located at
0000 Xxxxxx Xxxxxx Xxxxx, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000 or at such other address as the Owner Trustee may designate from
time to time by notice to the Certificateholders and the Depositor, or the
principal corporate trust office of any successor Owner Trustee (the address
of which the successor Owner Trustee will notify the Certificateholders and
the Depositor); and (ii) with respect to the Indenture Trustee, the principal
corporate trust office of the Indenture Trustee located at 0 Xxx Xxxx Xxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: ITS Structured Finance,
or at such other address as the Indenture Trustee may designate from time to
time by notice to the Noteholders and the Issuer, or the principal corporate
trust office of any successor Indenture Trustee (the address of which the
successor Indenture Trustee will notify the Noteholders and the Issuer).
12
"Cut-off Date" shall mean (i) October 1, 2004 with respect to the Ford
Credit Receivables and the GMAC Receivables and (ii) September 27, 2004 with
respect to the DCS Receivables.
"Data Administration Agreement" shall mean the Amended and Restated Data
Administration Agreement dated as of October 7, 2004 among the Servicer, the
Depositor, Systems & Services Technologies, Inc., as the initial data
administrator, and the Indenture Trustee.
"Data Administrator" shall mean Bear Xxxxxxx Asset Receivables Corp., in
its capacity as successor data administrator to Systems & Services
Technologies, Inc. under the Data Administration Agreement, or any successor
thereunder.
"DCS" shall mean Daimler Chrysler Services North America LLC, a Michigan
limited liability company, and its successors.
"DCS Deposit Account" shall mean the Deposit Account as defined in the
Servicing and Administration Agreement dated as of October 12, 2004 among ALFT
IV, DCS and the Depositor, bearing account number 00000000.1 at JPMorgan Chase
Bank.
"DCS Servicing Agreement" shall mean the Servicing and Administration
Agreement dated as of October 12, 2004 among ALFT IV, DCS, as servicer, and
the Depositor.
"DCS Receivables" shall mean the Receivables listed in Schedule A to the
Sale and Servicing Agreement as DCS Receivables, which Receivables were sold
by DCS to ALFT IV and then by ALFT IV to the Depositor.
"Dealer" shall mean a dealer who sold a Financed Vehicle and who
originated and sold the related Receivable, directly or indirectly, to DCS,
Ford Credit or GMAC.
"Default" shall mean any occurrence that is, or with notice or the lapse
of time or both would become, an Event of Default.
"Defaulted Receivable" shall mean a Receivable that the related
Receivable Servicer determines is unlikely to be paid in full.
"Definitive Certificates" shall have the meaning specified in Section
3.10 of the Trust Agreement.
"Definitive Notes" shall have the meaning specified in Section 2.11 of
the Indenture.
"Deposit Account Agreement" shall mean, individually, any of (i) the
Amended and Restated Deposit Account Agreement dated as of November 9, 2004 by
and among ALFT II, Whole Auto Loan Trust 2002-1, XXXX 2003-1, Special
Multi-Asset Receivables Trust, Series 2004-1, the Trust, the Servicer and
JPMorgan Chase Bank; (ii) the Amended and Restated Deposit Account Agreement
dated as of November 9, 2004 by and among the Depositor, ALFT II, the Trust,
the Servicer and Xxxxx Fargo Bank, National Association; (iii) the Amended and
Restated Deposit Account Agreement dated as of November 9, 2004 by and among
XXXX III,
13
XXXX 2003-1, Special Multi-Asset Receivables Trust, Series 2004-1, the Trust,
the Servicer and JPMorgan Chase Bank; and (iv) the Amended and Restated
Deposit Account Agreement dated as of November 9, 2004 by and among the
Depositor, ALFT IV, the Trust, the Servicer and JPMorgan Chase Bank. "Deposit
Account Agreements" shall mean, collectively, the agreements described in
clauses (i) through (iv) above.
"Depositor" shall mean Bear Xxxxxxx Asset Backed Funding II Inc., a
Delaware corporation and its successors and permitted assigns.
"Depository Institution" shall mean JPMorgan Chase Bank as the
depository institution at which the DCS Deposit Account, the Ford Credit
Deposit Account and the GMAC Deposit Account created as of September 9, 2003
are maintained and shall mean Xxxxx Fargo Bank, National Association with
respect to the remaining GMAC Deposit Account.
"Determination Date" shall mean, with respect to any Collection Period,
the Business Day immediately preceding the Payment Date following such
Collection Period.
"Eligible Deposit Account" shall mean either (i) a segregated account
with an Eligible Institution or (ii) a segregated trust account with the
corporate trust department of a depository institution organized under the
laws of the U.S. or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each
Rating Agency in one of its generic rating categories which signifies
investment grade.
"Eligible Institution" shall mean either (i) the corporate trust
department of the Indenture Trustee or the related Trustee, as applicable;
(ii) a depository institution organized under the laws of the U.S. or any one
of the states thereof or the District of Columbia (or any domestic branch of a
foreign bank), (1) which has either (A) a long-term unsecured debt rating of
at least "AA-" by Standard & Poor's and "Aa3" by Moody's or (B) a short-term
unsecured debt rating or certificate of deposit rating of "A-1+" by Standard &
Poor's and "Prime-1" by Moody's and (2) whose deposits are insured by the
Federal Deposit Insurance Corporation or (iii) any depository institution or
trust company in respect of which the Rating Agency Condition is satisfied.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Event of Default" shall have the meaning specified in Section 5.1 of
the Indenture.
"Event of Servicing Termination" shall mean an event specified in
Section 7.1 of the Sale and Servicing Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Date" shall mean December 19, 2004.
"Executive Officer" shall mean, with respect to any corporation, the
Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President,
14
any Vice President, the Secretary or the Treasurer of such corporation and,
with respect to any partnership, any general partner thereof.
"Final Scheduled Payment Date" shall mean, with respect to (i) the Class
A-1 Notes, the Class A-1 Final Scheduled Payment Date, (ii) the Class A-2A
Notes, the Class A-2A Final Scheduled Payment Date, (iii) the Class A-2B
Notes, the Class A-2B Final Scheduled Payment Date, (iv) the Class A-3 Notes,
the Class A-3 Final Scheduled Payment Date, (v) the Class A-4 Notes, the Class
A-4 Final Scheduled Payment Date, (vi) the Class B Notes, the Class B Final
Scheduled Payment Date, (vii) the Class C Notes, the Class C Final Scheduled
Payment Date, and (viii) the Class D Notes, the Class D Final Scheduled
Payment Date.
"Financed Vehicle" shall mean a new or used automobile or light-duty
truck, together with all accessions thereto, securing an Obligor's
indebtedness under the respective Receivable.
"First Allocation of Principal" shall mean, with respect to any Payment
Date, the excess, if any, of (x) the aggregate Outstanding Amount of the Class
A Notes (as of the day immediately preceding such Payment Date) over (y) the
Pool Balance for such Payment Date.
"Ford Credit" shall mean Ford Motor Credit Company, a Delaware
corporation, and its successors.
"Ford Credit Acknowledgment" shall mean the acknowledgement executed by
Ford Credit to service the Receivables purchased by the Depositor pursuant to
the XXXX III Receivables Purchase Agreement on behalf of the Issuer.
"Ford Credit Deposit Account" shall mean the Collection Account as
defined in the Servicing Agreement dated as of September 1, 2003 between the
Depositor and Ford Credit, bearing account number 00000000.1 at JPMorgan Chase
Bank.
"Ford Credit Receivables" shall mean the Receivables listed in Schedule
A to the Sale and Servicing Agreement as the Ford Credit Receivables, which
Receivables were sold by XXXX III to the Depositor.
"Ford Credit Servicer Report" shall mean the Monthly Servicer Reports as
defined in the Ford Credit Servicing Agreement, but based solely on the Ford
Credit Receivables.
"Ford Credit Servicing Agreement" shall mean the Servicing Agreement
dated as of September 1, 2003 between the Depositor, as purchaser, and Ford
Credit, as servicer.
"Global Note" shall have the meaning specified in Section 2.2 of the
Indenture.
"GMAC" shall mean General Motors Acceptance Corporation, a Delaware
corporation, and its successors.
"GMAC Deposit Accounts" shall mean (i) the Collection Account as defined
in the GMAC Servicing Agreement dated as of September 9, 2003 between the
Depositor and GMAC and bearing account number 00000000.1 at JPMorgan Chase
Bank and (ii) the Collection Account as defined in the GMAC Servicing
Agreement dated as of October 25, 2004 between
15
the Depositor and GMAC and bearing account number 00000000 at Xxxxx Fargo
Bank, National Association.
"GMAC Servicing Agreements" shall mean, collectively, (i) the Servicing
Agreement dated as of September 9, 2003 between the Depositor, as purchaser,
and GMAC, as servicer and (ii) the Servicing Agreement dated as of October 25,
2004 between the Depositor, as purchaser, and GMAC, as servicer.
"GMAC Receivables" shall mean the Receivables listed on Schedule A to
the Sale and Servicing Agreement as the GMAC Receivables.
"Grant" shall mean to mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and to xxxxx x
xxxx upon and a security interest in and right of set-off against, and to
deposit, set over and confirm pursuant to the Indenture. A Grant of the
Collateral or of any other agreement or instrument shall include all rights,
powers and options (but none of the obligations) of the granting party
thereunder, including the immediate and continuing right to claim for,
collect, receive and give receipt for principal and interest payments in
respect of the Collateral and all other monies payable thereunder, to give and
receive notices and other communications, to make waivers or other agreements,
to exercise all rights and options, to bring Proceedings in the name of the
granting party or otherwise, and generally to do and receive anything that the
granting party is or may be entitled to do or receive thereunder or with
respect thereto.
"Indenture" shall mean the Indenture, dated as of November 9, 2004, by
and between the Trust and the Indenture Trustee.
"Indenture Trustee" shall mean JPMorgan Chase Bank, a New York banking
corporation, not in its individual capacity but solely as Indenture Trustee
under the Indenture, or any successor Indenture Trustee under the Indenture.
"Indenture Trust Estate" shall mean all money, instruments, rights and
other property that are subject or intended to be subject to the lien and
security interest of Indenture for the benefit of the Noteholders (including,
without limitation, all property and interests Granted to the Indenture
Trustee), including all proceeds thereof.
"Independent" shall mean, when used with respect to any specified
Person, that such Person (a) is in fact independent of the Issuer, any other
obligor on the Notes, the Seller and any Affiliate of any of the foregoing
Persons, (b) does not have any direct financial interest or any material
indirect financial interest in the Issuer, any such other obligor, the
Depositor or any Affiliate of any of the foregoing Persons and (c) is not
connected with the Issuer, any such other obligor, the Depositor or any
Affiliate of any of the foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
"Independent Certificate" shall mean a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of the
Indenture, made by an Independent appraiser or other expert appointed by an
Issuer Order and approved by the Indenture Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer
has read the
16
definition of "Independent" in the Indenture and that the signer is
Independent within the meaning thereof.
"Insolvency Event" shall mean, with respect to any Person, (i) the
making of a general assignment for the benefit of creditors, (ii) the filing
of a voluntary petition in bankruptcy, (iii) being adjudged a bankrupt or
insolvent, or having had entered against such Person an order for relief in
any bankruptcy or insolvency proceeding, (iv) the filing by such Person of a
petition or answer seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute,
law or regulation, (v) the filing by such Person of an answer or other
pleading admitting or failing to contest the material allegations of a
petition filed against such Person in any proceeding specified in (vii) below,
(vi) seeking, consent to or acquiescing in the appointment of a trustee,
receiver or liquidator of such Person or of all or any substantial part of the
assets of such Person or (vii) the failure to obtain dismissal within 60 days
of the commencement of any proceeding against such Person seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation, or the
entry of any order appointing a trustee, liquidator or receiver of such Person
or of such Person's assets or any substantial portion thereof.
"Interest Period" shall mean, with respect to any Payment Date (i) with
respect to the Class A-1 Notes, from and including the Closing Date (in the
case of the first Payment Date) or from and including the most recent Payment
Date on which interest has been paid to but excluding the following Payment
Date and (ii) with respect to the Class A-2 Notes, Class A-3 Notes, Class A-4
Notes, Class B Notes, Class C Notes and Class D Notes, from and including the
Closing Date (in the case of the first Payment Date) or from and including the
15th day of the calendar month preceding each Payment Date to but excluding
the 15th day of the calendar month of such Payment Date. Interest with respect
to the Class A-1 Notes will be computed on the basis of the actual number of
days in the related Interest Period. Interest with respect to the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes, the Class C Notes and the Class D Notes will be computed on the
basis of a 360-day year consisting of twelve 30-day months.
"Investor Report" shall mean the Report prepared by the Servicer
pursuant to Section 3.8 of the Sale and Servicing Agreement containing, among
other things, the information set forth in Section 4.7 of the Sale and
Servicing Agreement.
"IRS" shall mean the Internal Revenue Service.
"Issuer" shall mean the Trust unless a successor replaces it and,
thereafter, shall mean the successor.
"Issuer Order" and "Issuer Request" shall mean a written order or
request signed in the name of the Issuer by any one of its Authorized Officers
and delivered to the Indenture Trustee.
"Lien" shall mean a security interest, lien, charge, pledge, equity, or
encumbrance of any kind other than, in respect of a Receivable, tax liens,
mechanics' liens, and any liens which attach to the respective Receivable by
operation of law.
17
"Liquidated Receivable" shall mean: (i) any Receivable that, by its
terms, is in default and as to which the applicable Receivables Servicer has
determined, in accordance with its customary servicing procedures, that
eventual payment in full is unlikely or has repossessed and disposed of the
related Financed Vehicle and (ii) any Receivable with respect to which the
related Obligor has become a debtor in a bankruptcy proceeding.
"Liquidation Proceeds" shall mean with respect to any Receivable (a)
insurance proceeds received by the related Receivables Servicer and (b) monies
collected by the related Receivables Servicer from whatever source, including
but not limited to proceeds of Financed Vehicles after repossession, on a
Defaulted Receivable, net of any payments required by law to be remitted to
the Obligor.
"Memorandum" shall mean the Private Placement Memorandum dated October
29, 2004, relating to Class D Notes.
"Minimum Required APR" shall mean a rate per annum equal to 6.75%.
"Monthly Data File" shall mean (i) with respect to the DCS Receivables,
the monthly data tapes delivered under the DCS Servicing Agreement, (ii) with
respect to the Ford Credit Receivables, the Monthly Data Files as defined in
the Ford Credit Servicing Agreement and (iii) with respect to the GMAC
Receivables, the Monthly Data File as defined in the GMAC Servicing
Agreements.
"Monthly Receivables Tape" shall mean a computer tape or disk containing
the information about the Receivables necessary to prepare the written
statements to be furnished by the Owner Trustee to the Certificateholders
pursuant to Section 3.8 of the Sale and Servicing Agreement and by the
Indenture Trustee to the Noteholders pursuant to Section 3.8 of the Sale and
Servicing Agreement.
"Monthly Remittance Condition" shall mean with respect to Ford Credit or
GMAC that each of the following is true: (a) no Event of Servicing Termination
(as defined in the applicable Receivables Servicing Agreement) has occurred
during the related Collection Period and (b) the rating of the applicable
Receivables Servicer's short-term unsecured debt is at least "P-1" by Moody's
and is at least "A-1" by Standard & Poor's.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its successor in
interest.
"Note Depositary Agreement" shall mean collectively (i) the Letter of
Representations, dated as of November 8, 2004 by and among the Issuer, the
Indenture Trustee, as agent and The Depository Trust Company regarding the
Offered Notes and (ii) the Letter of Representations, dated as of November 8,
2004 by and among the Issuer, the Indenture Trustee, as agent and The
Depository Trust Company regarding the Class D Notes.
"Note Depository" shall mean The Depository Trust Company or any
successor depository.
"Noteholder" or "holder of a Note" shall mean the Person in whose name a
Note is registered on the Note Register.
18
"Note Interest Rate" shall mean the Class A-1 Rate, the Class A-2A Rate,
the Class A-2B Rate, the Class A-3 Rate, the Class A-4 Rate, the Class B Rate,
the Class C Rate or the Class D Rate, as applicable.
"Note Owner" shall mean, with respect to any Book-Entry Note, the Person
who is the beneficial owner of such Book-Entry Note, as reflected on the books
of the Clearing Agency or on the books of a Person maintaining an account with
such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Note Paying Agent" shall mean the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 of the Indenture and is authorized by the Issuer to make payments
to and distributions from the Collection Account (including the Principal
Distribution Account), including payment of principal of or interest on the
Notes on behalf of the Issuer.
"Note Pool Factor" shall mean, with respect to each Class of Notes as of
the close of business on the last day of a Collection Period, a nine-digit
decimal figure equal to the outstanding principal balance of such Class of
Notes (after giving effect to any reductions thereof to be made on the
immediately following Payment Date) divided by the original outstanding
principal balance of such Class of Notes. The Note Pool Factor will be
1.00000000 as of the Closing Date; thereafter, the Note Pool Factor will
decline to reflect reductions in the outstanding principal amount of such
Class of Notes.
"Note Register" and "Note Registrar" shall have the respective meanings
specified in Section 2.5 of the Indenture.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes and the
Class D Notes, collectively.
"Obligor" on a Receivable shall mean the purchaser or co-purchasers of
the Financed Vehicle or any other Person who owes payments under the
Receivable.
"Offered Notes" shall mean, collectively, the Class A Notes, the Class B
Notes, and the Class C Notes.
"Officer's Certificate" shall mean (i) with respect to the Trust, a
certificate signed by any two Authorized Officers of the Trust and (ii) with
respect to the Depositor or the Servicer, a certificate signed by the chairman
of the board, the president, any executive or senior vice president, any vice
president, the treasurer or the controller of the Depositor or the Servicer,
as applicable.
"Opinion of Counsel" shall mean a written opinion of counsel which
counsel shall be acceptable to the Indenture Trustee, the Owner Trustee or the
Rating Agencies, as applicable.
"Optional Purchase Percentage" shall mean 10%.
19
"Original Pool Balance" shall mean an amount equal to the aggregate
Adjusted Principal Balance, as of the Cut-off Date, of the Receivables, which
shall be $2,013,319,286.18.
"Outstanding" shall mean with respect to the Notes, as of the date of
determination, all Notes theretofore authenticated and delivered under the
Indenture, as applicable, except:
(a) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the
Indenture Trustee or any Note Paying Agent in trust for the
Noteholders of such Notes (provided, however, that if such Notes
are to be prepaid, notice of such prepayment has been duly given
pursuant to the Indenture or provision for such notice has been
made, satisfactory to the Indenture Trustee); and
(c) Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to the Indenture unless
proof satisfactory to the Indenture Trustee or the Note Registrar,
as applicable, is presented that any such notes are held by a bona
fide purchaser;
provided, that in determining whether the holders of Notes evidencing the
requisite Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent, or waiver under any Basic Document,
Notes owned by the Issuer, any other obligor upon the Notes, the Depositor,
the Servicer or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee, shall be protected in relying on any such
request, demand, authorization, direction, notice, consent, or waiver, only
Notes that a Responsible Officer of the Indenture Trustee knows to be so owned
shall be so disregarded; provided, however, if the Issuer, any other obligor
upon the Notes, the Depositor, the Servicer or any Affiliate of any of the
foregoing Persons owns an entire Class of Notes, such Notes shall be deemed to
be Outstanding. Notes owned by the Issuer, any other obligor upon the Notes,
the Depositor, the Servicer or any Affiliate of any of the foregoing Persons
that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Depositor, the Servicer or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" shall mean, as of any date of determination and as
to any Notes, the aggregate principal amount of such Notes Outstanding as of
such date of determination.
"Owner Trustee" shall mean Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as Owner Trustee under
the Trust Agreement, or any successor Owner Trustee under the Trust Agreement.
"Owner Trust Estate" shall mean all right, title and interest of the
Trust in, to and under the property and rights assigned to the Trust pursuant
to Article II of the Sale and Servicing Agreement.
20
"Participant" shall mean a participant in or member of the Note
Depository.
"Payment Date" shall mean the fifteenth (15th) day of each calendar
month or, if such day is not a Business Day, the next succeeding Business Day.
"Percentage Interest" shall mean, with respect to a Certificate, the
individual percentage interest of such Certificate, which shall be specified
on the face thereof, in the distributions on the Certificates. The sum of the
Percentage Interests for all Certificates shall be 100%.
"Permitted Investments" shall mean, on any date of determination,
book-entry securities, negotiable instruments or securities represented by
instruments in bearer or registered form with maturities not exceeding the
Business Day preceding the next Payment Date which evidence:
(a) direct non-callable obligations of, and obligations fully
guaranteed as to timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
of any depository institution or trust company incorporated under
the laws of the United States of America or any state thereof (or
any domestic branch of a foreign bank) and subject to supervision
and examination by federal or State banking or depository
institution authorities; provided, however, that at the time of the
investment or contractual commitment to invest therein, the
commercial paper or other short-term unsecured debt obligations
(other than such obligations the rating of which is based on the
credit of a Person other than such depository institution or trust
company) thereof shall have a credit rating from each of the Rating
Agencies in the highest investment category granted thereby;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the
Rating Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating from
each of the Rating Agencies in the highest investment category
granted thereby (including funds for which the Indenture Trustee or
the Owner Trustee or any of their respective Affiliates is
investment manager or advisor);
(e) bankers' acceptances issued by any depository institution
or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that
is a direct non-callable obligation of, or fully guaranteed by, the
United States of America or any agency or instrumentality thereof
the obligations of which are backed by the full faith and credit of
the United States of America, in either case entered into with a
depository institution or trust company (acting as principal)
described in clause (b); and
(g) any other investment with respect to which the Rating
Agency Condition is satisfied.
21
"Person" shall mean any individual, corporation, estate, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization, or government or any agency or political
subdivision thereof.
"Plan" shall mean an employee benefit plan (as defined in section 3(3)
of ERISA) that is subject to Title I of ERISA, a plan (as defined in section
4975(e)(1) of the Code) and any entity whose underlying assets include plan
assets by reason of a plan's investment in the entity or otherwise.
"Pool Balance" shall mean, with respect to any Payment Date, an amount
equal to the aggregate Adjusted Principal Balance of the Receivables at the
end of the related Collection Period, after giving effect to all payments of
principal received from Obligors and Purchase Amounts to be remitted for the
related Collection Period.
"Pool Factor" as of the last day of a Collection Period shall mean a
nine-digit decimal figure equal to the Pool Balance at that time divided by
the Original Pool Balance.
"Predecessor Note" shall mean, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note and, for purposes of this definition, any
Note authenticated and delivered under Section 2.6 of the Indenture in lieu of
a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Note.
"Prepayment Date" shall mean with respect to a prepayment of the Notes
pursuant to Section 10.1 of the Indenture, the Payment Date specified by the
Servicer or the Issuer pursuant to Section 10.1 of the Indenture.
"Prepayment Price" shall mean in the case of a Class of Notes to be
prepaid, an amount equal to the unpaid principal amount of such Class of Notes
plus accrued and unpaid interest thereon at the applicable Note Interest Rate
plus interest on any overdue interest at the applicable Note Interest Rate (to
the extent lawful) to but excluding the Prepayment Date.
"Principal Balance" shall mean, with respect to any Receivable, as of
the related date of determination, the Amount Financed minus an amount equal
to, as of the close of business on the last day of the related Collection
Period, that portion of all amounts received on or prior to such day with
respect to such Receivable and allocable to principal.
"Principal Distribution Account" shall mean the administrative
sub-account of the Collection Account established and maintained as such
pursuant to Section 4.1 of the Sale and Servicing Agreement.
"Proceeding" shall mean any suit in equity, action at law or other
judicial or administrative proceeding.
"Prospectus" shall have the meaning specified in the Underwriting
Agreement.
"Prospectus Supplement" shall have the meaning specified in the
Underwriting Agreement.
22
"Purchase Amount" shall mean, (i) with respect to a Purchased Receivable
that is a DCS Receivable, an amount equal to the principal balance of such
Receivable on the date of purchase plus accrued and unpaid interest thereon to
the end of the month of such purchase, (ii) with respect to a Purchased
Receivable that is a Ford Credit Receivable, an amount equal to the principal
balance of such Receivable on the date of purchase, plus accrued and unpaid
interest to the date of such purchase and (iii) with respect to a Purchased
Receivable that is a GMAC Receivable, an amount equal to the principal balance
of such Receivable on the date of purchase.
"Purchased Receivable" shall mean a Receivable purchased as of the close
of business on the last day of the respective Collection Period by the
Servicer pursuant to Section 3.6 of the Sale and Servicing Agreement or by the
Depositor, DCS, GMAC or XXXX (as applicable) pursuant to Section 2.3 of the
Sale and Servicing Agreement.
"Qualified Institutional Buyer" shall mean a qualified institutional
buyer within the meaning of Rule 144A under the Securities Act.
"Rating Agency" shall mean each of the nationally recognized statistical
rating organizations designated by the Depositor to provide a rating on the
Notes which is then rating such Notes. If no such organization or successor is
any longer in existence, "Rating Agency" shall be a nationally recognized
statistical rating organization or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Indenture
Trustee, the Owner Trustee and the Servicer.
"Rating Agency Condition" shall mean, with respect to any action, that
each of the Rating Agencies shall have notified the Servicer, the Depositor,
the Owner Trustee and the Indenture Trustee in writing that such action will
not result in a reduction or withdrawal of the then current rating of any of
the Notes.
"Receivables" shall mean the motor vehicle retail installment sales
contracts and loans listed on Schedule A to the Sale and Servicing Agreement
and all proceeds thereof and payments thereunder.
"Receivable Files" shall mean the documents specified in Section 2.4 of
the Sale and Servicing Agreement.
"Receivables Purchase Agreements" shall mean, collectively, (i) the ALFT
II Receivables Purchase Agreement, (ii) the XXXX III Receivables Purchase
Agreement and (iii) the ALFT IV Receivables Purchase Agreement.
"Receivables Servicer" shall mean (i) DCS with respect to the DCS
Receivables, (ii) Ford Credit with respect to the Ford Credit Receivables and
(iii) GMAC with respect to the GMAC Receivables.
"Receivables Servicer Servicing Fee" shall mean, with respect to a
Collection Period and a Receivables Servicer, the fee payable to such
Receivables Servicer for services rendered during such Collection Period,
which shall equal one-twelfth of the Receivables Servicing Fee Rate multiplied
by the aggregate Principal Balance of those Receivables serviced by such
Receivables Servicer as of the first day of such Collection Period.
23
"Receivables Servicing Agreement" shall mean any of the DCS Servicing
Agreement, the Ford Credit Servicing Agreement or the GMAC Servicing
Agreements.
"Receivables Servicing Fee Rate" shall mean 1.00%.
"Record Date" shall mean, with respect to any Payment Date or Prepayment
Date and any Book-Entry Security, the close of business on the day prior to
such Payment Date or Prepayment Date or, with respect to any Definitive Note
or Definitive Certificate, the last day of the month preceding the month in
which such Payment Date or Prepayment Date occurs.
"Recoveries" shall mean, with respect to any Collection Period, all
amounts received by the Servicer with respect to any Defaulted Receivable
during any Collection Period following the Collection Period in which such
Receivable became a Defaulted Receivable, net of any fees, costs and expenses
incurred by the related Receivables Servicer and the Servicer in connection
with the collection of such Receivable and any payments required by law to be
remitted to the Obligor.
"Registered Noteholder" shall mean the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Registration Statement" shall mean Registration Statement No.
333-107577 filed by the Depositor with the Commission in the form in which it
became effective on September 10, 2003.
"Regular Principal Allocation" shall mean, with respect to any Payment
Date, the greater of (i) the Outstanding Amount of the Class A-1 Notes as of
the day immediately preceding such Payment Date and (ii) the excess, if any,
of the aggregate Outstanding Amount of the Notes as of the day immediately
preceding such Payment Date over (a) the Pool Balance at the end of the
related Collection Period minus (b) the Target Overcollateralization Level for
such Payment Date; provided that the Regular Principal Allocation shall not
exceed the aggregate Outstanding Amount of the Notes; provided further that
the Regular Principal Allocation on or after the Final Scheduled Payment Date
of any Class shall not be less than the amount that is necessary to reduce the
Outstanding Amount of such Class to zero.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Note" shall have the meaning specified in Section
2.2 of the Indenture.
"Related Agreements" shall have the meaning specified in the recitals to
the Administration Agreement.
"Representative" shall mean Bear, Xxxxxxx & Co. Inc., as representative
of the several Underwriters.
"Rule 144A Global Note" shall have the meaning specified in Section 2.2
of the Indenture.
24
"Sale and Servicing Agreement" shall mean the Sale and Servicing
Agreement, dated as of November 9, 2004, among the Trust, the Depositor, as
seller, and Bear Xxxxxxx Asset Receivables Corp., as servicer.
"Scheduled Payment" shall mean, for any Receivable, the scheduled
monthly payment amount indicated in such Receivable as required to be paid by
the Obligor in such Collection Period (without giving effect to deferments of
payments pursuant to Section 3.2 of the Sale and Servicing Agreement or any
rescheduling in any insolvency or similar proceedings).
"Schedule of Receivables" shall mean the list of Receivables attached as
Schedule A to the Sale and Servicing Agreement and the Indenture (which
Schedules may be in the form of microfiche, disk or other means acceptable to
the Trustee).
"Second Allocation of Principal" shall mean, with respect to any Payment
Date, an amount equal to (i) the excess, if any, of (x) the aggregate
Outstanding Amount of the Class A Notes and the Class B Notes (as of the day
immediately preceding such Payment Date) over (y) the Pool Balance for such
Payment Date minus (ii) any amount deposited into the Principal Distribution
Amount as part of the First Allocation of Principal for such Payment Date.
"Secretary of State" shall mean the Secretary of State of the State of
Delaware.
"Securities" shall mean the Notes and the Certificates, collectively.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Sellers" shall mean ALFT II, XXXX III and ALFT IV, each as a seller of
a portion of the Receivables under the applicable Receivables Purchase
Agreement and each successor to thereto.
"Servicer" shall mean Bear Xxxxxxx Asset Receivables Corp. as the
servicer of the Receivables under the Sale and Servicing Agreement, and each
successor to thereto (in the same capacity) pursuant to Section 7.1 of the
Sale and Servicing Agreement.
"Servicing Fee" shall mean, with respect to a Collection Period, the fee
payable to the Servicer for services rendered during such Collection Period
for administrative duties (for the avoidance of doubt, other than the
servicing duties which the Receivables Servicers are performing), which shall
be equal to one-twelfth of the Servicing Fee Rate multiplied by the aggregate
Principal Balance of the Receivables as of the first day of the Collection
Period.
"Servicing Fee Rate" shall mean 0.02%.
"Simple Interest Method" shall mean the method of allocating a fixed
level payment to principal and interest, pursuant to which the portion of such
payment that is allocated to interest is equal to the amount accrued from the
date of the preceding payment to the date of the current payment.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. or its successor in interest.
25
"State" shall mean any state or commonwealth of the United States of
America, or the District of Columbia.
"Statutory Trust Statute" shall mean Chapter 38 of Title 12 of the
Delaware Code, 12 Delaware Code ss. 3801 et seq., as amended.
"Successor Servicer" shall mean an institution appointed as successor
Servicer pursuant to Section 7.1 of the Sale and Servicing Agreement.
"Target Overcollateralization Level" shall mean, as of any Payment Date,
the amount equal to the greater of (x) 1.4% of the Pool Balance and (y)
$20,133,192.86.
"Temporary Regulation S Global Note" shall have the meaning specified in
Section 2.2 of the Indenture.
"Third Allocation of Principal" shall mean, with respect to any Payment
Date, an amount equal to (i) the excess, if any, of (x) the aggregate
Outstanding Amount of the Class A Notes, the Class B Notes and the Class C
Notes (as of the day immediately preceding such Payment Date) over (y) the
Pool Balance for such Payment Date minus (ii) any amount deposited into the
Principal Distribution Account as part of the First Allocation of Principal
and the Second Allocation of Principal for such Payment Date.
"Transfer Date" shall mean the Closing Date.
"Treasury Regulations" shall mean regulations, including proposed or
temporary regulations, promulgated under the Code. References to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" shall mean Whole Auto Loan Trust 2004-1, a Delaware statutory
trust governed by the Trust Agreement.
"Trust Accounts" shall mean the accounts created and maintained in
accordance with Section 4.1(b), (c) and (d) of the Sale and Servicing
Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement of
the Trust dated as of November 9, 2004 by and among the Depositor and the
Owner Trustee, as amended and/or restated from time to time.
"Trust Indenture Act" or "TIA" shall mean the Trust Indenture Act of
1939, as amended, unless otherwise specifically provided.
"Trust Property" shall mean, collectively, (i) the Receivables; (ii)
monies received thereunder on or after the Cut-off Date (other than the
portion of any Obligor payment related to the interest accrued on each
Receivable up to its last scheduled payment date prior to October 1, 2004);
(iii) 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; (iv) proceeds with respect to the Receivables from claims
on any theft, physical damage, credit life, credit
26
disability, or other insurance policies covering Financed Vehicles or
Obligors; (v) the Receivable Files; (vi) the Trust Accounts and all amounts,
securities, investments, investment property and other property deposited in
or credited to any of the foregoing, all security entitlements relating to the
foregoing and all proceeds thereof; (vii) payments and proceeds with respect
to the Receivables; (viii) the rights of the Depositor under the ALFT II
Receivables Purchase Agreement, the XXXX III Receivables Purchase Agreement
and the ALFT IV Receivables Purchase Agreement; (ix) all property (including
the right to receive Liquidation Proceeds) securing a Receivable (other than a
Receivable purchased by the Servicer or a Receivables Servicer or repurchased
by the Depositor); (x) rebates of premiums and other amounts relating to
insurance policies and other items financed under the Receivables in effect as
of the Cut-off Date; and (xi) 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.
"Trustee Officer" shall mean, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee with direct
responsibility for the administration of the Indenture and the other Basic
Documents on behalf of the Indenture Trustee and also, with respect to a
particular matter, any other officer to whom such matter is referred because
of such officer's knowledge of and familiarity with the particular subject
and, with respect to the Owner Trustee, any officer within the Corporate Trust
Office of the Owner Trustee with direct responsibility for the administration
of the Trust Agreement and the other Basic Documents on behalf of the Owner
Trustee.
"UCC" shall mean the Uniform Commercial Code as in effect in any
relevant jurisdiction.
"Underwriters" shall mean the underwriters named in Schedule I to the
Underwriting Agreement.
"Underwriting Agreement" shall mean the Underwriting Agreement, dated
October 28, 2004 between the Depositor and the Representative.
"Underwritten Securities" shall mean the Class A Notes, Class B Notes
and Class C Notes.
"U.S. Person" shall have the meaning ascribed to such term in Regulation
S.
"XXXX 2003-1" shall mean Whole Auto Loan Trust 2003-1, a Delaware
statutory trust.
"XXXX 2004-1" shall mean Whole Auto Loan Trust 2004-1, a Delaware
statutory trust.
27
