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INDENTURE
between
XXXXX FARGO AUTO TRUST 2001-A
as Issuer
and
THE CHASE MANHATTAN BANK
as Indenture Trustee
Dated as of May 16, 2001
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Table of Contents
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE................................................................. 2
SECTION 1.1 Definitions................................................................................... 2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act............................................. 2
SECTION 1.3 Other Interpretive Provisions................................................................. 2
ARTICLE II THE NOTES................................................................................................. 3
SECTION 2.1 Form.......................................................................................... 3
SECTION 2.2 Execution, Authentication and Delivery........................................................ 3
SECTION 2.3 Temporary Notes............................................................................... 4
SECTION 2.4 Registration of Transfer and Exchange......................................................... 4
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes.................................................... 6
SECTION 2.6 Persons Deemed Owner.......................................................................... 7
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest......................................... 7
SECTION 2.8 Cancellation.................................................................................. 8
SECTION 2.9 Release of Collateral......................................................................... 8
SECTION 2.10 Book-Entry Notes............................................................................. 8
SECTION 2.11 Notices to Clearing Agency................................................................... 9
SECTION 2.12 Definitive Notes............................................................................. 9
SECTION 2.13 Authenticating Agents........................................................................ 10
SECTION 2.14 Tax Treatment................................................................................ 10
SECTION 2.15 Paying Agents................................................................................ 10
ARTICLE III COVENANTS................................................................................................ 11
SECTION 3.1 Payment of Principal and Interest............................................................. 11
SECTION 3.2 Maintenance of Office or Agency............................................................... 11
SECTION 3.3 Money for Payments To Be Held in Trust........................................................ 11
SECTION 3.4 Existence..................................................................................... 13
SECTION 3.5 Protection of Trust Estate.................................................................... 13
SECTION 3.6 Opinions as to Trust Estate................................................................... 13
SECTION 3.7 Performance of Obligations; Servicing of Receivables.......................................... 14
SECTION 3.8 Negative Covenants............................................................................ 16
SECTION 3.9 Annual Statement as to Compliance............................................................. 16
SECTION 3.10 Issuer May Consolidate, Etc. Only on Certain Terms........................................... 17
SECTION 3.11 Successor or Transferee...................................................................... 18
SECTION 3.12 No Other Business............................................................................ 19
SECTION 3.13 No Borrowing................................................................................. 19
SECTION 3.14 Servicer's Obligations....................................................................... 19
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities............................................ 19
SECTION 3.16 Capital Expenditures......................................................................... 19
SECTION 3.17 Restricted Payments.......................................................................... 19
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SECTION 3.18 Notice of Events of Default.................................................................. 19
SECTION 3.19 Further Instruments and Acts................................................................. 20
SECTION 3.20 Removal of Administrator..................................................................... 20
ARTICLE IV SATISFACTION AND DISCHARGE................................................................................ 20
SECTION 4.1 Satisfaction and Discharge of Indenture....................................................... 20
SECTION 4.2 Application of Trust Money.................................................................... 21
SECTION 4.3 Repayment of Moneys Held by Paying Agent...................................................... 21
ARTICLE V REMEDIES................................................................................................... 21
SECTION 5.1 Events of Default............................................................................. 21
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment............................................ 22
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee..................... 23
SECTION 5.4 Remedies; Priorities.......................................................................... 25
SECTION 5.5 Optional Preservation of the Receivables...................................................... 28
SECTION 5.6 Limitation of Suits........................................................................... 28
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest......................... 29
SECTION 5.8 Restoration of Rights and Remedies............................................................ 29
SECTION 5.9 Rights and Remedies Cumulative................................................................ 29
SECTION 5.10 Delay or Omission Not a Waiver............................................................... 29
SECTION 5.11 Control by Controlling Note Class of Noteholders............................................. 29
SECTION 5.12 Waiver of Past Defaults...................................................................... 30
SECTION 5.13 Undertaking for Costs........................................................................ 30
SECTION 5.14 Waiver of Stay or Extension Laws............................................................. 31
SECTION 5.15 Action on Notes.............................................................................. 31
SECTION 5.16 Performance and Enforcement of Certain Obligations........................................... 31
ARTICLE VI INDENTURE TRUSTEE......................................................................................... 32
SECTION 6.1 Duties of Indenture Trustee................................................................... 32
SECTION 6.2 Rights of Indenture Trustee................................................................... 33
SECTION 6.3 Individual Rights of Indenture Trustee........................................................ 35
SECTION 6.4 Indenture Trustee's Disclaimer................................................................ 35
SECTION 6.5 Notice of Defaults............................................................................ 35
SECTION 6.6 Reports by Indenture Trustee to Holders....................................................... 35
SECTION 6.7 Compensation and Indemnity.................................................................... 35
SECTION 6.8 Replacement of Indenture Trustee.............................................................. 36
SECTION 6.9 Successor Indenture Trustee by Merger......................................................... 37
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee............................ 37
SECTION 6.11 Eligibility; Disqualification................................................................ 38
SECTION 6.12 Preferential Collection of Claims Against Issuer............................................. 39
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ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS........................................................................... 39
SECTION 7.1 Issuer to Furnish Indenture Trustee Names and Addresses of Noteholders........................ 39
SECTION 7.2 Preservation of Information; Communications to Noteholders.................................... 40
SECTION 7.3 Reports by Issuer............................................................................. 40
SECTION 7.4 Reports by Indenture Trustee.................................................................. 41
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES.................................................................... 41
SECTION 8.1 Collection of Money........................................................................... 41
SECTION 8.2 Trust Accounts................................................................................ 41
SECTION 8.3 General Provisions Regarding Accounts......................................................... 43
SECTION 8.4 Release of Trust Estate....................................................................... 44
SECTION 8.5 Opinion of Counsel............................................................................ 44
ARTICLE IX SUPPLEMENTAL INDENTURES................................................................................... 45
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders........................................ 45
SECTION 9.2 Supplemental Indentures with Consent of Noteholders........................................... 46
SECTION 9.3 Execution of Supplemental Indentures.......................................................... 48
SECTION 9.4 Effect of Supplemental Indenture.............................................................. 48
SECTION 9.5 Conformity With Trust Indenture Act........................................................... 48
SECTION 9.6 Reference in Notes to Supplemental Indentures................................................. 48
ARTICLE X REDEMPTION OF NOTES........................................................................................ 48
SECTION 10.1 Redemption................................................................................... 48
SECTION 10.2 Form of Redemption Notice.................................................................... 49
SECTION 10.3 Notes Payable on Redemption Date............................................................. 49
ARTICLE XI MISCELLANEOUS............................................................................................. 49
SECTION 11.1 Compliance Certificates and Opinions, etc.................................................... 49
SECTION 11.2 Form of Documents Delivered to Indenture Trustee............................................. 51
SECTION 11.3 Acts of Noteholders.......................................................................... 52
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies.............................. 52
SECTION 11.5 Notices to Noteholders; Waiver............................................................... 53
SECTION 11.6 Alternate Payment and Notice Provisions...................................................... 53
SECTION 11.7 Conflict with Trust Indenture Act............................................................ 54
SECTION 11.8 Effect of Headings and Table of Contents..................................................... 54
SECTION 11.9 Successors and Assigns....................................................................... 54
SECTION 11.10 Severability................................................................................ 54
SECTION 11.11 Benefits of Indenture....................................................................... 54
SECTION 11.12 Legal Holidays.............................................................................. 54
SECTION 11.13 GOVERNING LAW............................................................................... 54
SECTION 11.14 Counterparts................................................................................ 55
SECTION 11.15 Recording of Indenture...................................................................... 55
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SECTION 11.16 Trust Obligation............................................................................ 55
SECTION 11.17 No Petition................................................................................. 56
SECTION 11.18 Inspection.................................................................................. 56
SECTION 11.19 Confidential Information.................................................................... 56
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INDENTURE dated as of May 16, 2001, (as from time to time
amended, supplemented or otherwise modified and in effect, this "Indenture")
between Xxxxx Fargo Auto Trust 2001-A a New York common law trust ("Issuer"),
and The Chase Manhattan Bank, a New York banking corporation, solely as trustee
and not in its individual capacity ("Indenture Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of Issuer's 4.030%
Class A-1 Asset Backed Notes (the "Class A-1 Notes"), 4.250% Class A-2 Asset
Backed Notes (the "Class A-2 Notes"), 4.680% Class A-3 Asset Backed Notes (the
"Class A-3 Notes"), 5.070% Class A-4 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"), 4.910% Class B Asset Backed Notes (the "Class B
Notes") and 5.500% Class C Asset Backed Notes (the "Class C Notes" and, together
with the Class A Notes and Class B Notes, the "Notes"):
GRANTING CLAUSE
Issuer hereby Grants to Indenture Trustee at the Closing Date,
as Indenture Trustee for the benefit of the Holders of the Notes, all of
Issuer's right, title and interest in and to (a) the Receivables, and all moneys
received thereon on or after the Cutoff Date; (b) the security interests in the
Financed Vehicles granted by Obligors pursuant to the Receivables and any other
interest of Issuer in the Financed Vehicles and any other property that shall
secure the Receivables; (c) any proceeds with respect to the Receivables from
claims on any Insurance Policies covering Financed Vehicles or Obligors or from
claims under any lender's single interest insurance policy naming any Seller
Affiliate as an insured; (d) rebates of premiums and other amounts relating to
any Insurance Policies and rebates of other items, such as extended warranties
financed under the Receivables, in each case, to the extent Servicer would, in
accordance with its customary practices, apply such amounts to the Principal
Balance of the related Receivable; (e) any proceeds with respect to (i) any
Receivable repurchased by a Dealer, pursuant to a Dealer Agreement, as a result
of a breach of a representation or warranty in the related Dealer Agreement,
(ii) a default by an Obligor resulting in the repossession of the Financed
Vehicle, or (iii) any Dealer Recourse and other rights of Affiliates under
Dealer Agreements; (f) all the Seller's rights under the Purchase Agreements,
including the right of the Seller to cause an Affiliate to repurchase
Receivables from the Seller; (g) any instrument or document relating to the
Receivables; (h) the security interests in the Receivables and other assets
granted by each Seller Affiliate under the Affiliate Security Agreement and all
rights of the Issuer thereunder; (i) all funds on deposit from time to time in
the Trust Accounts and in all investments and proceeds thereof (including the
Reserve Account Property); (j) the Issuer's rights under the Sale and Servicing
Agreement; (k) all right, title and interest of Issuer under the Demand Note;
and (l) all present and future claims, demands, causes 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, 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
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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 set forth herein, and to secure compliance with the
provisions of this Indenture, all as provided in this Indenture. Indenture
Trustee, as Indenture Trustee on behalf of the Holders of the Notes,
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 Holders of the Notes may be adequately and effectively protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE.
SECTION 1.1 Definitions. Capitalized terms are used in this
Indenture as defined in Appendix X to the Sale and Servicing Agreement dated as
of May 16, 2001, among Xxxxx Fargo Auto Receivables Corporation, as Seller, the
Issuer and Xxxxx Fargo Bank, N.A, as Servicer.
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:
(a) "Commission" means the Securities and Exchange Commission.
(b) "indenture securities" means the Notes.
(c) "indenture security holder" means a Noteholder.
(d) "indenture to be qualified" means this Indenture.
(e) "indenture trustee" or "institutional trustee" means
Indenture Trustee
(f) obligor" on the indenture securities means Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
SECTION 1.3 Other Interpretive Provisions. All terms defined
in this Indenture shall have the defined meanings when used in any certificate
or other document delivered pursuant hereto unless otherwise defined therein.
For purposes of this Indenture and all such certificates and other documents,
unless the context otherwise requires: (a) accounting terms not otherwise
defined in this Indenture, and accounting terms partly defined in this Indenture
to the extent not defined, shall have the respective meanings given to them
under generally accepted
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accounting principles; (b) the words "hereof," "herein" and "hereunder" and
words of similar import refer to this Indenture as a whole and not to any
particular provision of this Indenture; (c) references to any Article, Section,
Schedule or Exhibit are references to Articles, Sections, Schedules and Exhibits
in or to this Indenture and references to any paragraph, subsection, clause or
other subdivision within any Section or definition refer to such paragraph,
subsection, clause or other subdivision of such Section or definition; (d) the
term "including" means "including without limitation"; (e) except as otherwise
expressly provided herein, references to any law or regulation refer to that law
or regulation as amended from time to time and include any successor law or
regulation; (f) references to any Person include that Person's successors and
assigns; and (g) headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.
ARTICLE II
THE NOTES.
SECTION 2.1 Form.
(a) The Class A-1 Notes, Class A-2 Notes, Class A-3 Notes,
Class A-4 Notes, Class B Notes and Class C Notes, in each case together with
Indenture Trustee's certificate of authentication, shall be in substantially the
forms set forth in Exhibits X-0, X-0, X-0, X-0, B and C, respectively, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may, consistently herewith, be determined by the officers executing such Notes,
as evidenced by their execution of the Notes. 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 Exhibits X-0, X-0, X-0, X-0, B and C are
part of the terms of this Indenture.
SECTION 2.2 Execution, Authentication and Delivery. The Notes
shall be executed on behalf of Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
(a) Notes bearing the manual or facsimile signature of
individuals who were at any time Authorized Officers of Issuer shall bind
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.
(b) Indenture Trustee shall upon Issuer Order authenticate and
deliver Class A-1 Notes for original issue in an aggregate principal amount of
$191,000,000, Class A-2 Notes for original issue in the aggregate principal
amount of $239,000,000, Class A-3 Notes for original issue in the aggregate
principal amount of $208,000,000, Class A-4 Notes for original issue in
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the aggregate principal amount of $67,530,000, Class B Notes for original issue
in the aggregate principal amount of $18,664,000 and Class C Notes for original
issue in the aggregate principal amount of $11,200,000. The aggregate principal
amount of Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, class A-4 Notes,
Class B Notes and Class C Notes outstanding at any time may not exceed such
amounts except as provided in Section 2.5.
(c) Each Note shall be dated the date of its authentication.
The Notes shall be issuable as registered Notes in the minimum denomination of
$1,000 and in integral multiples thereof (except for one Note of each class
which may be issued in a denomination other than an integral multiple of
$1,000).
(d) 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 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, Issuer may
execute, and upon receipt of an Issuer Order, Indenture Trustee shall
authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, 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 such Notes may
determine, as evidenced by their execution of such Notes.
(b) If temporary Notes are issued, Issuer will 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 Issuer to be maintained as provided in Section 3.2, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes,
Issuer shall execute and Indenture Trustee shall authenticate and deliver in
exchange therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Definitive Notes.
SECTION 2.4 Registration of Transfer and Exchange.
(a) Issuer shall cause to be kept a register (the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
Issuer shall provide for the registration of Notes and the registration of
transfers of Notes. Indenture Trustee shall initially be "Note Registrar" for
the purpose of registering Notes and transfers of Notes as herein provided. Upon
any resignation of any Note Registrar, Issuer shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar.
(b) If a Person other than Indenture Trustee is appointed by
Issuer as Note Registrar, Issuer will give Indenture Trustee prompt written
notice of the appointment of such
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Note Registrar and of the location, and any change in the location, of the Note
Register, and Indenture Trustee shall have the right to inspect the Note
Register at all reasonable times and to obtain copies thereof, and Indenture
Trustee shall have the right to conclusively rely upon a certificate executed on
behalf of Note Registrar by an Executive Officer thereof as to the names and
addresses of the Holders of the Notes and the principal amounts and number of
such Notes.
(c) Upon surrender for registration of transfer of any Note at
the office or agency of Issuer to be maintained as provided in Section 3.2, if
the requirements of Section 8-401(1) of the UCC are met, Issuer shall execute
and upon its written request Indenture Trustee shall authenticate and the
Noteholder shall obtain from Indenture Trustee, in the name of the designated
transferee or transferees, one or more new Notes, in any authorized
denominations, of the same class and a like aggregate principal amount.
(d) At the option of the Holder, Notes may be exchanged for
other Notes in any authorized denominations, of the same class and a like
aggregate principal amount, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any Notes are so surrendered for exchange, if the
requirements of Section 8-401(1) of the UCC are met Issuer shall execute and
upon its written request Indenture Trustee shall authenticate and the Noteholder
shall obtain from Indenture Trustee, the Notes which the Noteholder making the
exchange is entitled to receive.
(e) All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of
transfer or exchange shall be (i) duly endorsed by, or be accompanied by a
written instrument of transfer in form satisfactory to Note Registrar duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of Note Registrar which requirements include membership
or participation in a Securities Transfer Agents Medallion Program ("Stamp") or
such other "signature guarantee program" as may be determined by Note Registrar
in addition to, or in substitution for, Stamp, all in accordance with the
Exchange Act, and (ii) accompanied by such other documents as Indenture Trustee
may require.
(g) No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but Issuer may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
(h) The preceding provisions of this section notwithstanding,
Issuer shall not be required to make and Note Registrar need not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to the
Note.
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(i) No Note, or any interest therein, may be transferred to an
"employee benefit plan" within the meaning of Section 3(3) of ERISA that is
subject to ERISA, a "plan" described in Section 4975(e)(1) of the Code, any
entity that is deemed to hold "plan assets" of any of the foregoing by reason of
an employee benefit plan's or other plan's investment in such entity, or any
governmental plan subject to applicable law that is substantially similar to the
fiduciary responsibility provisions of ERISA or Section 4975 of the Code, unless
such transferee represents, warrants and covenants that its purchase and holding
of such Note is and will be eligible for, and satisfies and will satisfy all the
requirements of, Department of Labor prohibited transaction class exemption
("PTE") 90-1; PTE 96-23; PTE 95-60: PTE 91-38; PTE 84-14 or another applicable
prohibited transaction exemption (or in the case of a governmental plan, will
not violate any applicable law that is substantially similar to ERISA or Section
4975 of the Code). By its acquisition of a Note or any interest therein, each
transferee will be deemed to have represented, warranted and covenanted that it
satisfies the foregoing requirements and the Indenture Trustee may rely
conclusively on the same for purposes hereof.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If (i) any mutilated Note is surrendered to Indenture
Trustee, or Indenture Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to Indenture
Trustee such security or indemnity as may be required by it to hold Issuer and
Indenture Trustee harmless, then, in the absence of notice to Issuer, Note
Registrar or Indenture Trustee that such Note has been acquired by a bona fide
purchaser, and provided that the requirements of Section 8-405 of the UCC are
met, Issuer shall execute and upon its written request Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note; provided that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within seven days shall be due and payable, or shall have been called for
redemption, instead of issuing a replacement Note, Issuer may upon delivery of
the security or indemnity herein required pay such destroyed, lost or stolen
Note when so due or payable or upon the Redemption Date without surrender
thereof. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, Issuer and
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 bona fide purchaser, and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by Issuer or Indenture Trustee in
connection therewith.
(b) Upon the issuance of any replacement Note under this
Section, Issuer may require the payment by the Holder 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 Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any
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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 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 2.6 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, Issuer, Indenture Trustee and any agent of
Issuer or 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
neither Issuer, Indenture Trustee nor any agent of Issuer or Indenture Trustee
shall be affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest; Defaulted
Interest.
(a) The Notes shall accrue interest as provided in the forms
of the Class A-1 Note, Class A-2 Note, Class A-3 Notes, Class A-4 Notes, Class B
Notes, Class C Notes, set forth in Exhibits X-0, X-0, X-0, X-0, B and C,
respectively, and such interest shall be 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 which is punctually paid or duly provided
for by 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, by check mailed first-class, postage prepaid, to such Person's
address as it appears on the Note Register on such Record Date, except that,
unless Definitive Notes have been issued pursuant to Section 2.12, 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 will be made
by wire transfer in immediately available funds to the account designated by
such nominee and except for the final installment of principal payable with
respect to such Note on a Payment Date or on the Final Scheduled Payment Date
for such Class (and except for the Redemption Price for any Note called for
redemption pursuant to Section 10.1(a)) 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 on each
Payment Date as provided in the forms of the Class A-1 Note, Class A-2 Note,
Class A-3 Note, Class A-4 Note, Class B Note and Class C Note, set forth in
Exhibits X-0, X-0, X-0, X-0, B and C, respectively. Notwithstanding the
foregoing, the entire unpaid principal amount of the 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 Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2 and, in such event, all
principal payments on each class of Notes shall be made pro rata to the
Noteholders of such class entitled thereto. 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 Issuer expects that the final
installment of principal of and interest on such Note will be paid. Such notice
shall be mailed or transmitted by facsimile prior to such final Payment Date and
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shall specify that such final installment will 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 redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2.
(c) If Issuer defaults in a payment of interest on the Notes,
Issuer shall pay such 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 Holders of Notes on the Record Date for such following Payment
Date.
SECTION 2.8 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than Indenture Trustee, be delivered to Indenture Trustee and shall
be promptly cancelled by Indenture Trustee. Issuer may at any time deliver to
Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder which Issuer may have acquired in any manner whatsoever, and
all Notes so delivered shall be promptly cancelled by Indenture Trustee. No
Notes shall be authenticated in lieu of or in exchange for any Notes cancelled
as provided in this Section, except as expressly permitted by this Indenture.
All cancelled Notes may be held or disposed of by Indenture Trustee in
accordance with its standard retention or disposal policy as in effect at the
time unless Issuer shall direct by an Issuer Order that they be destroyed or
returned to it; provided that such Issuer Order is timely and the Notes have not
been previously disposed of by Indenture Trustee.
SECTION 2.9 Release of Collateral. Subject to Section 11.1,
Indenture Trustee shall release property from the lien of this Indenture only in
accordance with the Basic Documents and upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates. If the Commission shall
issue an exemptive order under TIA Section 304(d) modifying Owner Trustee's
obligations under TIA Sections 314(c) and 314(d)(1), subject to Section 11.1 and
the terms of the Basic Documents, 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 2.10 Book-Entry Notes. The Notes, upon original
issuance, will be issued in the form of typewritten Notes representing the
Book-Entry Notes, to be delivered to Indenture Trustee, as agent for The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of,
Issuer. Such Notes shall initially be registered on the Note Register in the
name of Cede & Co., the nominee of the initial Clearing Agency, and no Note
Owner will receive a Definitive Note representing such Note Owner's interest in
such Note, except as provided in Section 2.12. Unless and until definitive,
fully registered Notes (the "Definitive Notes") have been issued to Note Owners
pursuant to Section 2.12:
(a) the provisions of this Section shall be in full force and
effect;
(b) Note Registrar and Indenture Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture (including the
payment of principal of and
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interest on the Notes and the giving of instructions or directions hereunder) as
the sole Holder of the Notes, and shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section conflict
with any other provisions of this Indenture, the provisions of this Section
shall control;
(d) 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 or Persons acting through Clearing Agency Participants.
Pursuant to the Note Depository Agreement, unless and until Definitive Notes are
issued pursuant to Section 2.12, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to such Clearing
Agency Participants; and
(e) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Notes evidencing a
specified percentage of the Outstanding Amount of the Notes (or any class
thereof, including the Controlling Note Class), the Clearing Agency shall be
deemed to represent such percentage only to the extent that it has received
instructions to such effect from Note Owners and/or Clearing Agency Participants
or Persons acting through Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the Notes
(or any class thereof, including the Controlling Note Class) and has delivered
such instructions to Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or
other communication to the Noteholders is required under this Indenture, unless
and until Definitive Notes shall have been issued to Note Owners pursuant to
Section 2.12, Indenture Trustee shall give all such notices and communications
specified herein to be given to Holders of the Notes to the Clearing Agency, and
shall have no obligation to the Note Owners.
SECTION 2.12 Definitive Notes. If (a) Seller advises Indenture
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Notes, and Seller is
unable to locate a qualified successor, (b) Seller at its option advises
Indenture Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency or (c) after the occurrence of an Event of Default,
Note Owners representing beneficial interests aggregating at least a majority of
the Outstanding Amount of the Notes advise Indenture Trustee through 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 the Note Owners, then
the Clearing Agency shall notify all Note Owners and Indenture Trustee of the
occurrence of any such event and of the availability of Definitive Notes to Note
Owners requesting the same. Upon surrender to Indenture Trustee of the
typewritten Note or Notes representing the Book-Entry Notes by the Clearing
Agency, accompanied by registration instructions, Issuer shall execute and
Indenture Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency. None of Issuer, Note Registrar or Indenture
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Notes, Indenture Trustee shall recognize the
Holders of the Definitive Notes as Noteholders.
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SECTION 2.13 Authenticating Agents.
(a) The Indenture Trustee may appoint one or more Persons
(each, an "Authenticating Agent") with power to act on its behalf and subject to
its direction in the authentication of Notes in connection with issuance,
transfers and exchanges under Sections 2.2, 2.3, 2.4, 2.5 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 shall be deemed to be the authentication of Notes
"by the Indenture Trustee." The Indenture Trustee shall be the Authenticating
Agent in the absence of any appointment thereof.
(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 Indenture Trustee and Owner Trustee. Indenture
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and Owner
Trustee. Upon receiving such notice of resignation or upon such a termination,
Indenture Trustee may appoint a successor Authenticating Agent and shall give
written notice of any such appointment to Owner Trustee.
(d) The Administrator agrees to pay to each Authenticating
Agent (other than the Indenture Trustee) from time to time reasonable
compensation for its services as agreed upon between the Authenticating Agent
and the Administrative Agent. The provisions of Sections 2.8 and 6.4 shall be
applicable to any Authenticating Agent.
SECTION 2.14 Tax Treatment. Issuer has entered into this
Indenture, and the Notes shall be issued, with the intention that, for United
States federal, state and local income, excise, privilege and franchise tax
purposes, the Notes shall qualify as indebtedness secured by the Trust Estate.
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.
SECTION 2.15 Paying Agents.
(a) The Indenture Trustee may appoint one or more Paying
Agents with the power to make payments to and distribution from the Trust
Accounts and the Reserve Account.
(b) Any corporation into which any Paying 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 Paying Agent shall be
a party, or any corporation succeeding to all or substantially all of the
corporate trust business of any Paying Agent shall be the successor of
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such Paying Agent hereunder, without the execution or filing of any further act
on the part of the parties hereto or such Paying Agent or such successor
corporation.
(c) Any Paying Agent may at any time resign by giving written
notice of resignation to Indenture Trustee and Administrator. Indenture Trustee
may at any time terminate the agency of any Paying Agent by giving written
notice of termination to such Paying Agent. Upon receiving such notice of
resignation or upon such a termination, Indenture Trustee may appoint a
successor Paying Agent and shall give written notice of any such appointment to
Administrator.
(d) The Indenture Trustee agrees to pay to each Paying Agent
from time to time reasonable compensation for its services as agreed upon
between the Paying Agent and the Indenture Trustee. The provisions of Section
6.4 shall be applicable to any Paying Agent.
ARTICLE III
COVENANTS.
SECTION 3.1 Payment of Principal and Interest. Issuer will
duly and punctually pay the principal of and interest on the Notes in accordance
with the terms of the Notes and this Indenture. Without limiting the foregoing,
subject to Section 8.2(c), Issuer will cause to be distributed all amounts on
deposit in the Note Distribution Account on a Payment Date 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 Issuer to such Noteholder
for all purposes of this Indenture.
SECTION 3.2 Maintenance of Office or Agency. Issuer will
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 Issuer in respect of the Notes and this
Indenture may be served. Issuer hereby initially appoints Indenture Trustee to
serve as its agent for the foregoing purposes. Issuer will give prompt written
notice to Indenture Trustee of the location, and of any change in the location,
of any such office or agency. If at any time Issuer shall fail to maintain any
such office or agency or shall fail to furnish Indenture Trustee with the
address thereof, such surrenders, notices and demands may be made or served at
the Corporate Trust Office, and Issuer hereby appoints 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 Section 8.2, all payments of amounts due
and payable with respect to any Notes that are to be made from amounts withdrawn
from the Collection Account and the Note Distribution Account pursuant to
Section 8.2(c) shall be made on behalf of Issuer by Indenture Trustee or by
another Paying Agent, and no amounts so withdrawn from the Collection Account
and the Note Distribution Account for payments of Notes shall be paid over to
Issuer except as provided in this Section.
(b) On or before each Payment Date and Redemption Date, Issuer
shall deposit or cause to be deposited in the Note Distribution Account an
aggregate sum sufficient to pay the
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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 Paying Agent is
Indenture Trustee) shall promptly notify Indenture Trustee of its action or
failure so to act.
(c) Issuer will cause each Paying Agent other than Indenture
Trustee to execute and deliver to Indenture Trustee an instrument in which such
Paying Agent shall agree with Indenture Trustee (and if Indenture Trustee acts
as Paying Agent, it hereby so agrees), subject to the provisions of this
Section, that such Paying Agent will:
(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 in the Basic Documents;
(ii) give Indenture Trustee notice of any default by 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 Indenture Trustee, forthwith pay to
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
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
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) 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 Paying Agent to pay to Indenture Trustee all sums held in trust
by such Paying Agent, such sums to be held by Indenture Trustee upon the same
trusts as those upon which the sums were held by such Paying Agent; and upon
such a payment by any Paying Agent to Indenture Trustee, such Paying Agent shall
be released from all further liability with respect to such money.
(e) Subject to applicable laws with respect to the escheat of
funds, any money held by Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
two years after such amount has become due and payable shall be discharged from
such trust and be paid to Issuer on Issuer Request; and the Holder of such Note
shall thereafter, as an unsecured general creditor, look only to Issuer for
payment thereof (but only to the extent of the amounts so paid to Issuer), and
all liability of Indenture Trustee or such Paying Agent with respect to such
trust money shall thereupon cease; provided that Indenture Trustee or such
Paying Agent, before being required to make any such repayment, shall at the
expense of Issuer cause to be published once, in a newspaper published in
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the English language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to Issuer. Indenture Trustee shall also adopt and
employ, at the expense of Issuer, any other reasonable means of notification of
such repayment (including, but not limited to, mailing notice of such repayment
to Holders whose Notes have been called but have not been surrendered for
redemption or whose right to or interest in moneys due and payable but not
claimed is determinable from the records of Indenture Trustee or of any Paying
Agent, at the last address of record for each such Holder).
SECTION 3.4 Existence. Except as otherwise permitted by the
provisions of Section 3.10, Issuer will keep in full effect its existence,
rights and franchises as a common law trust under the laws of the State of New
York (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 Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification 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 Trust Estate.
SECTION 3.5 Protection of Trust Estate. Issuer will from time
to time prepare (or shall cause to be prepared), execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action necessary or advisable to:
(a) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(b) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(c) enforce any of the Collateral; or
(d) preserve and defend title to the Trust Estate and the
rights of Indenture Trustee and the Noteholders in such Trust Estate against the
claims of all persons and parties.
Issuer hereby designates Indenture Trustee its agent and attorney-in-fact to
execute any financing statement, continuation statement or other instrument
required by Issuer pursuant to this Section.
SECTION 3.6 Opinions as to Trust Estate.
(a) On the Closing Date, Issuer shall furnish to 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
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opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
(b) Within 120 days after the beginning of each calendar year,
beginning with the first calendar year beginning more than three months after
the Cutoff Date, Issuer shall furnish to 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 as are 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 will, 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) Issuer will not take any action and will 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 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
ordered by any bankruptcy or other court or as expressly provided in this
Indenture, the Basic Documents or such other instrument or agreement.
(b) 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 Indenture Trustee in an Officer's Certificate of
Issuer shall be deemed to be action taken by Issuer. Initially, Issuer has
contracted with Servicer and the Administrator to assist Issuer in performing
its duties under this Indenture.
(c) Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Trust Estate, including but
not limited to preparing (or causing to prepared) and filing (or causing to be
filed) all UCC financing statements and continuation statements required to be
filed 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, Issuer shall not waive, amend,
modify, supplement or terminate any Basic Document or any provision thereof
without the consent of Indenture Trustee or the Holders of at least a majority
of the Outstanding Amount of the Notes.
(d) If Issuer shall have knowledge of the occurrence of a
Servicer Termination Event under the Sale and Servicing Agreement, Issuer shall
promptly notify Indenture Trustee and the Rating Agencies thereof in accordance
with Section 11.4, and shall specify in such notice the action, if any, Issuer
is taking in respect of such default. If a Servicer Termination Event shall
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arise from the failure of Servicer to perform any of its duties or obligations
under the Sale and Servicing Agreement with respect to the Receivables, 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 Servicer of Servicer's rights and powers pursuant to Section 8.1
of the Sale and Servicing Agreement or the Servicer's resignation in accordance
with the terms of the Sale and Servicing Agreement, the Issuer shall appoint a
successor servicer (the "Successor Servicer"), and such Successor Servicer shall
accept its appointment by a written assumption in a form acceptable to Indenture
Trustee. In the event that a Successor Servicer has not been appointed and
accepted its appointment at the time when Servicer ceases to act as Servicer,
Indenture Trustee without further action shall automatically be appointed the
Successor Servicer. Indenture Trustee may resign as Servicer by giving written
notice of such resignation to Issuer and in such event will 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 Issuer as provided below.
Upon delivery of any such notice to Issuer, Issuer shall obtain a new servicer
as the Successor Servicer under the Sale and Servicing Agreement. Any Successor
Servicer other than Indenture Trustee shall (i) be an established financial
institution having a net worth of not less than $50,000,000 and whose regular
business includes the servicing of motor vehicle loans and (ii) enter into a
servicing agreement with Issuer having substantially the same provisions as the
provisions of the Sale and Servicing Agreement applicable to Servicer. If within
30 days after the delivery of the notice referred to above, Issuer shall not
have obtained such a new servicer, Indenture Trustee may appoint, or may
petition a court of competent jurisdiction to appoint, a Successor Servicer. In
connection with any such appointment, Indenture Trustee may make such
arrangements for the compensation of such successor as it and such successor
shall agree, subject to the limitations set forth below and in the Sale and
Servicing Agreement, and in accordance with Section 8.2 of the Sale and
Servicing Agreement, 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 Indenture Trustee). If Indenture Trustee shall succeed to
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 shall be inapplicable to Indenture
Trustee in its duties as the successor to Servicer and the servicing of the
Receivables. In the case that Indenture Trustee becomes successor to Servicer
under the Sale and Servicing Agreement, Indenture Trustee shall be entitled to
appoint as Servicer any one of its Affiliates, or delegate any of its
responsibilities as Servicer to agents, subject to the terms of the Sale and
Servicing Agreement, provided that such appointment or delegation shall not
affect or alter in any way the liability of Indenture Trustee as a successor for
the performance of the duties and obligations of Servicer in accordance with the
terms hereof. Notwithstanding anything else herein 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
this Agreement and the transactions set forth or provided for herein.
(f) Upon any termination of Servicer's rights and powers
pursuant to the Sale and Servicing Agreement, Issuer shall promptly notify
Indenture Trustee. As soon as a Successor Servicer (other than Indenture
Trustee) is appointed, Issuer shall notify Indenture Trustee of such
appointment, specifying in such notice the name and address of such Successor
Servicer.
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(g) Without derogating from the absolute nature of the
assignment granted to Indenture Trustee under this Indenture or the rights of
Indenture Trustee hereunder, Issuer agrees that, unless such action is
specifically permitted hereunder or under the Basic Documents, it will not,
without the prior written consent of the Holders of at least a majority in
Outstanding Amount of the Notes, amend, modify, waive, supplement, terminate or
surrender, or agree to any amendment, modification, supplement, termination,
waiver or surrender of, the terms of any Collateral or the Basic Documents, or
waive timely performance or observance by Servicer or Seller under the Sale and
Servicing Agreement; provided that no such amendment shall (i) except for
amendments and modifications of the Receivables permitted under the Sale and
Servicing Agreement, increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required to be made
for the benefit of the Noteholders, or (ii) reduce the aforesaid percentage of
the Notes which are required to consent to any such amendment, without the
consent of the Holders of all the Outstanding Notes. If any such amendment,
modification, supplement or waiver shall be so consented to by Indenture Trustee
or such Holders, Issuer agrees, promptly following a request by Indenture
Trustee to do so, to execute and deliver, in its own name and at its own
expense, such agreements, instruments, consents and other documents as Indenture
Trustee may deem necessary or appropriate in the circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are
Outstanding, Issuer shall not:
(a) except as expressly permitted by this Indenture or the
Basic Documents, sell, transfer, exchange or otherwise dispose of any of the
properties or assets of Issuer, including those included in the Trust Estate,
unless directed to do so by Indenture Trustee;
(b) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than amounts
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 any part of the Trust Estate;
(c) dissolve or liquidate in whole or in part; or
(d) (i) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (ii) 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 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 a Financed Vehicle
and arising solely as a result of an action or omission of the related Obligor)
or (iii) 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 Trust Estate.
SECTION 3.9 Annual Statement as to Compliance. Issuer will
deliver to Indenture Trustee, within 120 days after the end of each fiscal year
of Issuer (commencing 120
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days after the fiscal year ended December 31, 2001, and otherwise in compliance
with the requirements of TIA Section 314(a)(4) an Officer's Certificate stating,
as to the Authorized Officer signing such Officer's Certificate, that:
(a) a review of the activities of Issuer during such year and
of performance under this Indenture has been made under such Authorized
Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based
on such review, Issuer has complied with all conditions and covenants under this
Indenture throughout such year, or, if there has been a default in the
compliance of 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) Issuer shall not consolidate or merge with or into any
other Person, unless
(i) the Person (if other than 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 Indenture Trustee, in form satisfactory to 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 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) Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to Indenture Trustee) to the effect
that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) Issuer shall have delivered to Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act).
(b) Except as expressly contemplated by the Basic Documents,
Issuer shall not convey or transfer all or substantially all of its properties
or assets, including those included in the Trust Estate, to any Person, unless
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(i) the Person that acquires by conveyance or transfer the
properties and assets of 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 assume, by an indenture supplemental
hereto, executed and delivered to Indenture Trustee, in form
satisfactory to 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 Issuer to be performed or observed, all as provided herein, (C)
expressly agree 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 Holders of the Notes, (D) unless otherwise
provided in such supplemental indenture, expressly agree to indemnify,
defend and hold harmless Issuer against and from any loss, liability or
expense arising under or related to this Indenture and the Notes and
(E) expressly agree by means of such supplemental indenture that such
Person (or if a group of persons, then one specified Person) shall
prepare (or cause to be prepared) and make all filings with the
Commission (and any other appropriate Person) required by the Exchange
Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to Indenture Trustee) to the effect
that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) Issuer shall have delivered to Indenture Trustee an
Officers' 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 Issuer in accordance
with Section 3.10(a), the Person formed by or surviving such consolidation or
merger (if other than Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, Issuer under this Indenture with the same
effect as if such Person had been named as Issuer herein.
(b) Upon a conveyance or transfer of all the assets and
properties of Issuer pursuant to Section 3.10(b), the Issuer will be released
from every covenant and agreement of this Indenture to be observed or performed
on the part of Issuer with respect to the Notes
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immediately upon the delivery of written notice to Indenture Trustee stating
that the Issuer is to be so released.
SECTION 3.12 No Other Business. Issuer shall not engage in any
business other than financing, purchasing, owning, selling, managing and
pledging the Receivables in the manner contemplated by this Indenture and the
Basic Documents and activities incidental thereto.
SECTION 3.13 No Borrowing. Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14 Servicer's Obligations. Issuer shall cause
Servicer to comply with the Sale and Servicing Agreement, including Sections
4.9, 4.10 and 4.11 thereof.
SECTION 3.15 Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by the Sale and Servicing Agreement or this
Indenture, 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. Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
SECTION 3.17 Restricted Payments. Issuer shall not, directly
or indirectly, (a) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to Owner Trustee or any owner of a beneficial interest in Issuer or
otherwise with respect to any ownership or equity interest or security in or of
Issuer or to Servicer or Administrator, (b) redeem, purchase, retire or
otherwise acquire for value any such ownership or equity interest or security or
(c) set aside or otherwise segregate any amounts for any such purpose; provided
that Issuer may make, or cause to be made, (i) distributions to Servicer,
Administrator, Owner Trustee, Indenture Trustee and the Certificateholders as
permitted by, and to the extent funds are available for such purpose under, the
Sale and Servicing Agreement or Trust Agreement and (ii) distributions by the
Administrator on behalf of the Issuer to be made to the Indenture Trustee or
Owner Trustee pursuant to Section 2(f) of the Administration Agreement. Issuer
will not, directly or indirectly, make payments to or distributions from the
Collection Accounts except in accordance with this Indenture and the Basic
Documents.
SECTION 3.18 Notice of Events of Default. Issuer agrees to
give Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder and each Event of Servicing Termination or default on
the part of Seller of its obligations under the Sale and Servicing Agreement.
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SECTION 3.19 Further Instruments and Acts. Upon request of
Indenture Trustee, Issuer will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.20 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 (a) rights of registration of transfer and exchange, (b) substitution of
mutilated, destroyed, lost or stolen Notes, (c) rights of Noteholders to receive
payments of principal thereof and interest thereon, (d) Sections 3.3, 3.4, 3.5,
3.7(a), 3.8, 3.10, 3.12, 3.13, 3.15, 3.18 and 3.20, (e) the rights, obligations
and immunities of Indenture Trustee hereunder (including the rights of Indenture
Trustee under Section 6.7 and the obligations of Indenture Trustee under Section
4.2) and (f) the rights of Noteholders as beneficiaries hereof with respect to
the property so deposited with Indenture Trustee payable to all or any of them,
and Indenture Trustee, on demand of and at the expense of Issuer, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Notes, when
(i) either
(A) all Notes theretofore authenticated and delivered
(other than (1) Notes that have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section 2.5
and (2) Notes for which payment money has theretofore been
deposited in trust or segregated and held in trust by Issuer
and thereafter repaid to Issuer or discharged from such trust,
as provided in Section 3.3) have been delivered to Indenture
Trustee for cancellation; or
(B) all Notes not theretofore delivered to Indenture
Trustee for cancellation
(1) have become due and payable,
(2) will become due and payable at the Final
Scheduled Payment Date within one year, or
(3) are to be called for redemption within
one year under arrangements satisfactory to Indenture
Trustee for the giving of notice of redemption by
Indenture Trustee in the name, and at the expense, of
Issuer, and Issuer, in the case of clauses (1), (2)
or (3), has irrevocably deposited or caused to be
irrevocably deposited with 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
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payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered
to Indenture Trustee for cancellation when due to the
Final Scheduled Payment Date or Redemption Date (if
Notes shall have been called for redemption pursuant
to Section 10.1(a)), as the case may be;
(ii) Issuer has paid or caused to be paid all other sums
payable hereunder by Issuer; and
(iii) Issuer has delivered to Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or
Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of Section
11.1(a) and each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have
been complied with.
SECTION 4.2 Application of Trust Money. All moneys deposited
with 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 Paying Agent, as
Indenture Trustee may determine, to the Holders of the particular Notes for the
payment or redemption of which such moneys have been deposited with Indenture
Trustee, of all sums due and to become due thereon for principal and interest;
but such moneys 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 Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
the Notes, all moneys then held by any Paying Agent other than Indenture Trustee
under the provisions of this Indenture with respect to such Notes shall, upon
demand of Issuer, be paid to Indenture Trustee to be held and applied according
to Section 3.3 and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
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):
(a) default in the payment of any interest on any Note of the
Controlling Note Class when the same becomes due and payable, and such default
shall continue for a period of five days;
(b) default in the payment of the principal of or any
installment of the principal of any Note when the same becomes due and payable;
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(c) default in the observance or performance of any material
covenant or agreement of 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 5.11 specifically dealt with), or any representation or warranty of
Issuer made in this Indenture or in any certificate or other writing delivered
pursuant hereto or in connection herewith proving to have been incorrect in any
material respect as of the time when the same shall have been made, which
default materially and adversely affects the Noteholders or the Indenture
Trustee 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 30 days (or
for such longer period, not in excess of 90 days, as may be reasonably necessary
to remedy such default; provided that such default is capable of remedy within
90 days or less and Servicer on behalf of Owner Trustee delivers an Officer's
Certificate to Indenture Trustee to the effect that Issuer has commenced, or
will promptly commence and diligently pursue, all reasonable efforts to remedy
such default) after the earlier of discovery or the time that there shall have
been given, by registered or certified mail, to Issuer by Indenture Trustee or
to Issuer and Indenture Trustee by the Holders of at least 25% of the
Outstanding Amount of the Notes of the Controlling Note Class, a written notice
specifying such default or incorrect representation or warranty and requiring it
to be remedied and stating that such notice is a "Notice of Default" hereunder;
(d) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of Issuer or any substantial part
of the 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 Issuer or for any substantial part of the Trust Estate, or
ordering the winding-up or liquidation of Issuer's affairs, and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive days;
or
(e) the commencement by 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 Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by Issuer to
the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of Issuer or for any
substantial part of the Trust Estate, or the making by Issuer of any general
assignment for the benefit of creditors, or the failure by Issuer generally to
pay its debts as such debts become due, or the taking of action by Issuer in
furtherance of any of the foregoing. Issuer shall deliver to Indenture Trustee,
within five 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 (c), its status and what
action 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 Indenture Trustee or the Holders of Notes
representing not less than a majority of the Outstanding Amount of the Notes of
the Controlling Note Class may declare all the Notes to be immediately due and
payable, by a notice in writing to Issuer (and to Indenture Trustee if given by
Noteholders), and upon any such declaration the unpaid principal amount of such
Notes,
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together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable.
(b) At any time after such declaration of acceleration of
maturity has been made and before a judgment or decree for payment of the money
due has been obtained by Indenture Trustee as hereinafter in this Article V
provided, the Holders of Notes representing a majority of the Outstanding Amount
of the Notes of the Controlling Note Class, by written notice to Issuer and
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) Issuer has paid or deposited with 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 Indenture Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of Indenture Trustee and its agents
and counsel; and
(C) all Events of Default, other than the nonpayment
of the principal of the Notes that has become due solely by
such acceleration, have been cured or waived as provided in
Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee.
(a) Issuer covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of five days, or (ii) default is made in the
payment of the principal of or any installment of the principal of any Note when
the same becomes due and payable, Issuer will, upon demand of Indenture Trustee,
pay to it, for the benefit of the Holders of the Notes, 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 rate
specified in Section 2.7 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 Indenture
Trustee and its agents and counsel.
(b) In case Issuer shall fail forthwith to pay such amounts
upon such demand, 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 Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of Issuer or other obligor
upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
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(c) If an Event of Default occurs and is continuing, Indenture
Trustee may, as more particularly provided in Section 5.4, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders, by
such appropriate proceedings as 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 Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the 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 Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial proceedings
relative to Issuer or other obligor upon the Notes, or to the creditors or
property of Issuer or such other obligor, 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 Indenture
Trustee shall have made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such proceedings or
otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of Indenture Trustee (including any claim
for reasonable compensation to 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 made, by Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence, bad faith or willful
misconduct) and of the Noteholders allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes in any election of a trustee, a
standby trustee or person performing similar functions in any such
proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of 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 Indenture Trustee or the Holders of Notes allowed in any judicial
proceedings relative to 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 Indenture Trustee, and, in the event that Indenture
Trustee shall consent to the making of payments directly to such
Noteholders, to pay to Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to Indenture Trustee, each
predecessor
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Indenture Trustee and their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made,
by Indenture Trustee and each predecessor Indenture Trustee except as a
result of negligence, bad faith or willful misconduct.
(e) Nothing herein contained shall be deemed to authorize
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 Holder thereof or to
authorize 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 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 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 Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes.
(g) In any proceedings brought by Indenture Trustee (and also
any proceedings involving the interpretation of any provision of this Indenture
to which Indenture Trustee shall be a party), Indenture Trustee shall be held to
represent all the Holders of the Notes, 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, Indenture Trustee may do one or more of
the following (subject to Section 5.5):
(i) institute proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from Issuer and any other obligor upon such Notes moneys adjudged due;
(ii) institute proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the 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 Indenture Trustee and the Holders of the Notes; and
(iv) sell the 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 that Indenture Trustee may not sell or otherwise liquidate the Trust
Estate following an Event of Default unless:
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(A) the Event of Default is of the type described in
Section 5.1(a) or (b); or
(B) with respect to an Event of Default described in
Section 5.1(c):
(1) the Noteholders of all Outstanding Notes
and the Certificateholders of all outstanding
Certificates consent thereto; or
(2) the proceeds of such sale or liquidation
are sufficient to pay in full the principal of and
accrued interest on the Outstanding Notes and
outstanding Certificates.
(C) with respect to any Event of Default described in
Section 5.1(d) and (e):
(1) the Noteholders of Notes evidencing 100%
of the principal amount of the Controlling Note Class
consent thereto; or
(2) the proceeds of such sale or liquidation
are sufficient to pay in full the principal of and
the accrued interest on the Outstanding Notes; or the
Indenture Trustee
(v) determines (but shall have no obligation to make such
determination) that the Indenture Trust Estate will not continue to
provide sufficient funds for the payment of principal of and interest
on the Notes as they would have become due if the Notes had not been
declared due and payable; and
(vi) the Indenture Trustee obtains the consent of Noteholders
of Notes evidencing not less than 66 2/3% of the principal amount of
the Controlling Note Class; or
(vii) In determining such sufficiency or insufficiency with
respect to clause (B)(2) and (C)(2) or (C)(3)(x), 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
Trust Estate for such purpose.
(b) Notwithstanding the provisions of Section 8.2, following
the occurrence and during the continuation of an Event of Default specified in
Section 5.1(a), 5.1(b), 5.1(d) or 5.1(e) which has resulted in an acceleration
of the Notes (or following the occurrence of any such event after an Event of
Default specified in Section 5.1(c) has occurred and the Trust has been
liquidated), if Indenture Trustee collects any money or property, it shall pay
out such money or property (and other amounts including amounts held on deposit
in the Reserve Account) held as Collateral for the benefit of the Noteholders,
net of liquidation costs associated with the sale of the Trust Estate, in the
following order:
FIRST: to Indenture Trustee for amounts due under Section 6.7
provided that such amount shall not exceed $200,000 in the aggregate;
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SECOND: to Servicer for due and unpaid Servicing Fees;
THIRD: to Class A Noteholders for amounts due and unpaid on
the Class A Notes for interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Class A Notes for
interest;
FOURTH: to Noteholders of the Class A-1 Notes for amounts and
unpaid on the Class A-1 Notes for principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class A-1
Notes for principal, until principal amount of the Outstanding Class A-1 Notes
is reduced to zero;
FIFTH: to Noteholders of the Class A-2 Notes, Class A-3 Notes
and Class A-4 Notes, for amounts due and unpaid on the Class A-2 Notes, Class
A-3 Notes and Class A-4 Notes for principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class A-2
Notes, Class A-3 Notes and Class A-4 Notes for principal, until the principal
amount of the Outstanding Class A-2 Notes, Class A-3 Notes and Class A-4 Notes
is reduced to zero;
SIXTH: to Noteholders of the Class B Notes for amounts due and
unpaid on the Class B Notes in respect of interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Class B
Notes for interest;
SEVENTH: to Noteholders of the Class B Notes for amounts due
and unpaid on the Class B Notes for principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class B
Notes for principal, until the principal amount of the Outstanding Class B Notes
is reduced to zero;
EIGHTH: to Noteholders of the Class C Notes for amounts due
and unpaid on the Class C 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 for interest;
NINTH: to Noteholders of the Class C Notes for amounts due and
unpaid on the Class C Notes for principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class C
Notes for principal, until the principal amount of the Outstanding Class C Notes
is reduced to zero;
TENTH: to the Indenture Trustee, any amounts due under Section
6.7 not paid pursuant to clause FIRST above; and
ELEVENTH: to the Certificate Distribution Account, for
distribution to the Certificateholders.
Indenture Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 5.4. At least 15 days before such record
date, Issuer shall mail to each Noteholder and Indenture Trustee a notice that
states the record date, the payment date and,
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based on information provided by the Servicer, the amount to be paid. The
Indenture Trustee shall not be required to determine any amount required to be
paid pursuant to any of clauses SECOND to NINTH or clause ELEVENTH above, except
in its capacity (if any) as Successor Servicer.
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, Indenture Trustee may, but need not, elect to maintain
possession of the Trust Estate. 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 Indenture Trustee shall take such
desire into account when determining whether or not to maintain possession of
the Trust Estate. In determining whether to maintain possession of the Trust
Estate, 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
Trust Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note 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 Holder has previously given written notice to
Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding Amount
of the Notes of the Controlling Note Class have made written request to
Indenture Trustee to institute such proceeding in respect of such Event of
Default in its own name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to Indenture Trustee
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in complying with such request;
(d) Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such proceedings;
(e) no direction inconsistent with such written request has
been given to Indenture Trustee during such 60-day period by the Holders of a
majority of the Outstanding Amount of the Notes of the Controlling Note Class;
and
(f) such Event of Default actually shall have occurred and
shall be continuing; it being understood and intended that no one or more
Holders of Notes 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 Holders of Notes or to obtain or to seek to obtain priority
or preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided.
In the event Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of Notes,
each representing less than a majority of the Outstanding Amount of the Notes of
the Controlling Note Class, Indenture
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Trustee shall submit the matter to a vote of the Notes of the Controlling Note
Class to determine what action, if any, shall be taken, notwithstanding any
other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this Indenture,
the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any, on
such Note on or after the respective due dates thereof expressed in such Note or
this Indenture (or, in the case of redemption, on or after the Redemption Date)
and to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies. If 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 Indenture Trustee
or to such Noteholder, then and in every such case Issuer, 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 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 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 Indenture Trustee or any Holder of any Note 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 an
acquiescence therein. Every right and remedy given by this Article V or by law
to Indenture Trustee or to the Noteholders may be exercised from time to time,
and as often as may be deemed expedient, by Indenture Trustee or by the
Noteholders, as the case may be.
SECTION 5.11 Control by Controlling Note Class of Noteholders.
The Holders of a majority of the Outstanding Amount of the Controlling Note
Class Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to Indenture Trustee with
respect to the Notes or exercising any trust or power conferred on Indenture
Trustee; provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
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(b) subject to the express terms of Section 5.4, any direction
to Indenture Trustee to sell or liquidate the Trust Estate shall be by the
Holders of Notes representing not less than 100% of the Outstanding Amount of
the Notes of the Controlling Note Class;
(c) if the conditions set forth in Section 5.5 have been
satisfied and Indenture Trustee elects to retain the Trust Estate pursuant to
such Section, then any direction to Indenture Trustee by Holders of Notes
representing less than 100% of the Outstanding Amount of the Notes of the
Controlling Note Class to sell or liquidate the Trust Estate shall be of no
force and effect;
(d) Indenture Trustee may take any other action deemed proper
by Indenture Trustee that is not inconsistent with such direction; and
(e) such direction shall be in writing;
provided, further, that, subject to Section 6.1, Indenture Trustee need not take
any action that it determines might involve it in liability or might materially
adversely affect the rights of any Noteholders not consenting to such action.
Notwithstanding anything contained herein to the contrary, the Indenture Trustee
shall not be bound, obligated or required to take any action at the request or
direction of any Holder pursuant to this Section 5.11 if such Holder shall not
have made available to the Indenture Trustee security or indemnity reasonably
acceptable to the Indenture Trustee against the costs, expenses and liabilities
(including fees and expenses of its agents and counsel) which might be incurred
by it in compliance with the written request or direction.
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 of not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class may waive any past Default or Event of
Default and its consequences except a Default (a) in payment of principal of or
interest on any of the Notes, (b) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Note or (c) depriving the Indenture Trustee or any Noteholder of any lien, which
waiver shall require the consent of the Indenture Trustee or such Noteholder, as
the case may be. In the case of any such waiver, Issuer, Indenture Trustee and
the Holders of the Notes 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 Holder of any Note by such Holder'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 Indenture Trustee for any action taken,
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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 shall not apply to (a) any suit instituted by
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 Note Class, more than 10% of
the Outstanding Amount of the Controlling Note Class) or (c) any suit instituted
by any Noteholder for the enforcement of the payment of principal of or interest
on any Note on or after the respective due dates expressed in such Note and in
this Indenture (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. Issuer
covenants (to the extent that it may lawfully do so) that it will 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 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
will not hinder, delay or impede the execution of any power herein granted to
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. 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 Indenture Trustee or the Noteholders shall be impaired by
the recovery of any judgment by Indenture Trustee against Issuer or by the levy
of any execution under such judgment upon any portion of the Trust Estate or
upon any of the assets of Issuer. Any money or property collected by the
Indenture Trustee shall be applied in accordance with Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain
Obligations.
(a) Promptly following a request from Indenture Trustee to do
so and at Administrator's expense, Issuer agrees to take all such lawful action
as Indenture Trustee may request to compel or secure the performance and
observance by Seller and Servicer, as applicable, of each of their obligations
to Issuer under or in connection with the Sale and Servicing Agreement or by the
Seller or any Seller Affiliate, as applicable, of each of their obligations
under or in connection with each Purchase Agreement, in each case, in accordance
with the terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to Issuer under or in connection with the Sale and
Servicing Agreement and the Purchase Agreement, as the case may be, to the
extent and in the manner directed by Indenture Trustee, including the
transmission of notices of default on the part of Seller, Servicer or applicable
Seller Affiliates thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by Seller or Servicer of
each of their obligations under the Sale and Servicing Agreement or by the
Seller or any Seller Affiliate, as applicable, of each of their obligations
under or in connection with each Purchase Agreement.
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(b) If an Event of Default has occurred and is continuing,
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Notes of the Controlling
Note Class shall, exercise all rights, remedies, powers, privileges and claims
of Issuer against Seller or Servicer under or in connection with the Sale and
Servicing Agreement, or against the Seller or Seller Affiliate under the
Purchase Agreement, including the right or power to take any action to compel or
secure performance or observance by Seller, Servicer or applicable Seller
Affiliate of each of their obligations to Issuer thereunder and to give any
consent, request, notice, direction, approval, extension or waiver under the
Sale and Servicing Agreement or any Purchase Agreement, as applicable, and any
right of Issuer to take such action shall be suspended.
ARTICLE VI
INDENTURE TRUSTEE.
SECTION 6.1 Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, of
which a Responsible Officer of Indenture Trustee has actual knowledge, 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) Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and
the other Basic Documents to which it is a party and no implied
covenants or obligations shall be read into this Indenture and the
other Basic Documents against Indenture Trustee; and
(ii) in the absence of bad faith on its part, 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 Indenture Trustee and conforming to the
requirements of this Indenture and the other Basic Documents; however,
Indenture Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture and the other Basic Documents.
(c) 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;
(ii) Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that Indenture Trustee was negligent in ascertaining the
pertinent facts; and
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(iii) Indenture Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to any Basic Document or the
direction of the Holders of a majority in principal amount of the
required Notes.
(d) Indenture Trustee shall not be liable for interest on any
money received by it except as Indenture Trustee may agree in writing with
Issuer. The Indenture Trustee shall have no obligation to invest and reinvest
any cash held in the applicable accounts in the absence of timely and specific
written investment directions. In no event shall the Indenture Trustee be liable
for the selection of investments or for investment losses incurred thereon by
reason of investment performance, liquidation prior to stated maturity or
otherwise. 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 to be provided with timely written investment
directions.
(e) Money held in trust by 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 or any other Basic Document
shall require Indenture Trustee to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties hereunder or
thereunder 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 assured to it.
(g) Every provision of this Indenture and each other Basic
Document relating to the conduct or affecting the liability of or affording
protection to Indenture Trustee shall be subject to the provisions of this
Section and to the provisions of the TIA.
(h) Indenture Trustee shall take all actions required to be
taken by the Indenture Trustee under the Sale and Servicing Agreement.
SECTION 6.2 Rights of Indenture Trustee.
(a) Indenture Trustee may conclusively rely and shall be
protected in acting or refraining from acting on any document believed by it to
be genuine and to have been signed or presented by the proper person. Indenture
Trustee need not investigate any fact or matter stated in the document. The
Indenture Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, note or other paper or
document, but the Indenture Trustee, in its sole discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Indenture Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Issuer, Seller or the Servicer, personally or by agent or attorney.
(b) Before Indenture Trustee acts or refrains from acting, it
may require and is entitled to receive an Officer's Certificate or an Opinion of
Counsel. Indenture Trustee shall not be liable for any action it takes, suffers
or omits to take in good faith in reliance on the Officer's Certificate or
Opinion of Counsel. The Indenture Trustee shall be under no obligation to
exercise
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any of the powers vested in it by this Indenture or any other Basic Document at
the request or direction of any of the Noteholders pursuant to this Indenture,
unless such Noteholders shall have offered to the Indenture Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(c) Indenture Trustee may execute any of the trusts or powers
hereunder and under the other Basic Documents or perform any duties hereunder or
thereunder either directly or by or through agents or attorneys or a custodian
or nominee, and Indenture Trustee shall not be responsible for any misconduct or
negligence on the part of, or for the supervision of, Xxxxx Fargo Auto
Receivables Corporation, Xxxxx Fargo Bank, N.A., or any other such agent,
attorney, custodian or nominee appointed with due care by it hereunder.
Indenture Trustee shall have no duty to monitor the performance of Issuer.
(d) Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, that Indenture Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(e) Indenture Trustee may consult with counsel, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture,
the Notes and the other Basic Documents shall be full and complete authorization
and protection from liability in respect to any action taken, omitted or
suffered by it hereunder or under any other Basic Document in good faith and in
accordance with the advice or opinion of such counsel.
(f) Except in its capacity as Successor Servicer, the
Indenture Trustee shall not have any obligation or other duty to make, arrange
or ensure the completion of any recording, filing or registration of any
instrument or other document (including any UCC financing statements), or any
amendments thereof or supplements thereto, with respect to any Receivable or
Financed Vehicle, or to determine whether any such document, amendment or
supplement is in suitable form for any purpose, and shall not have any
obligation or other duty with respect to the payment of any fee, tax or other
charge in connection therewith.
(g) Except in its capacity as Successor Servicer, the
Indenture Trustee shall not have any obligation to see to the payment or
discharge of any lien securing the Receivables, the application of any payment
of interest or principal in respect of any Receivable or the transfer or
delivery of property released from any such lien, or to make any demand or give
any notice with respect thereto.
(h) The Indenture Trustee shall not have any liability for the
acts or omissions of other parties that are not in accordance with the Basic
Documents and shall not be concerned with or accountable for the use or
application of monies deposited or withdrawn, or required to be deposited or
withdrawn, to or from any account by any other party or, to the extent directed
to make any such deposit or withdrawal by any such party, by the Indenture
Trustee.
(i) Any request or direction of the Issuer shall be
sufficiently evidenced by an Issuer Request or Issuer Order.
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(j) The Indenture Trustee shall not be required to provide any
surety or bond of any kind in connection with the acceptance or performance of
its duties hereunder or under any other Basic Document.
(k) The Indenture Trustee shall not have any responsibility or
liability with respect to the legality, validity or enforceability of any
Receivable or the sufficiency of any agreement, instrument or other document
evidencing or otherwise related to any Receivable. The Indenture Trustee shall
have no obligation or other duty to inspect, review or otherwise examine any
such document (including any document in a Receivable File) for any purpose.
SECTION 6.3 Individual Rights of Indenture Trustee. Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with Issuer or its Affiliates with the same
rights it would have if it were not Indenture Trustee. Any Paying Agent,
Authenticating Agent, Note Registrar, co-registrar, co-paying agent or other
agent of the Indenture Trustee may do the same with like rights. However,
Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4 Indenture Trustee's Disclaimer. Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes or any other Basic Document, shall not
be accountable for Issuer's use of the proceeds from the Notes, and shall not be
responsible for any statement or omission of Issuer in the Indenture or any
other Basic Document or in any document issued in connection with the sale of
the Notes or in the Notes other than Indenture Trustee's certificate of
authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is
continuing and if it is either actually known or written notice of the existence
thereof has been delivered to a Responsible Officer of Indenture Trustee,
Indenture Trustee shall mail to each Noteholder notice of the Default within 90
days after such knowledge or notice 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), Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Noteholders. The Indenture Trustee shall not be charged with knowledge of a
Default, Event of Default or Servicer Termination Event unless a Responsible
Officer of the Indenture Trustee has actual knowledge thereof or shall have
received written notice thereof.
SECTION 6.6 Reports by Indenture Trustee to Holders. Indenture
Trustee shall deliver to each Noteholder such information as may be reasonably
required to enable such Holder to prepare its Federal and state income tax
returns.
SECTION 6.7 Compensation and Indemnity.
(a) The compensation and reimbursement of expenses of
Indenture Trustee shall be governed by the Administration Agreement. In
addition, Issuer shall reimburse any expenses incurred by the Indenture Trustee
in pursuing remedies pursuant to Section 5.4. Issuer has caused Administrator to
agree to indemnify Indenture Trustee and its officers, directors, employees and
agents against any and all loss, liability or expense (including attorneys' fees
and
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expenses) incurred by it in connection with the acceptance or the administration
of this trust and the performance of its duties hereunder. Neither Issuer nor
Administrator need reimburse any expense or indemnify against any loss,
liability or expense incurred by Indenture Trustee through Indenture Trustee's
own willful misconduct, negligence or bad faith or to the extent arising from
the breach by the Indenture Trustee of any of its representations and warranties
and covenants set forth herein.
(b) Issuer's payment obligations to Indenture Trustee pursuant
to this Section and the Administration Agreement referenced in the preceding
paragraph shall survive the discharge of this Indenture subject to a
satisfaction of the Rating Agency Condition. When Indenture Trustee incurs
expenses after the occurrence of a Default specified in Section 5.1(d) or (e)
with respect to 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) Indenture
Trustee may resign at any time by so notifying Issuer. The Holders of a majority
in Outstanding Amount of the Notes of the Controlling Note Class may remove
Indenture Trustee by so notifying Indenture Trustee and may appoint a successor
Indenture Trustee. Issuer shall remove Indenture Trustee if:
(i) Indenture Trustee fails to comply with Section 6.11;
(ii) an Insolvency Event occurs with respect to Indenture
Trustee;
(iii) a receiver or other public officer takes charge of
Indenture Trustee or its property; or
(iv) Indenture Trustee otherwise becomes incapable of acting.
(b) If Indenture Trustee resigns or is removed or if a vacancy
exists in the office of Indenture Trustee for any reason (Indenture Trustee in
such event being referred to herein as the retiring Indenture Trustee), Issuer
shall promptly appoint a successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to Issuer.
Thereupon the resignation or removal of the retiring Indenture Trustee shall
become effective, and the successor Indenture Trustee shall have all the rights,
powers and duties of Indenture Trustee under this Indenture subject to
satisfaction of the Rating Agency Condition. The successor Indenture Trustee
shall mail a notice of its succession to Noteholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee to
the successor Indenture Trustee.
(d) If a successor Indenture Trustee does not take office
within 30 days after the retiring Indenture Trustee resigns or is removed, the
retiring Indenture Trustee, Issuer or the Holders of a majority in Outstanding
Amount of the Notes of the Controlling Note Class may petition any court of
competent jurisdiction for the appointment of a successor Indenture Trustee.
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(e) If Indenture Trustee fails to comply with Section 6.11,
any Noteholder may petition any court of competent jurisdiction for the removal
of Indenture Trustee and the appointment of a successor Indenture Trustee.
(f) Any resignation or removal of Indenture Trustee and
appointment of a Successor Indenture Trustee pursuant to any of the provisions
of this Section shall not become effective until acceptance of appointment by
the successor Indenture Trustee pursuant to this Section 6.8 and payment of all
fees and expenses owed to the outgoing Indenture Trustee.
(g) Notwithstanding the resignation or removal of Indenture
Trustee pursuant to this Section, Issuer's and Administrator's obligations under
Section 6.7 shall continue for the benefit of the retiring Indenture Trustee.
(h) Indenture Trustee shall not be liable for the acts or
omissions of any successor Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger.
(a) If 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 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. Indenture Trustee shall
provide the Rating Agencies and the Administrator prior written notice of any
such transaction.
(b) In case at the time such successor or successors by
merger, conversion or consolidation to 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 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 Indenture Trustee may authenticate such Notes
either in the name of any predecessor hereunder or in the name of the successor
to Indenture Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Notes or in this Indenture provided that
the certificate of 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, after delivering written notice to the Administrator, for the purpose
of meeting any legal requirement of any jurisdiction in which any part of Issuer
may at the time be located, Indenture Trustee shall have the power and may
execute and deliver all instruments 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 Trust, or any part
hereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the
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terms of eligibility as a successor trustee under Section 6.11 and no notice to
Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon Indenture Trustee shall be conferred or imposed upon and
exercised or performed by Indenture Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without 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 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 Issuer 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 Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder, including acts
or omissions of predecessor or successor trustees; and
(iii) 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 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 Agreement 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
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, Indenture Trustee. Every such instrument shall be filed with
Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute 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 invest in and be
exercised by Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification.
(a) Indenture Trustee shall at all times satisfy the
requirements of TIA Section 310(a). Indenture Trustee shall have a combined
capital and surplus of at least $20,000,000 as set forth in its most recent
published annual report of condition and shall have a long term debt rating of
investment grade or better by the Rating Agencies or shall otherwise be
acceptable to the Rating Agencies. Indenture Trustee shall comply with TIA
Section 310(b), including the
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optional provision permitted by the second sentence of TIA Section 310(b)(9);
provided that there shall be excluded from the operation of TIA Section
310(b)(1) any indenture or indentures under which other securities of Issuer are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met.
(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 TIA or the Commission, the Indenture Trustee shall resign with
respect to the Class A Notes, the Class B Notes and/or the Class C Notes in
accordance with Section 6.8 of this Indenture, and the Issuer shall appoint a
successor Indenture Trustee for two or all of such Classes, as applicable, so
that there will be separate Indenture Trustees for the Class A Notes, the Class
B Notes and the Class C 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, 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.
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS.
SECTION 7.1 Issuer to Furnish Indenture Trustee Names and
Addresses of Noteholders. Issuer will furnish or cause to be furnished to
Indenture Trustee (a) not more than five days after the earlier of (i) each
Record Date and (ii) three months after the last Record Date, a list, in such
form as Indenture Trustee may reasonably require, of the names and addresses of
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the Holders as of such Record Date, (b) at such other times as Indenture Trustee
may request in writing, within 30 days after receipt by Issuer of any such
request, a list of similar form and content as of a date not more than 10 days
prior to the time such list is furnished; provided that so long as (i) Indenture
Trustee or its designee is Note Registrar, or (ii) the Notes are Book-Entry
Notes, no such list shall be required to be furnished and in such case, upon the
written request of Issuer or Owner Trustee, Indenture Trustee or its designee
will promptly furnish Owner Trustee a list of Noteholders as of the date
specified by Owner Trustee.
SECTION 7.2 Preservation of Information; Communications to
Noteholders.
(a) Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders contained in
the most recent list furnished to Indenture Trustee as provided in Section 7.1
and the names and addresses of Holders received by Indenture Trustee in its
capacity as Note Registrar. Indenture Trustee may destroy any list furnished to
it as provided in such Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or
under the Notes. Upon receipt by the Indenture Trustee of any request by three
or more Noteholders or by one or more Noteholders of Notes evidencing not less
than 25% of the Outstanding Amount of Notes 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) Issuer, Indenture Trustee and Note Registrar shall have
the protection of TIA Section 312(c).
SECTION 7.3 Reports by Issuer. Issuer shall:
(i) file with Indenture Trustee, at the time that 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) which Issuer may be
required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act;
(ii) file with Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports with
respect to compliance by Issuer with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to Indenture Trustee (and 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 Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a)
as may be required by rules and regulations prescribed from time to
time by the Commission.
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(b) Unless Issuer otherwise determines, the fiscal year of
Issuer shall end on December 31 of each year.
SECTION 7.4 Reports by Indenture Trustee. If required by TIA
Section 313(a), within 60 days after each June 30, beginning with June 30, 2002,
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). Indenture Trustee also shall comply with TIA Section 313(b)(1). A copy
of each report at the time of its mailing to Noteholders shall be filed by
Indenture Trustee with the Commission and each stock exchange, if any, on which
the Notes are listed. Issuer shall notify 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, 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 Indenture Trustee pursuant to this Indenture. Indenture Trustee
shall apply all such money received by it as provided in this Indenture. 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 Trust Estate, 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, Issuer shall cause
Servicer to establish, in the name of Indenture Trustee, for the benefit of the
Noteholders and the Certificateholders, the Trust Accounts as provided in
Section 5.1 of the Sale and Servicing Agreement.
(b) On or before each Payment Date, the Issuer shall cause the
Seller and Servicer to deposit all Available Collections with respect to the
Collection Period preceding such Payment Date in the Collection Account as
provided in Sections 5.2 and 5.4 of the Sale and Servicing Agreement. On or
before each Deposit Date, all amounts required to be demanded under the Demand
Note (or, if applicable, withdrawn from the Reserve Account) and deposited in
the Collection Account pursuant to Section 5.5 of the Sale and Servicing
Agreement shall be demanded under the Demand Note (or, if applicable, withdrawn
by the Indenture Trustee from the Reserve Account) and deposited to the
Collection Account as provided therein, as to which Issuer shall cause Servicer
to timely provide the related instructions.
(c) On each Payment Date, the Indenture Trustee (based on the
information contained in the Servicer's Report delivered on or before the
related Determination Date pursuant to Section 4.9 of the Sale and Servicing
Agreement) shall make the withdrawals from the Collection Account and make
deposits, distributions and payments, to the extent of funds on
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deposit in the Collection Account with respect to the Collection Period
preceding such Payment Date (including funds, if any, deposited therein from the
Reserve Account), in accordance with the provisions of Section 5.5(b) of the
Sale and Servicing Agreement (as to which Issuer shall cause Servicer to timely
provide the related instructions).
(d) On each Payment Date, the Indenture Trustee (based on the
information contained in the Servicer's Report delivered on or before the
related Determination Date pursuant to Section 4.9 of the Sale and Servicing
Agreement) shall withdraw the funds on deposit in the Interest Distribution
Subaccount with respect to the Collection Period preceding such Payment Date and
make distributions and payments in the following order of priority:
(i) first, to the Noteholders of Class A Notes, the Accrued
Class A Note Interest; provided that if there are not sufficient funds
available to pay the entire amount of the Accrued Class A Note
Interest, the amounts available shall be applied to the payment of such
interest on the Class A Notes on a pro rata basis based upon the amount
of interest due on each Class of Class A Notes;
(ii) second, to the Noteholders of Class B Notes, the Accrued
Class B Note Interest; provided that if there are not sufficient funds
available to pay the entire amount of the Accrued Class B Note
Interest, the amounts available shall be applied to the payment of such
interest on the Class B Notes on a pro rata basis; and
(iii) third, to the Noteholders of Class C Notes, the Accrued
Class C Note Interest; provided that if there are not sufficient funds
available to pay the entire amount of the Accrued Class C Note
Interest, the amounts available shall be applied to the payment of such
interest on the Class C Notes on a pro rata basis.
(e) On each Payment Date, the Indenture Trustee (based on the
information contained in the Servicer's Report delivered on or before the
related Determination Date pursuant to Section 4.9 of the Sale and Servicing
Agreement) shall withdraw the funds on deposit in the Principal Distribution
Subaccount with respect to the Collection Period preceding such Payment Date and
shall, except as otherwise provided in Section 5.4(b), make distributions and
payments in the following order of priority:
(i) first, to the Noteholders of the Class A-1 Notes in
reduction of principal until the principal amount of the Outstanding
Class A-1 Notes has been paid in full; provided that if there are not
sufficient funds available to pay the principal amount of the
Outstanding Class A-1 Notes in full, the amounts available shall be
applied to the payment of principal on the Class A-1 Notes on a pro
rata basis;
(ii) second, to the Noteholders of the Class A Notes in
reduction of principal until the principal amount of the Outstanding
Class A Notes has been reduced to 92.609% of the Pool Balance as of the
last day of the preceding Collection Period in the following order of
priority:
(A) first, to the Noteholders of the Class A-2 Notes
until the principal amount of the Outstanding Class A-2 Notes
have been paid in full; provided that if there are not
sufficient funds available to pay the principal amount of the
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Outstanding Class A-2 Notes in full, the amounts available
shall be applied to the payment of principal on the Class A-2
Notes on a pro rata basis;
(B) second, to the Noteholders of the Class A-3 Notes
until the principal amount of the Class A-3 Notes have been
paid in full; provided that if there are not sufficient funds
available to pay the principal amount of the Outstanding Class
A-3 Notes in full, the amounts available shall be applied to
the payment of principal on the Class A-3 Notes on a pro rata
basis; and
(C) third, to the Noteholders of the Class A-4 Notes
until the principal amount of the Class A-4 Notes have been
paid in full; provided that if there are not sufficient funds
available to pay the principal amount of the Outstanding Class
A-4 Notes in full, the amounts available shall be applied to
the payment of principal on the Class A-4 Notes on a pro rata
basis;
(iii) third, to the Noteholders of the Class B Notes in
reduction of principal until the principal amount of the Outstanding
Class B Notes has been reduced to 3.359% of the Pool Balance as of the
last day of the preceding Collection Period; provided that if there are
not sufficient funds available to pay the principal amount of the
Outstanding Class B Notes in full, the amounts available shall be
applied to the payment of principal on the Class B Notes on a pro rata
basis;
(iv) fourth, to the Noteholders of the Class C Notes in
reduction of principal until the principal amount of the Outstanding
Class C Notes has been reduced to 2.016% of the Pool Balance as of the
last day of the preceding Collection Period; provided that if there are
not sufficient funds available to pay the principal amount of the
Outstanding Class C Notes in full, the amounts available shall be
applied to the payment of principal on the Class C Notes on a pro rata
basis; and
(v) fifth, any remaining amounts, to the Certificate
Distribution Account.
SECTION 8.3 General Provisions Regarding Accounts.
(a) The funds in the Trust Accounts shall be invested in
Eligible Investments in accordance with and subject to Section 5.1(b) of the
Sale and Servicing Agreement. Indenture Trustee shall not be directed 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 Indenture Trustee to make any such investment or sale, if
requested by Indenture Trustee, Issuer shall deliver to Indenture Trustee an
Opinion of Counsel, acceptable to Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), 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 Eligible Investment included therein
except for losses attributable to Indenture Trustee's failure to make payments
on such Eligible Investments issued by Indenture Trustee, in its commercial
capacity as principal obligor and not as trustee, in accordance with their
terms.
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(c) If (i) investment directions shall not have been given for
any funds on deposit in the Trust Accounts to Indenture Trustee by 11:00 a.m.
Eastern Time (or such other time as may be agreed by Issuer, Servicer and
Indenture Trustee) on any Business Day; (ii) 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,
amounts collected or receivable from the Trust Estate are being applied in
accordance with Section 5.5 as if there had not been such a declaration; then
Indenture Trustee shall, to the fullest extent practicable, invest and reinvest
funds in the Trust Accounts in one or more Eligible Investments in accordance
with the standing instructions most recently given by the Servicer. Indenture
Trustee shall not be liable for losses in respect of such investments in
Eligible Investments that comply with the requirements of the Basic Documents.
SECTION 8.4 Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant
to Section 6.7, 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 any other Basic Document, or convey Indenture Trustee's
interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture or such other document. No
party relying upon an instrument executed by Indenture Trustee as provided in
this Article VIII shall be bound to ascertain Indenture Trustee's authority,
inquire into the satisfaction of any conditions precedent or see to the
application of any moneys.
(b) Indenture Trustee shall, at such time as there are no
Notes outstanding and all sums due Indenture Trustee pursuant to Section 6.7
have been paid, release any remaining portion of the Trust Estate that secured
the Notes from the lien of this Indenture and release to Issuer or any other
Person entitled thereto any funds then on deposit in the Trust Accounts.
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.4(b) only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and (if required
by the TIA) Independent Certificates in accordance with TIA Sections 314(c) and
314(d)(1) meeting the applicable requirements of Section 11.1.
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) Seller in accordance with Section 3.3 of the Sale and
Servicing Agreement and (ii) to Servicer in accordance with Section 4.7 of the
Sale and Servicing Agreement.
SECTION 8.5 Opinion of Counsel. Indenture Trustee shall
receive at least seven days' notice when requested by Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and Indenture Trustee may also require as a condition to such action, an Opinion
of Counsel, in form and substance satisfactory to 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 that such
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Opinion of Counsel shall not be required to express an opinion as to the fair
value of the 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 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 Holders of any Notes but with prior
written notice to the Rating Agencies by Issuer, as evidenced to Indenture
Trustee, Issuer and 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 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 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 Issuer, and the
assumption by any such successor of the covenants of Issuer herein and
in the Notes contained;
(iii) to add to the covenants of Issuer, for the benefit of
the Holders of the Notes, or to surrender any right or power herein
conferred upon Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided that such action shall not materially and adversely
affect the interests of the Holders of the Notes;
(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;
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect 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
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(viii) (A) to add, modify or eliminate such provisions of the
Indenture as may be necessary or advisable in order to enable all or a
portion of Issuer to qualify as, and to permit an election to be made
to cause all or a portion of Issuer to be treated as, a "financial
asset securitization investment trust" under the Code, and (B) in
connection with any such election, to modify or eliminate existing
provisions set forth in this Indenture relating to the intended federal
income tax treatment of the Notes or Certificates and Issuer in the
absence of the election; it being a condition to any such amendment
that the Rating Agency Condition shall have been satisfied; and
(ix) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable (a) the transfer to Issuer of
all or any portion of the Receivables to be recognized as a sale under
GAAP by Seller to Issuer, (b) Issuer to avoid becoming a member of
Seller's consolidated group under GAAP or (c) the Seller, any Seller
Affiliate or any of other Affiliates to otherwise comply with or obtain
more favorable treatment under any law or regulation or any accounting
rule or principle; it being a condition to any such amendment that the
Rating Agency Condition shall have been satisfied.
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) Issuer and Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Holders of the Notes but with
prior written notice to the Rating Agencies by Issuer, as evidenced to Indenture
Trustee, 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 the
rights of the Holders of the Notes under this Indenture; provided that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder.
SECTION 9.2 Supplemental Indentures with Consent of
Noteholders. (a) Issuer and Indenture Trustee, when authorized by an Issuer
Order, also may, with prior notice to the Rating Agencies and with the consent
of the Holders of not less than a majority of the Outstanding Amount of the
Notes, by Act of such Holders delivered to Issuer and Indenture Trustee, 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 the rights of the
Holders of the Notes under this Indenture; provided that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:
(i) change the date of payment of any installment of principal
of or interest on any Note, or reduce the principal amount thereof, the
interest rate thereon or the Redemption Price with respect thereto,
change the provision of this Indenture relating to the application of
collections on, or the proceeds of the sale of, the 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
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right to institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor, as
provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes or the Controlling Note Class, the consent of the Holders of
which is required for any such supplemental indenture, or the consent
of the Holders of which is required for any waiver of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture;
(iii) modify or alter (x) the provisions of the proviso as to
the definition of the term "Outstanding" or (y) the definition of
"Controlling Note Class";
(iv) reduce the percentage of the Outstanding Amount of the
Notes or Controlling Note Class required to direct Indenture Trustee to
direct Issuer to sell or liquidate the Trust Estate pursuant to Section
5.4;
(v) modify any provision of this Section except to increase
any percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified
or waived without the consent of the Holder of each Outstanding Note
affected thereby;
(vi) 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 Holders of Notes to the
benefit of any provisions for the mandatory redemption of the Notes
contained herein; or
(vii) 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
Trust Estate or, except as otherwise permitted or contemplated herein
or in the Basic Documents, terminate the lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note
of the security provided by the lien of this Indenture.
(b) Indenture Trustee may determine whether or not any Notes
would be affected by any supplemental indenture and any such determination shall
be conclusive upon the Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. Indenture Trustee shall not be liable for
any such determination made in good faith.
(c) It shall not be necessary for any Act of Noteholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
(d) Promptly after the execution by Issuer and Indenture
Trustee of any supplemental indenture pursuant to this Section, Indenture
Trustee shall mail to the Holders 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 Indenture Trustee to
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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 modifications thereby of the
trusts created by this Indenture, 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. Indenture
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture that affects 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 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 Indenture Trustee, Issuer and the Holders of the Notes shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity With Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the Trust Indenture Act
as then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by Indenture Trustee
shall, bear a notation in form approved by Indenture Trustee as to any matter
provided for in such supplemental indenture. If Issuer or Indenture Trustee
shall so determine, new Notes so modified as to conform, in the opinion of
Indenture Trustee and Issuer, to any such supplemental indenture may be prepared
and executed by Issuer and authenticated and delivered by Indenture Trustee in
exchange for Outstanding Notes.
ARTICLE X
REDEMPTION OF NOTES.
SECTION 10.1 Redemption. The Notes are subject to redemption
in whole, but not in part, at the direction of Servicer pursuant to Section
9.1(a) of the Sale and Servicing Agreement, on any Payment Date on which
Servicer exercises its option to purchase the Trust Estate pursuant to said
Section 9.1(a), for a purchase price equal to the Redemption Price; provided
that Issuer has available funds sufficient to pay the Redemption Price. Servicer
or Issuer shall furnish the Rating Agencies notice of such redemption. If the
Notes are to be redeemed pursuant to this Section 10.1(a), Servicer or Issuer
shall furnish notice of such election to Indenture Trustee not later than 25
days prior to the Redemption Date and Issuer shall deposit
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with Indenture Trustee in the Note Distribution Account the Redemption Price of
the Notes to be redeemed whereupon all such Notes shall be due and payable on
the Redemption Date upon the furnishing of a notice complying with Section 10.2
to each Holder of the Notes.
SECTION 10.2 Form of Redemption Notice. (a) Notice of
redemption under Section 10.1(a) shall be given by Indenture Trustee by
facsimile or by first-class mail, postage prepaid, transmitted or mailed prior
to the applicable Redemption Date to each Holder of Notes, as of the close of
business on the Record Date preceding the applicable Redemption Date, at such
Holder's address appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such
Redemption Date is not applicable and that payments shall be made only
upon presentation and surrender of such Notes and the place where such
Notes are to be surrendered for payment of the Redemption Price (which
shall be the office or agency of Issuer to be maintained as provided in
Section 3.2); and
(iv) that interest on the Notes shall cease to accrue on the
Redemption Date.
Notice of redemption of the Notes shall be given by Indenture Trustee in the
name and at the expense of Issuer. Failure to give notice of redemption, or any
defect therein, to any Holder of any Note shall not impair or affect the
validity of the redemption of such Note.
(b) Prior notice of redemption under Section 10.1(b) is not
required to be given to Noteholders.
SECTION 10.3 Notes Payable on Redemption Date. The Notes to be
redeemed shall, following notice of redemption as required by Section 10.2 (in
the case of redemption pursuant to Section 10.1(a)), on the Redemption Date
become due and payable at the Redemption Price and (unless Issuer shall default
in the payment of the Redemption Price) no interest shall accrue on the
Redemption Price for any period after the date to which accrued interest is
calculated for purposes of calculating the Redemption Price.
ARTICLE XI
MISCELLANEOUS.
SECTION 11.1 Compliance Certificates and Opinions, etc. (a)
Upon any application or request by Issuer to Indenture Trustee to take any
action under any provision of this Indenture, Issuer shall furnish to 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
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Independent Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section, 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:
(i) 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;
(ii) 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;
(iii) 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
(iv) 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 Indenture Trustee that is to be made the basis for
the release of any property or securities subject to the lien of this Indenture,
Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to Issuer of
the Collateral or other property or securities to be so deposited.
(ii) Whenever Issuer is required to furnish to Indenture
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (i), Issuer
shall also deliver to Indenture Trustee an Independent Certificate as
to the same matters, if the fair value to 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 Issuer, as set forth in the certificates delivered
pursuant to clause (i) and this clause (ii), is 10% or more of the
Outstanding Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited, if the fair
value thereof to Issuer as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the
Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Purchased
Receivables or Defaulted Receivables, whenever any property or
securities are to be released from the lien of this Indenture, Issuer
shall also furnish to Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such release) of
the property or securities proposed to be
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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 Issuer is required to furnish to Indenture
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (iii), Issuer
shall also furnish to 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 Purchased Receivables and Defaulted
Receivables, 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) and this clause (iv),
equals 10% or more of the Outstanding Amount of the Notes, 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 of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section, 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 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 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
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 his or her 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
Servicer, Seller, Administrator or Issuer, stating that the information with
respect to such factual matters is in the possession of Servicer, Seller,
Administrator or Issuer, unless such counsel knows, 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, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
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(d) Whenever in this Indenture, in connection with any
application or certificate or report to Indenture Trustee, it is provided that
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of 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 Issuer to have such application granted or
to the sufficiency of such certificate or report. The foregoing shall not,
however, be construed to affect 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. 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 Indenture Trustee, and, where it is
hereby expressly required, to Issuer. Such instrument or instruments (and the
action embodied therein 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 Indenture Trustee and Issuer, if made in the manner
provided in this Section.
(a) The fact and date of the execution by any person of any
such instrument or writing may be proved in any customary manner of Indenture
Trustee.
(b) The ownership of Notes shall be proved by the Note
Register.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes shall bind the Holder
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
Indenture Trustee or 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 to be made upon, given or furnished to or filed with:
(a) Indenture Trustee by any Noteholder, Administrator or
Issuer shall be sufficient for every purpose hereunder if personally delivered,
delivered by overnight courier or mailed certified mail, return receipt
requested and shall be deemed to have been duly given upon receipt to Indenture
Trustee at its Corporate Trust Office, or
(b) Issuer by Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested and shall
be deemed to have been duly given upon receipt to Issuer
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addressed to: Xxxxx Fargo Auto Trust 2001-A, in care of Wilmington Trust
Company, as Owner Trustee, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Office, with a copy to Administrator at Xxxxx Fargo
Bank Minnesota, National Association, Sixth and Marquette Avenue, MAC N9311-161,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxxxxx, or at any other
address previously furnished in writing to Indenture Trustee by Issuer or
Administrator. Issuer shall promptly transmit any notice received by it from the
Noteholders to Indenture Trustee.
Notices required to be given to the Rating Agencies by Issuer, Indenture Trustee
or Owner Trustee shall be in writing, personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested to (i) in
the case of Moody's, at the following address: Xxxxx'x Investors Service, Inc.,
00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (ii) in the case of S&P, at the
following address: Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention of Asset Backed Surveillance Department or
as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 11.5 Notices to Noteholders; Waiver.
(a) Where this Indenture provides for notice to Noteholders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage prepaid to
each Noteholder affected by such event, at his address as it appears on the Note
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Noteholders is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Noteholder shall affect the
sufficiency of such notice with respect to other Noteholders, and any notice
that is mailed in the manner herein provided shall conclusively be presumed to
have been duly given.
(b) Where this Indenture provides for notice in any manner,
such notice may be waived in writing by any Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Noteholders shall be filed with
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 Issuer 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, Issuer may enter into any
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agreement with any Holder of a Note providing for a method of payment, or notice
by Indenture Trustee or any Paying Agent to such Holder, that is different from
the methods provided for in this Indenture for such payments or notices,
provided that such methods are reasonable and consented to by Indenture Trustee.
Issuer will furnish to the trustee a copy of each such agreement and Indenture
Trustee will 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 to be included in this indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control. The provisions
of TIA Sections 310 through 317 that impose duties on any person (including the
provisions automatically deemed included herein unless expressly excluded by
this Indenture) are a part of and govern this Indenture, whether or not
physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by Issuer shall bind its successors
and assigns, whether so expressed or not. All agreements of Indenture Trustee in
this Indenture shall bind its successors.
SECTION 11.10 Severability. 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 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, INCLUDING SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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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 Issuer and at its expense accompanied by an Opinion of
Counsel delivered to the Indenture Trustee (which may be counsel to Indenture
Trustee or any other counsel reasonably acceptable to 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 Indenture Trustee under this Indenture.
SECTION 11.16 Trust Obligation.
(a) No recourse may be taken, directly or indirectly, with
respect to the obligations of Issuer, Seller, Servicer, Owner Trustee or
Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) Seller,
Servicer, Indenture Trustee or Owner Trustee in its individual capacity, (ii)
any owner of a beneficial interest in Issuer, (iii) any partner, owner, member,
beneficiary, agent, officer, director, employee or agent of Seller, Servicer,
Indenture Trustee or Owner Trustee in its individual capacity as such, (iv) or
any holder of a beneficial interest in Issuer, Seller, Servicer, Owner Trustee
or Indenture Trustee or of any successor or assign of Seller, Indenture Trustee
or Owner Trustee in its individual capacity as such, except as any such Person
may have expressly agreed (it being understood that Indenture Trustee and Owner
Trustee have no such obligations in their individual capacity) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity. For all purposes of this Indenture, in the performance of any duties or
obligations of Issuer hereunder, Owner Trustee shall be subject to, and entitled
to the benefits of, the terms and provisions of Article VI, VII and VIII of the
Trust Agreement.
(b) In furtherance of and not in derogation of the foregoing,
to the extent Seller enters into other securitization transactions, each
Noteholder, by accepting a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller to another securitization trust
or other Person or Persons in connection therewith (whether by way of a sale,
capital contribution or by virtue of the granting of a lien) ("Other Assets").
To the extent that, notwithstanding the agreements and provisions contained in
the preceding sentences of this Section, a Noteholder either (i) asserts an
interest or claim to, or benefit from, Other Assets, whether asserted against or
through Seller or any other Person owned by Seller, or (ii) is deemed to have
any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of insolvency
laws or otherwise (including by virtue of Section 1111(b) of the Federal
Bankruptcy Code or any successor provision having similar effect under the
Bankruptcy Code), and whether deemed asserted against or through Seller or any
other Person owned by Seller, then each Noteholder, by accepting a Note, further
acknowledges and agrees that any such interest, claim or benefit in or from
Other Assets is and shall be expressly subordinated to the indefeasible
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payment in full of all obligations and liabilities of Seller which, under the
terms of the relevant documents relating to the securitization of such Other
Assets, are entitled to be paid from, entitled to the benefits of, or otherwise
secured by such Other Assets (whether or not any such entitlement or security
interest is legally perfected or otherwise entitled to priority of distribution
or application under applicable law, including insolvency laws, and whether
asserted against Seller or any other Person owned by Seller), including the
payment of post-petition interest on such other obligations and liabilities.
This subordination agreement shall be deemed a subordination agreement within
the meaning of Section 510(a) of the Bankruptcy Code. Each Noteholder, by
acceptance of a Note, further acknowledges and agrees that no adequate remedy at
law exists for a breach of this Section 11.16(b) and the terms of this Section
11.16(b) may be enforced by an action for specific performance. The provisions
of this Section 11.16(b) shall be for the third party benefit of those entitled
to rely thereon and shall survive the termination of this Agreement.
SECTION 11.17 No Petition. Indenture Trustee, by entering into
this Indenture, and each Noteholder, by accepting a Note, hereby covenant and
agree that they will not at any time institute against Seller or Issuer, or join
in any institution against Seller or 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 Basic
Documents.
SECTION 11.18 Inspection. Issuer agrees that, on reasonable
prior notice, it will permit any representative of Indenture Trustee, during
Issuer's normal business hours, to examine all the books of account, records,
reports, and other papers of Issuer, to make copies and extracts therefrom, to
cause such books to be audited by Independent certified public accountants, and
to discuss Issuer's affairs, finances and accounts with Issuer's officers,
employees, and independent certified public accountants, all at such reasonable
times and as often as may be reasonably requested. Indenture Trustee shall and
shall cause its representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
applications for confidential treatment are unavailing) and except to the extent
that Indenture Trustee may reasonably determine that such disclosure is
consistent with its obligations hereunder.
SECTION 11.19 Confidential Information. Any Holder, by its
acceptance of a Note, shall be deemed to have agreed to keep any information
obtained by it pursuant to Section 4.12 of the Sale and Servicing Agreement
confidential and not to use such information for any other purpose, except as
required by applicable law.
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IN WITNESS WHEREOF, Issuer and 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.
XXXXX FARGO AUTO TRUST 2001-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee,
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely as
Indenture Trustee,
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
63
EXHIBIT A-1
FORM OF CLASS A-1 NOTE
REGISTERED
$[_________________]
No. R-1 CUSIP NO. [____________]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
XXXXX FARGO AUTO TRUST 2001-A
[_____]% CLASS A-1 ASSET BACKED NOTES
Xxxxx Fargo Auto Trust 2001-A, a common law trust existing
under the laws of the State of New York (herein referred to as the "Issuer"),
for value received, hereby promises to pay to CEDE & CO., or registered assigns,
the principal sum of [__________________________] DOLLARS ($[______________])
payable on each Payment Date in an amount equal to the aggregate amount, if any,
payable to Noteholders 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 ______________ __, 2001 (as
from time to time amended, supplemented or otherwise modified and in effect, the
"Indenture"), between the Issuer and [____________________], a
[___________________], 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 [________________], 200_ 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 all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each Payment
Date
64
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 pursuant to Section 2.13 of the Indenture by the Authenticating Agent
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.]
Exhibit A-1-2
65
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: ______________ __, 2001
XXXXX FARGO AUTO TRUST 2001-A
By: Wilmington Trust Company,
as Owner Trustee of Xxxxx Fargo
Auto Trust 2001-A
By:________________________________
Authorized Officer
Exhibit A-1-3
66
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Notes designated above and
referred to in the within-mentioned Indenture.
Date: ______________ __, 2001
[__________________], not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
67
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its [_____]% Class A-1 Asset Backed Notes (the "Class A-1
Notes") which, together with the Issuer's [_____]% Class A-2 Asset Backed Notes
(the "Class A-2 Notes"), [_____]% Class A-3 Asset Backed Notes (the "Class A-3
Notes"), [_____]% Class A-4 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 Asset Backed Notes (the "Class B Notes")
and [_____]% Class C Asset Backed Notes (the "Class C Notes" and, together with
the Class A Notes and the Class B Notes, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Notes
are subject to all terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture. The Class A-1 Notes are senior in right of payment to the Class A-2
Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class
C Notes, each as and to the extent 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
fifteenth day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing [_____________], 2001. All principal
payments on the Class A-1 Notes shall be made pro rata to the Class A-1
Noteholders entitled thereto.
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, if an Event of Default should occur
and be continuing, then and in every such case the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Notes of the Controlling Note Class may declare all the Notes to be
immediately due and payable, by a notice in writing to Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class A-1 Notes will be made in accordance with the
provisions of the Indenture.
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 paid to the Person in whose name such Note (or
one or more Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, 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 will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such
68
Note on a Payment Date or on the Final Scheduled Payment Date for such Class
(and except for the Redemption Price for any Note called for redemption pursuant
to Section 10.1(a) of the Indenture) 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 of the Indenture. Notwithstanding the foregoing, the
entire unpaid principal amount of the 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 Indenture Trustee or the Holders of the Notes representing
not less than a majority of the Outstanding Amount of the Notes of the
Controlling Note Class have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture and, in such event, all
principal payments on each class of Notes shall be made pro rata to the
Noteholders of such class entitled thereto. 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 Issuer expects that the final
installment of principal of and interest on such Note will be paid. Such notice
shall be mailed or transmitted by facsimile prior to such final Payment Date and
shall specify that such final installment will 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 redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class A-1 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B
Notes and the Class C Notes may be redeemed, in whole but not in part, in the
manner and to the extent described in the Indenture and the Sale and Servicing
Agreement.
The transfer of this Note is subject to the restrictions on
transfer specified on the face hereof and to the other limitations set forth in
the Indenture. Subject to the satisfaction of such restrictions and limitations,
the transfer of this Note may be registered on the Note Register upon surrender
of this Note for registration of transfer at the office or agency designated by
the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer, (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner
69
Trustee, each in its individual capacity, or (iv) any holder of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, except as any such Person may have expressly agreed and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity. Each Noteholder or Note Owner,
by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, 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.
In furtherance of and not in derogation of the foregoing
paragraph, to the extent Seller enters into other securitization transactions,
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 and agrees that it
shall have no right, title or interest in or to any assets or interests therein
of Seller (other than the Trust Property, Demand Note and Reserve Account
relating to this transaction) conveyed or purported to be conveyed by Seller to
another securitization trust or other Person or Persons in connection therewith
(whether by way of a sale, capital contribution or by virtue of the granting of
a lien) ("Other Assets"). To the extent that, notwithstanding the agreements and
provisions contained in the preceding sentences of this paragraph, a Noteholder
or Note Owner either (i) asserts an interest or claim to, or benefit from, Other
Assets, whether asserted against or through Seller or any other Person owned by
Seller, or (ii) is deemed to have any such interest, claim or benefit in or from
Other Assets, whether by operation of law, legal process, pursuant to applicable
provisions of insolvency laws or otherwise (including by virtue of Section
1111(b) of the Federal Bankruptcy Code or any successor provision having similar
effect under the Bankruptcy Code), and whether deemed asserted against or
through Seller or any other Person owned by Seller, then 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, further acknowledges and agrees that any such interest,
claim or benefit in or from Other Assets is and shall be expressly subordinated
to the indefeasible payment in full of all obligations and liabilities of Seller
which, under the terms of the relevant documents relating to the securitization
of such Other Assets, are entitled to be paid from, entitled to the benefits of,
or otherwise secured by such Other Assets (whether or not any such entitlement
or security interest is legally perfected or otherwise entitled to priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against Seller or any other Person owned by Seller), including
the payment of post-petition interest on such other obligations and liabilities.
This subordination agreement shall be deemed a subordination agreement within
the meaning of Section 510(a) of the Bankruptcy Code. 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, further acknowledges and agrees that no adequate remedy at
law exists for a breach of this paragraph and the terms of this paragraph may be
enforced by an action for specific performance. The provisions of this paragraph
shall be for the third party benefit of those entitled to rely thereon and shall
survive the termination of this Agreement.
70
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
by accepting the benefits of the Indenture that such Noteholder or Note Owner
will not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness secured by the
Trust Estate. Each Noteholder, by its acceptance of a Note (and each Note Owner
by its acceptance of a beneficial interest in a Note), will be deemed to agree
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the
consent of all Noteholders adversely affected) the Issuer and the Indenture
Trustee to enter into one or more supplemental indentures without the consent of
the Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of the Outstanding Amount of the Controlling Note Class, on behalf
of all Noteholders, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this Note (or any
one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
71
INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE 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.
72
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: ___________________, 200_ By: */____________________________
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.
73
EXHIBIT A-2
FORM OF CLASS A-2 NOTE
REGISTERED
$[_______________]
No. R-1 CUSIP NO. [____________]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
XXXXX FARGO AUTO TRUST 2001-A
[_____] % CLASS A-2 ASSET BACKED NOTES
Xxxxx Fargo Auto Trust 2001-A, a common law trust existing
under the laws of the State of New York (herein referred to as the "Issuer"),
for value received, hereby promises to pay to CEDE & CO., or registered assigns,
the principal sum of [_______________________] DOLLARS ($[___________]) payable
on each Payment Date in an amount equal to the aggregate amount, if any, payable
to Noteholders of Class A-2 Notes on such Payment Date from the Principal
Distribution Account in respect of principal on the Class A-2 Notes pursuant to
Section 3.1 of the Indenture dated as of ______________ __, 2001 (as from time
to time amended, supplemented or otherwise modified and in effect, the
"Indenture"), between the Issuer and [_____________________], a
[________________], 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 [____________], 200_ Payment Date (the
"Class A-2 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
74
all payments of principal made on the preceding 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 fifteenth 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 fifteenth
day of the following calendar month. Interest will be computed on the basis of a
360-day year of twelve 30-day months. Such principal of and interest on this
Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed pursuant to Section 2.13 of the Indenture by the Authenticating Agent
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.]
Exhibit A-2-2
75
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: ______________ __, 2001
XXXXX FARGO AUTO TRUST 2001-A
By: Wilmington Trust Company,
as Owner Trustee of Xxxxx Fargo
Trust 2001-A
By:_________________________________
Authorized Officer
Exhibit A-2-3
76
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Notes designated above and referred to
in the within-mentioned Indenture.
Date: ______________ __, 2001
[_________________________________________],
not in its individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
77
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its [_____]% Class A-2 Asset Backed Notes (the "Class A-2
Notes") which, together with the Issuer's [_____]% Class A-1 Asset Backed Notes
(the "Class A-1 Notes"), [_____]% Class A-3 Asset Backed Notes (the "Class A-3
Notes") and [_____]% Class A-4 Asset Backed Notes (the "Class A-4 Notes" and,
together with the Class A-1 Notes, the Class A-3 Notes and the Class A-4 Notes,
the "Class A Notes"), [_____]% Class B Asset Backed Notes (the "Class B Notes")
and [_____]% Class C Asset Backed Notes (the "Class C Notes" and, together with
the Class A Notes and the Class B Notes, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Notes
are subject to all terms of the Indenture.
The Class A-2 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture. The Class A-2 Notes are subordinated in right of payment to the Class
A-1 Notes and are senior in right of payment to the Class A-3 Notes, the Class
A-4 Notes, the Class B Notes and the Class C Notes, each as and to the extent
provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each
Payment Date in an amount described on the face hereof. "Payment Date" means the
fifteenth day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing [__________], 2001. All principal payments
on the Class A-2 Notes shall be made pro rata to the Class A-2 Noteholders
entitled thereto.
As described on the face hereof, the entire unpaid principal
amount of this Note shall be due and payable on the Class A-2 Final Scheduled
Payment Date. Notwithstanding the foregoing, if an Event of Default should occur
and be continuing, then and in every such case the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Notes of the Controlling Note Class may declare all the Notes to be
immediately due and payable, by a notice in writing to Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class A-2 Notes will be made in accordance with the
provisions of the Indenture.
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 paid to the Person in whose name such Note (or
one or more Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, 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 will be made by wire
transfer in immediately available funds to the account designated by such
nominee
78
and except for the final installment of principal payable with respect to such
Note on a Payment Date or on the Final Scheduled Payment Date for such Class
(and except for the Redemption Price for any Note called for redemption pursuant
to Section 10.1(a) of the Indenture) 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 of the Indenture. Notwithstanding the foregoing, the
entire unpaid principal amount of the 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 Indenture Trustee or the Holders of the Notes representing
not less than a majority of the Outstanding Amount of the Controlling Note Class
of Notes have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2 of the Indenture and, in such event, all principal
payments on each class of Notes shall be made pro rata to the Noteholders of
such class entitled thereto. 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 Issuer expects that the final installment of principal
of and interest on such Note will be paid. Such notice shall be mailed or
transmitted by facsimile prior to such final Payment Date and shall specify that
such final installment will 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
redemptions of Notes shall be mailed to Noteholders as provided in Section 10.2
of the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class A-2 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B
Notes and the Class C Notes may be redeemed, in whole but not in part, in the
manner and to the extent described in the Indenture and the Sale and Servicing
Agreement.
The transfer of this Note is subject to the restrictions on
transfer specified on the face hereof and to the other limitations set forth in
the Indenture. Subject to the satisfaction of such restrictions and limitations,
the transfer of this Note may be registered on the Note Register upon surrender
of this Note for registration of transfer at the office or agency designated by
the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in
79
its individual capacity, (ii) any owner of a beneficial interest in the Issuer,
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, 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.
In furtherance of and not in derogation of the foregoing
paragraph, to the extent Seller enters into other securitization transactions,
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 and agrees that it
shall have no right, title or interest in or to any assets or interests therein
of Seller (other than the Trust Property, Demand Note and Reserve Account
relating to this transaction) conveyed or purported to be conveyed by Seller to
another securitization trust or other Person or Persons in connection therewith
(whether by way of a sale, capital contribution or by virtue of the granting of
a lien) ("Other Assets"). To the extent that, notwithstanding the agreements and
provisions contained in the preceding sentences of this paragraph, a Noteholder
or Note Owner either (i) asserts an interest or claim to, or benefit from, Other
Assets, whether asserted against or through Seller or any other Person owned by
Seller, or (ii) is deemed to have any such interest, claim or benefit in or from
Other Assets, whether by operation of law, legal process, pursuant to applicable
provisions of insolvency laws or otherwise (including by virtue of Section
1111(b) of the Federal Bankruptcy Code or any successor provision having similar
effect under the Bankruptcy Code), and whether deemed asserted against or
through Seller or any other Person owned by Seller, then 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, further acknowledges and agrees that any such interest,
claim or benefit in or from Other Assets is and shall be expressly subordinated
to the indefeasible payment in full of all obligations and liabilities of Seller
which, under the terms of the relevant documents relating to the securitization
of such Other Assets, are entitled to be paid from, entitled to the benefits of,
or otherwise secured by such Other Assets (whether or not any such entitlement
or security interest is legally perfected or otherwise entitled to priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against Seller or any other Person owned by Seller), including
the payment of post- petition interest on such other obligations and
liabilities. This subordination agreement shall be deemed a subordination
agreement within the meaning of Section 510(a) of the Bankruptcy Code. 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, further acknowledges and agrees that no
adequate remedy at law exists for a breach of this paragraph and the terms of
this paragraph may be enforced by an
80
action for specific performance. The provisions of this paragraph shall be for
the third party benefit of those entitled to rely thereon and shall survive the
termination of this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
by accepting the benefits of the Indenture that such Noteholder or Note Owner
will not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness secured by the
Trust Estate. Each Noteholder, by its acceptance of a Note (and each Note Owner
by its acceptance of a beneficial interest in a Note), will be deemed to agree
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the
consent of all Noteholders adversely affected) the Issuer and the Indenture
Trustee to enter into one or more supplemental indentures without the consent of
the Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of the Outstanding Amount of the Controlling Note Class, on behalf
of all Noteholders, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this Note (or any
one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
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THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE 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.
82
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: ___________________, 200_
By: */____________________________
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.
83
EXHIBIT A-3
FORM OF CLASS A-3 NOTE
REGISTERED
$[____________________]
No. R-1 CUSIP NO. [___________]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
XXXXX FARGO AUTO TRUST 2001-A
[_____]% CLASS A-3 ASSET BACKED NOTES
Xxxxx Fargo Auto Trust 2001-A, a common law trust existing
under the laws of the State of New York (herein referred to as the "Issuer"),
for value received, hereby promises to pay to CEDE & CO., or registered assigns,
the principal sum of [__________________________] DOLLARS ($[_____________])
payable on each Payment Date in an amount equal to the aggregate amount, if any,
payable to Noteholders 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 ______________ __, 2001 (as
from time to time amended, supplemented or otherwise modified and in effect, the
"Indenture"), between the Issuer and [_________________], a [_____________], 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 [______________], 200_ Payment Date (the "Class A-3 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
84
all payments of principal made on the preceding 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 fifteenth 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 fifteenth
day of the following calendar month. Interest will be computed on the basis of a
360-day year of twelve 30-day months. Such principal of and interest on this
Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed pursuant to Section 2.13 of the Indenture by the Authenticating Agent
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.]
Exhibit A-3-
85
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: ______________ __, 2001
XXXXX FARGO AUTO TRUST 2001-A
By: Wilmington Trust Company,
as Owner Trustee of Xxxxx Fargo
Auto Trust 2001-A
By:_________________________________
Authorized Officer
Exhibit A-3-
86
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Notes designated above and referred to
in the within-mentioned Indenture.
Date: ______________ __, 2001
[__________________________], not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
Exhibit A-3-
87
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its [_____]% Class A-3 Asset Backed Notes (the "Class A-3
Notes") which, together with the Issuer's [_____]% Class A-1 Asset Backed Notes
(the "Class A-1 Notes"), [_____]% Class A-2 Asset Backed Notes (the "Class A-2
Notes"), [_____]% Class A-4 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-4 Notes,
the "Class A Notes"), [_____]% Class B Asset Backed Notes (the "Class B Notes")
and [_____]% Class C Asset Backed Notes (the "Class C Notes" and, together with
the Class A Notes and the Class B Notes, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Notes
are subject to all terms of the Indenture.
The Class A-3 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture. The Class A-3 Notes are subordinated in right of payment to the Class
A-1 Notes and the Class A-2 Notes and are senior in right of payment to the
Class A-4 Notes, the Class B Notes and the Class C Notes, each as and to the
extent 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
fifteenth day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing [_____________], 2001. All principal
payments on the Class A-3 Notes shall be made pro rata to the Class A-3
Noteholders entitled hereto.
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, if an Event of Default should occur
and be continuing, then and in every such case the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Notes of the Controlling Note Class may declare all the Notes to be
immediately due and payable, by a notice in writing to Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class A-3 Notes will be made in accordance with the
provisions of the Indenture.
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 paid to the Person in whose name such Note (or
one or more Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, 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 will be made by wire
transfer in immediately available funds to the account designated by such
nominee
88
and except for the final installment of principal payable with respect to such
Note on a Payment Date or on the Final Scheduled Payment Date for such Class
(and except for the Redemption Price for any Note called for redemption pursuant
to Section 10.1(a) of the Indenture) 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 of the Indenture. Notwithstanding the foregoing, the
entire unpaid principal amount of the 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 Indenture Trustee or the Holders of the Notes representing
not less than a majority of the Outstanding Amount of the Notes of the
Controlling Note Class have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture and, in such event, all
principal payments on each class of Notes shall be made pro rata to the
Noteholders of such class entitled thereto. 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 Issuer expects that the final
installment of principal of and interest on such Note will be paid. Such notice
shall be mailed or transmitted by facsimile prior to such final Payment Date and
shall specify that such final installment will 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 redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class A-3 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B
Notes and the Class C Notes may be redeemed, in whole but not in part, in the
manner and to the extent described in the Indenture and the Sale and Servicing
Agreement.
The transfer of this Note is subject to the restrictions on
transfer specified on the face hereof and to the other limitations set forth in
the Indenture. Subject to the satisfaction of such restrictions and limitations,
the transfer of this Note may be registered on the Note Register upon surrender
of this Note for registration of transfer at the office or agency designated by
the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in
89
its individual capacity, (ii) any owner of a beneficial interest in the Issuer,
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, 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.
In furtherance of and not in derogation of the foregoing
paragraph, to the extent Seller enters into other securitization transactions,
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 and agrees that it
shall have no right, title or interest in or to any assets or interests therein
of Seller (other than the Trust Property, Demand Note and Reserve Account
relating to this transaction) conveyed or purported to be conveyed by Seller to
another securitization trust or other Person or Persons in connection therewith
(whether by way of a sale, capital contribution or by virtue of the granting of
a lien) ("Other Assets"). To the extent that, notwithstanding the agreements and
provisions contained in the preceding sentences of this paragraph, a Noteholder
or Note Owner either (i) asserts an interest or claim to, or benefit from, Other
Assets, whether asserted against or through Seller or any other Person owned by
Seller, or (ii) is deemed to have any such interest, claim or benefit in or from
Other Assets, whether by operation of law, legal process, pursuant to applicable
provisions of insolvency laws or otherwise (including by virtue of Section
1111(b) of the Federal Bankruptcy Code or any successor provision having similar
effect under the Bankruptcy Code), and whether deemed asserted against or
through Seller or any other Person owned by Seller, then 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, further acknowledges and agrees that any such interest,
claim or benefit in or from Other Assets is and shall be expressly subordinated
to the indefeasible payment in full of all obligations and liabilities of Seller
which, under the terms of the relevant documents relating to the securitization
of such Other Assets, are entitled to be paid from, entitled to the benefits of,
or otherwise secured by such Other Assets (whether or not any such entitlement
or security interest is legally perfected or otherwise entitled to priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against Seller or any other Person owned by Seller), including
the payment of post-petition interest on such other obligations and liabilities.
This subordination agreement shall be deemed a subordination agreement within
the meaning of Section 510(a) of the Bankruptcy Code. 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, further acknowledges and agrees that no adequate remedy at
law exists for a breach of this paragraph and the terms of this paragraph may be
enforced by an
90
action for specific performance. The provisions of this paragraph shall be for
the third party benefit of those entitled to rely thereon and shall survive the
termination of this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
by accepting the benefits of the Indenture that such Noteholder or Note Owner
will not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness secured by the
Trust Estate. Each Noteholder, by its acceptance of a Note (and each Note Owner
by its acceptance of a beneficial interest in a Note), will be deemed to agree
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the
consent of all Noteholders adversely affected) the Issuer and the Indenture
Trustee to enter into one or more Supplemental indentures without the consent of
the Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of the Outstanding Amount of the Controlling Note Class, on behalf
of all Noteholders, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this Note (or any
one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
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THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE 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.
92
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: ___________________, 200_
By: */______________________________
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.
93
EXHIBIT A-4
FORM OF CLASS A - 4 NOTE
REGISTERED
$[____________]
No. R-1 CUSIP NO. [____________]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
XXXXX FARGO AUTO TRUST 2001-A
[_____]% CLASS A-4 ASSET BACKED NOTES
Xxxxx Fargo Auto Trust 2001-A, a common law trust existing under the
laws of the State of New York (herein referred to as the "Issuer"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of [____________] DOLLARS ($[____________]) payable on each
Payment Date in an amount equal to the aggregate amount, if any, payable to
Noteholders 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 ______________ __, 2001 (as from time
to time amended, supplemented or otherwise modified and in effect, the
"Indenture"), between the Issuer and [____________], a [____________], 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 [____________], 200_ Payment Date (the "Class A-4 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
94
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),
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
fifteenth 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 fifteenth day of the following calendar month. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. Such principal of and
interest on this Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed
pursuant to Section 2.13 of the Indenture by the Authenticating Agent 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.]
95
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: [____________]
XXXXX FARGO AUTO TRUST 2001-A
By: Wilmington Trust Company,
as Owner Trustee of Xxxxx Fargo
Auto Trust 2001-A
By:_______________________________
Authorized Officer
96
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Notes designated above and referred to
in the within-mentioned Indenture.
Date: ______________ __, 2001
[_______________________], not in its
individual capacity but solely as
Authenticating Agent
By:_________________________________
Authorized Officer
97
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its [_____]% Class A-4 Asset Backed Notes (the "Class A-4
Notes") which, together with the Issuer's [_____]% Class A-1 Asset Backed Notes
(the "Class A-1 Notes"), [_____]% Class A-2 Asset Backed Notes (the "Class A-2
Notes"), [_____]% Class A-3 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 Asset Backed Notes (the "Class B Notes")
and [_____]% Class C Asset Backed Notes (the "Class C Notes" and, together with
the Class A Notes and the Class B Notes, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Notes
are subject to all terms of the Indenture.
The Class A-4 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture. The Class A-4 Notes are subordinated in right of payment to the Class
A-1 Notes, the Class A-2 Notes and the Class A-3 Notes and are senior in right
of payment to the Class B Notes and the Class C Notes, each as and to the extent
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
fifteenth day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing _____________, 2001. All principal payments
on the Class A-4 Notes shall be made pro rata to the Class A-4 Noteholders
entitled thereto.
As described on the face hereof, the entire unpaid principal
amount of this Note shall be due and payable on the Class A-4 Final Scheduled
Payment Date. Notwithstanding the foregoing, if an Event of Default should occur
and be continuing, then and in every such case the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Notes of the Controlling Note Class may declare all the Notes to be
immediately due and payable, by a notice in writing to Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class A-4 Notes will be made in accordance with the
provisions of the Indenture.
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 paid to the Person in whose name such Note (or
one or more Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, 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 will be made by wire
transfer in immediately available funds to the account designated by such
nominee
98
and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) 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 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the 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 Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Notes of the Controlling Note Class have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2 of the Indenture and, in
such event, all principal payments on each class of Notes shall be made pro rata
to the Noteholders of such class entitled thereto. 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 Issuer expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such final Payment
Date and shall specify that such final installment will 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 redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class A-4 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B
Notes and the Class C Notes may be redeemed, in whole but not in part, in the
manner and to the extent described in the Indenture and the Sale and Servicing
Agreement.
The transfer of this Note is subject to the restrictions on
transfer specified on the face hereof and to the other limitations set forth in
the Indenture. Subject to the satisfaction of such restrictions and limitations,
the transfer of this Note may be registered on the Note Register upon surrender
of this Note for registration of transfer at the office or agency designated by
the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or,
in the case of a Note Owner, a beneficial interest in a Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in
99
its individual capacity, (ii) any owner of a beneficial interest in the
Issuer, (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, or (iv) any holder of a beneficial interest in the Issuer, the Owner
Trustee or the Indenture Trustee or of any successor or assign of the Indenture
Trustee or the Owner Trustee, each in its individual capacity, except as any
such Person may have expressly agreed and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity. Each Noteholder or Note Owner, by its acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, 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.
In furtherance of and not in derogation of the foregoing
paragraph, to the extent Seller enters into other securitization transactions,
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 and agrees that it
shall have no right, title or interest in or to any assets or interests therein
of Seller (other than the Trust Property, Demand Note and Reserve Account
relating to this transaction) conveyed or purported to be conveyed by Seller to
another securitization trust or other Person or Persons in connection therewith
(whether by way of a sale, capital contribution or by virtue of the granting of
a lien) ("Other Assets"). To the extent that, notwithstanding the agreements and
provisions contained in the preceding sentences of this paragraph, a Noteholder
or Note Owner either (i) asserts an interest or claim to, or benefit from, Other
Assets, whether asserted against or through Seller or any other Person owned by
Seller, or (ii) is deemed to have any such interest, claim or benefit in or from
Other Assets, whether by operation of law, legal process, pursuant to applicable
provisions of insolvency laws or otherwise (including by virtue of Section
1111(b) of the Federal Bankruptcy Code or any successor provision having similar
effect under the Bankruptcy Code), and whether deemed asserted against or
through Seller or any other Person owned by Seller, then 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, further acknowledges and agrees that any such interest,
claim or benefit in or from Other Assets is and shall be expressly subordinated
to the indefeasible payment in full of all obligations and liabilities of Seller
which, under the terms of the relevant documents relating to the securitization
of such Other Assets, are entitled to be paid from, entitled to the benefits of,
or otherwise secured by such Other Assets (whether or not any such entitlement
or security interest is legally perfected or otherwise entitled to priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against Seller or any other Person owned by Seller), including
the payment of post-petition interest on such other obligations and liabilities.
This subordination agreement shall be deemed a subordination agreement within
the meaning of Section 510(a) of the Bankruptcy Code. 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, further acknowledges and agrees that no adequate remedy at
law exists for a breach of this paragraph and the terms of this paragraph may be
enforced by an
100
action for specific performance. The provisions of this paragraph shall be for
the third party benefit of those entitled to rely thereon and shall survive the
termination of this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in
the case of a Note Owner, a beneficial interest in a Note, covenants and agrees
by accepting the benefits of the Indenture that such Noteholder or Note Owner
will not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness secured by the
Trust Estate. Each Noteholder, by its acceptance of a Note (and each Note Owner
by its acceptance of a beneficial interest in a Note), will be deemed to agree
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the
consent of all Noteholders adversely affected) the Issuer and the Indenture
Trustee to enter into one or more supplemental indentures without the consent of
the Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of Outstanding Amount of the Controlling Note Class, on behalf of
all Noteholders, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this Note (or any
one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
101
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, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE 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.
102
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: ___________________, 200__
By: */____________________________
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.
103
EXHIBIT B
FORM OF CLASS B NOTE
REGISTERED
$[____________]
No. R-1 CUSIP NO. [____________]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
XXXXX FARGO AUTO TRUST 2001-A
[_____]% CLASS B ASSET BACKED NOTES
Xxxxx Fargo Auto Trust 2001-A, a common law trust existing under the
laws of the State of New York (herein referred to as the "Issuer"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of [____________] DOLLARS ($[____________]) payable on each
Payment Date in an amount equal to the aggregate amount, if any, payable to
Noteholders 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 ______________ __, 2001 (as from time
to time amended, supplemented or otherwise modified and in effect, the
"Indenture"), between the Issuer and [____________], a [____________], 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 [____________], 2000_ Payment Date (the "Class B Final
Scheduled Payment Date") and the Redemption Date, if any, pursuant to Section
10.1(a) of the Indenture. Capitalized terms used but not defined herein are
defined in Article I of the Indenture, which also contains rules as to
construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each 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
104
all payments of principal made on the preceding 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 fifteenth 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 fifteenth
day of the following calendar month. Interest will be computed on the basis of a
360-day year of twelve 30-day months. Such principal of and interest on this
Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed
pursuant to Section 2.13 of the Indenture by the Authenticating Agent 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.]
Exhibit B-2
105
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: ______________ __, 2001
XXXXX FARGO AUTO TRUST 2001-A
By: Wilmington Trust Company,
as Owner Trustee of Xxxxx Fargo
Auto Trust 2001-A
By:_________________________________
Authorized Officer
Exhibit B-3
106
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes designated above and referred to in
the within-mentioned Indenture.
Date: ______________ __, 2001
[____________________________], not
in its individual capacity but
solely as Authenticating Agent
By:_________________________________
Authorized Officer
107
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its [_____]% Class B Asset Backed Notes (the "Class B Notes")
which, together with the Issuer's [_____]% Class A-1 Asset Backed Notes (the
"Class A-1 Notes"), [_____]% Class A-2 Asset Backed Notes (the "Class A-2
Notes"), [_____]% Class A-3 Asset Backed Notes (the "Class A-3 Notes"), [_____]%
Class A-4 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"),
and [_____]% Class C Asset Backed Notes (the "Class C Notes" and, together with
the Class A Notes and the Class B Notes, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Notes
are subject to all terms of the Indenture.
The Class B Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
B Notes are subordinated in right of payment to the Class A Notes and are senior
in right of payment to the Class C Notes, each as and to the extent 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 fifteenth day
of each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing _____________ 2001. All principal payments on the Class
B Notes shall be made pro rata to the Class B Noteholders entitled thereto.
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 or the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. Notwithstanding the foregoing, if an Event of Default should occur
and be continuing, then and in every such case the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Notes of the Controlling Note Class may declare all the Notes to be
immediately due and payable, by a notice in writing to Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class B Notes will be made in accordance with the provisions
of the Indenture.
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 paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed first-
class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, 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 will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment
108
Date or on the Final Scheduled Payment Date for such Class (and except for the
Redemption Price for any Note called for redemption pursuant to Section 10.1(a)
of the Indenture) 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 of the Indenture. Notwithstanding the foregoing, the entire
unpaid principal amount of the 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 Indenture Trustee or the Holders of the Notes representing not
less than a majority of the Outstanding Amount of the Notes of the Controlling
Note Class have declared the Notes to be immediately due and payable in the
manner provided in Section 5.2 of the Indenture and, in such event, all
principal payments on each class of Notes shall be made pro rata to the
Noteholders of such class entitled thereto. 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 Issuer expects that the final
installment of principal of and interest on such Note will be paid. Such notice
shall be mailed or transmitted by facsimile prior to such final Payment Date and
shall specify that such final installment will 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 redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class B Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes and
the Class C Notes may be redeemed, in whole but not in part, in the manner and
to the extent described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer, (iii) any partner,
109
owner, beneficiary, agent, officer, director or employee of the Indenture
Trustee or the Owner Trustee, each in its individual capacity, or (iv) any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, 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.
In furtherance of and not in derogation of the foregoing paragraph, to
the extent Seller enters into other securitization transactions, 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 and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property, Demand Note and Reserve Account relating to this
transaction) conveyed or purported to be conveyed by Seller to another
securitization trust or other Person or Persons in connection therewith (whether
by way of a sale, capital contribution or by virtue of the granting of a lien)
("Other Assets"). To the extent that, notwithstanding the agreements and
provisions contained in the preceding sentences of this paragraph, a Noteholder
or Note Owner either (i) asserts an interest or claim to, or benefit from, Other
Assets, whether asserted against or through Seller or any other Person owned by
Seller, or (ii) is deemed to have any such interest, claim or benefit in or from
Other Assets, whether by operation of law, legal process, pursuant to applicable
provisions of insolvency laws or otherwise (including by virtue of Section
1111(b) of the Federal Bankruptcy Code or any successor provision having similar
effect under the Bankruptcy Code), and whether deemed asserted against or
through Seller or any other Person owned by Seller, then 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, further acknowledges and agrees that any such interest,
claim or benefit in or from Other Assets is and shall be expressly subordinated
to the indefeasible payment in full of all obligations and liabilities of Seller
which, under the terms of the relevant documents relating to the securitization
of such Other Assets, are entitled to be paid from, entitled to the benefits of,
or otherwise secured by such Other Assets (whether or not any such entitlement
or security interest is legally perfected or otherwise entitled to priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against Seller or any other Person owned by Seller), including
the payment of post- petition interest on such other obligations and
liabilities. This subordination agreement shall be deemed a subordination
agreement within the meaning of Section 510(a) of the Bankruptcy Code. 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, further acknowledges and agrees that no
adequate remedy at law exists for a breach of this paragraph and the terms of
this paragraph may be enforced by an action for specific performance. The
provisions of this paragraph shall be for the third party benefit of those
entitled to rely thereon and shall survive the termination of this Agreement.
110
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Noteholder or Note Owner will
not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, and franchise tax
purposes, the Notes will qualify as indebtedness secured by the Trust Estate.
Each Noteholder, by its acceptance of a Note (and each Note Owner by its
acceptance of a beneficial interest in a Note), will be deemed to agree to treat
the Notes for federal, state and local income, single business and franchise tax
purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of
all Noteholders adversely affected) the Issuer and the Indenture Trustee to
enter into one or more supplemental indentures without the consent of the
Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of the Outstanding Amount of the Controlling Note Class, on behalf
of all Noteholders, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this Note (or any
one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
111
INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE 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.
112
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: ___________________, 200_
By: */____________________________
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.
113
EXHIBIT C
FORM OF CLASS C NOTE
REGISTERED
$[____________]
No. R-1 SIP NO. [____________]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
XXXXX FARGO AUTO TRUST 2001-A
[_____]% CLASS C ASSET BACKED NOTES
Xxxxx Fargo Auto Trust 2001-A, a common law trust existing under the
laws of the State of New York (herein referred to as the "Issuer"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of [____________] DOLLARS ($[____________]) payable on each
Payment Date in an amount equal to the aggregate amount, if any, payable to
Noteholders 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 ______________ __, 2001 (as from time
to time amended, supplemented or otherwise modified and in effect, the
"Indenture"), between the Issuer and [____________], a [____________], 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 [____________], 200_ Payment Date (the "Class C Final
Scheduled Payment Date") and the Redemption Date, if any, pursuant to Section
10.1(a) of the Indenture. Capitalized terms used but not defined herein are
defined in Article I of the Indenture, which also contains rules as to
construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each 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), subject to certain limitations
114
contained in Section 3.1 of the Indenture. Interest on this Note will accrue for
each Payment Date from and including the fifteenth 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 fifteenth day of the following
calendar month. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. Such principal of and interest on this Note shall be paid
in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed
pursuant to Section 2.13 of the Indenture by the Authenticating Agent 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.]
Exhibit C-2
115
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: [____________]
XXXXX FARGO AUTO TRUST 2001-A
By: Wilmington Trust Company,
as Owner Trustee of Xxxxx Fargo
Auto Trust 2001-A
By:_________________________________
Authorized Officer
Exhibit C-3
116
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Notes designated above and referred to in
the within-mentioned Indenture.
Date: ______________ __, 2001
[___________________________], not
in its individual capacity but
solely as Authenticating Agent
By:_________________________________
Authorized Officer
117
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its [_____]% Class C Asset Backed Notes (the "Class C Notes")
which, together with the Issuer's [_____]% Class A-1 Asset Backed Notes (the
"Class A-1 Notes"), [_____]% Class A-2 Asset Backed Notes (the "Class A-2
Notes"), [_____]% Class A-3 Asset Backed Notes (the "Class A-3 Notes"), [_____]%
Class A-4 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") and
[_____]% Class B Asset Backed Notes (the "Class B Notes" and, together with the
Class A 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.
The Class C Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
C Notes are subordinated in right of payment to the Class A Notes and the Class
B Notes as and to the extent 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 fifteenth day
of each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing _____________, 2001. All principal payments on the
Class C Notes shall be made pro rata to the Class C Noteholders entitled
thereto.
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 Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. Notwithstanding the foregoing, if an Event of Default should occur
and be continuing, then and in every such case the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Notes of the Controlling Note Class may declare all the Notes to be
immediately due and payable, by a notice in writing to Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class C Notes will be made in accordance with the provisions
of the Indenture.
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 paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed first-
class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, 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 will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment
118
Date or on the Final Scheduled Payment Date for such Class (and except for the
Redemption Price for any Note called for redemption pursuant to Section 10.1(a)
of the Indenture) 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 of the Indenture. Notwithstanding the foregoing, the entire
unpaid principal amount of the 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 Indenture Trustee or the Holders of the Notes representing not
less than a majority of the Outstanding Amount of the Notes of the Controlling
Note Class have declared the Notes to be immediately due and payable in the
manner provided in Section 5.2 of the Indenture and, in such event, all
principal payments on each class of Notes shall be made pro rata to the
Noteholders of such class entitled thereto. 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 Issuer expects that the final
installment of principal of and interest on such Note will be paid. Such notice
shall be mailed or transmitted by facsimile prior to such final Payment Date and
shall specify that such final installment will 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 redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class C Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes and
the Class C Notes may be redeemed, in whole but not in part, in the manner and
to the extent described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer, (iii) any partner,
119
owner, beneficiary, agent, officer, director or employee of the Indenture
Trustee or the Owner Trustee, each in its individual capacity, or (iv) any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, 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.
In furtherance of and not in derogation of the foregoing paragraph, to
the extent Seller enters into other securitization transactions, 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 and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property, Demand Note and Reserve Account relating to this
transaction) conveyed or purported to be conveyed by Seller to another
securitization trust or other Person or Persons in connection therewith (whether
by way of a sale, capital contribution or by virtue of the granting of a lien)
("Other Assets"). To the extent that, notwithstanding the agreements and
provisions contained in the preceding sentences of this paragraph, a Noteholder
or Note Owner either (i) asserts an interest or claim to, or benefit from, Other
Assets, whether asserted against or through Seller or any other Person owned by
Seller, or (ii) is deemed to have any such interest, claim or benefit in or from
Other Assets, whether by operation of law, legal process, pursuant to applicable
provisions of insolvency laws or otherwise (including by virtue of Section
1111(b) of the Federal Bankruptcy Code or any successor provision having similar
effect under the Bankruptcy Code), and whether deemed asserted against or
through Seller or any other Person owned by Seller, then 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, further acknowledges and agrees that any such interest,
claim or benefit in or from Other Assets is and shall be expressly subordinated
to the indefeasible payment in full of all obligations and liabilities of Seller
which, under the terms of the relevant documents relating to the securitization
of such Other Assets, are entitled to be paid from, entitled to the benefits of,
or otherwise secured by such Other Assets (whether or not any such entitlement
or security interest is legally perfected or otherwise entitled to priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against Seller or any other Person owned by Seller), including
the payment of post- petition interest on such other obligations and
liabilities. This subordination agreement shall be deemed a subordination
agreement within the meaning of Section 510(a) of the Bankruptcy Code. 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, further acknowledges and agrees that no
adequate remedy at law exists for a breach of this paragraph and the terms of
this paragraph may be enforced by an action for specific performance. The
provisions of this paragraph shall be for the third party benefit of those
entitled to rely thereon and shall survive the termination of this Agreement.
120
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Noteholder or Note Owner will
not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, and franchise tax
purposes, the Notes will qualify as indebtedness secured by the Trust Estate.
Each Noteholder, by its acceptance of a Note (and each Note Owner by its
acceptance of a beneficial interest in a Note), will be deemed to agree to treat
the Notes for federal, state and local income, single business and franchise tax
purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of
all Noteholders adversely affected) the Issuer and the Indenture Trustee to
enter into one or more supplemental indentures without the consent of the
Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of the Outstanding Amount of the Controlling Note Class, on behalf
of all Noteholders, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Noteholder of this Note (or any
one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
121
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW, BUT OTHERWISE 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.
122
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: ___________________, 200_
By: */____________________________
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.
