EXHIBIT 99.4
EXECUTION COPY
INDENTURE
between
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1,
as Issuer
and
Xxxxx Fargo Bank, National Association,
as Indenture Trustee
Dated as of March 31, 2004
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions........................................................................................2
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.................................................10
ARTICLE II
THE NOTES
SECTION 2.01. Form..............................................................................................11
SECTION 2.02. Execution, Authentication and Delivery............................................................11
SECTION 2.03. Temporary Notes...................................................................................12
SECTION 2.04. Registration; Registration of Transfer and Exchange...............................................12
SECTION 2.05. [Reserved]........................................................................................15
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Notes........................................................15
SECTION 2.07. Persons Deemed Note Owners........................................................................16
SECTION 2.08. Payment of Principal and Interest; Defaulted Interest.............................................16
SECTION 2.09. Cancellation......................................................................................17
SECTION 2.10. Book-Entry Notes..................................................................................17
SECTION 2.11. Notices to Clearing Agency........................................................................18
SECTION 2.12. Definitive Notes..................................................................................18
SECTION 2.13. Tax Treatment.....................................................................................18
ARTICLE III
COVENANTS
SECTION 3.01. Payment of Principal and Interest.................................................................19
SECTION 3.02. Maintenance of Office or Agency...................................................................19
SECTION 3.03. Money for Payments To Be Held in Trust............................................................19
SECTION 3.04. Existence.........................................................................................21
SECTION 3.05. Protection of Trust Estate........................................................................21
SECTION 3.06. Opinions as to Trust Estate.......................................................................21
SECTION 3.07. Performance of Obligations; Servicing of Receivables..............................................22
SECTION 3.08. Negative Covenants................................................................................23
SECTION 3.09. Annual Statement as to Compliance.................................................................24
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms...............................................24
SECTION 3.11. Successor or Transferee...........................................................................26
SECTION 3.12. No Other Business.................................................................................26
SECTION 3.13. No Borrowing......................................................................................26
SECTION 3.14. Servicer's Obligations............................................................................26
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SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities.................................................26
SECTION 3.16. Capital Expenditures..............................................................................27
SECTION 3.17. Restricted Payments...............................................................................27
SECTION 3.18. Notice of Events of Default.......................................................................27
SECTION 3.19. Further Instruments and Acts......................................................................27
SECTION 3.20. Perfection Representation.........................................................................27
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture...........................................................27
SECTION 4.02. Application of Trust Money........................................................................29
SECTION 4.03. Repayment of Moneys Held by Paying Agent..........................................................29
SECTION 4.04. Release of Collateral.............................................................................29
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default.................................................................................29
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment................................................30
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee; Authority of
the Controlling Party.............................................................................31
SECTION 5.04. Remedies; Priorities..............................................................................33
SECTION 5.05. Optional Preservation of the Receivables..........................................................36
SECTION 5.06. Limitation of Suits...............................................................................36
SECTION 5.07. Unconditional Rights of Noteholders To Receive Principal and Interest.............................37
SECTION 5.08. Restoration of Rights and Remedies................................................................37
SECTION 5.09. Rights and Remedies Cumulative....................................................................37
SECTION 5.10. Delay or Omission Not a Waiver....................................................................37
SECTION 5.11. Control by Controlling Class......................................................................37
SECTION 5.12. Waiver of Past Defaults...........................................................................38
SECTION 5.13. Undertaking for Costs.............................................................................38
SECTION 5.14. Waiver of Stay or Extension Laws..................................................................38
SECTION 5.15. Action on Notes...................................................................................39
SECTION 5.16. Performance and Enforcement of Certain Obligations................................................39
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.01. Duties of Indenture Trustee.......................................................................40
SECTION 6.02. Rights of Indenture Trustee.......................................................................42
SECTION 6.03. Individual Rights of Indenture Trustee............................................................43
SECTION 6.04. Disclaimer of Indenture Trustee...................................................................43
SECTION 6.05. Notice of Defaults................................................................................43
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SECTION 6.06. Reports by Indenture Trustee to Holders...........................................................43
SECTION 6.07. Compensation and Indemnity........................................................................43
SECTION 6.08. Replacement of Indenture Trustee..................................................................44
SECTION 6.09. Successor Indenture Trustee by Merger.............................................................45
SECTION 6.10. Appointment of Co-Indenture Trustee or Separate Indenture Trustee.................................45
SECTION 6.11. Eligibility; Disqualification.....................................................................47
SECTION 6.12. Preferential Collection of Claims Against Issuer..................................................47
SECTION 6.13. Waiver of Setoffs.................................................................................48
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01. Note Registrar To Furnish Indenture Trustee and Owner Trustee Names and Addresses of
Noteholders.......................................................................................48
SECTION 7.02. Preservation of Information; Communications to Noteholders........................................48
SECTION 7.03. Reports by Issuer.................................................................................48
SECTION 7.04. Reports by Indenture Trustee......................................................................49
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.01. Collection of Money...............................................................................49
SECTION 8.02. Trust Accounts....................................................................................49
SECTION 8.03. General Provisions Regarding Accounts.............................................................51
SECTION 8.04. Release of Trust Estate...........................................................................51
SECTION 8.05. Opinion of Counsel................................................................................52
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Noteholders............................................52
SECTION 9.02. Supplemental Indentures with Consent of Noteholders...............................................53
SECTION 9.03. Execution of Supplemental Indentures..............................................................55
SECTION 9.04. Effect of Supplemental Indenture..................................................................55
SECTION 9.05. Reference in Notes to Supplemental Indentures.....................................................55
SECTION 9.06. Conformity with Trust Indenture Act...............................................................56
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.01. Redemption.......................................................................................56
SECTION 10.02. Form of Redemption Notice........................................................................56
SECTION 10.03. Notes Payable on Redemption Date.................................................................57
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Compliance Certificates and Opinions, etc........................................................57
SECTION 11.02. Form of Documents Delivered to Indenture Trustee.................................................59
SECTION 11.03. Acts of Noteholders..............................................................................59
SECTION 11.04. Notices, etc., to Indenture Trustee, Issuer and Rating Agencies..................................60
SECTION 11.05. Notices to Noteholders; Waiver...................................................................60
SECTION 11.06. Effect of Headings and Table of Contents.........................................................61
SECTION 11.07. Successors and Assigns...........................................................................61
SECTION 11.08. Separability.....................................................................................61
SECTION 11.09. Benefits of Indenture............................................................................61
SECTION 11.10. Legal Holidays...................................................................................61
SECTION 11.11. Governing Law....................................................................................62
SECTION 11.12. Counterparts.....................................................................................62
SECTION 11.13. Recording of Indenture...........................................................................62
SECTION 11.14. Trust Obligation.................................................................................62
SECTION 11.15. No Petition......................................................................................62
SECTION 11.16. Inspection.......................................................................................62
SECTION 11.17. Conflict with Trust Indenture Act................................................................63
SECTION 11.18. Limitation of Liability..........................................................................63
SCHEDULE A Schedule of Receivables
SCHEDULE B Perfection Representation
EXHIBIT A-1 Form of Class A-1 Note
EXHIBIT A-2 Form of Class A-2 Note
EXHIBIT A-3 Form of Class A-3 Note
EXHIBIT A-4 Form of Class A-4 Note
EXHIBIT B Form of Class B Note
EXHIBIT C Form of Class C Note
EXHIBIT D Form of Class D Note
EXHIBIT E Form of Investment Letter
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THIS INDENTURE, dated as of March 31, 2004, is between XXXXXX XXXXXXX
AUTO LOAN TRUST 2004-HB1, a Delaware statutory trust (the "Issuer") and XXXXX
FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee (the "Indenture
Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Issuer's 1.33% Asset
Backed Notes, Class A-1 (the "Class A-1 Notes"), 1.92% Asset Backed Notes,
Class A-2 (the "Class A-2 Notes"), 2.64% Asset Backed Notes, Class A-3 (the
"Class A-3 Notes"), 3.33% Asset Backed Notes, Class A-4 (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"), 3.05% Asset Backed Notes, Class B (the "Class B
Notes"), 2.88% Asset Backed Notes, Class C (the "Class C Notes") and 5.50%
Asset Backed Notes, Class D (the "Class D Notes" and, together with the Class
A Notes, the Class B Notes and the Class C Notes, the "Notes"):
GRANTING CLAUSE
(a) The Issuer hereby Grants to the Indenture Trustee at the Closing
Date, as Indenture Trustee for the benefit of the Holders of the Notes, all of
the Issuer's right, title and interest in, to and under each of the
Receivables listed on Schedule A, including:
(i) all interest, principal, and any other amounts received on or
with respect to each of the Receivables after the Cut-Off Date;
(ii) the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and any other interest of the Issuer
in such Financed Vehicles;
(iii) all other security interests or other property interests
created by or constituting each Receivable and any other property that
shall have secured the Receivables and that shall have been acquired by
or on behalf of the Issuer;
(iv) all of the Issuer's rights with respect to each Receivable and
the documentation relating to the Receivables, including, without
limitation, all rights under the VSI Policy with respect to such
Receivable and the contents of each Receivable File, including, without
limitation, all of the Issuer's enforcement and other rights under the
UCC and other Applicable Law;
(v) rebates of premiums on insurance policies and all other items
financed as part of the Receivables in effect as of the Cut-Off Date,
including but not limited to, service warranties;
(vi) all Servicing Rights with respect to, and all proceeds of and
rights to enforce, any of the foregoing, including, without limitation,
any Insurance Proceeds and Liquidation Proceeds;
(vii) all of the Issuer's rights and benefits under the Assignment,
Assumption and Recognition Agreement, including the representations and
warranties and the cure
and repurchase obligations of HNB under the Assignment, Assumption and
Recognition Agreement;
(viii) all of the Issuer's rights and benefits (but not its
obligations) under the Sale and Servicing Agreement, including the
representations and warranties and the cure and repurchase obligations of
HNB set forth therein (including the Issuer's right to cause HNB to
repurchase Receivables from the Issuer under the circumstances described
therein);
(ix) all funds on deposit from time to time in the Trust Accounts
and the Certificate Distribution Account and in all investments therein
and proceeds thereof (including all Investment Earnings thereon); and
(x) all present and future claims, demands, causes of action and
choses in action in respect of any or all of the foregoing and all
payments on or under and all proceeds of every kind and nature whatsoever
in respect of any or all of the foregoing, including all proceeds of the
conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind
and other forms of obligations and receivables, instruments and other
property that at any time constitute all or part of or are included in
the proceeds of any of the foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal
of and interest on, and any other amounts owing in respect of, the Notes,
equally and ratably without prejudice, priority or distinction, and to secure
compliance with the provisions of this Indenture, all as provided in this
Indenture. This Indenture is a security agreement within the meaning of the
UCC.
The 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 and the other Basic Documents to which the
Indenture Trustee is a party in accordance with the terms of this Indenture
and the other Basic Documents to which the Indenture Trustee is a party 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 1.01. Definitions.
(a) Definitions. Except as otherwise specified herein or as the context
may otherwise require, the following terms have the respective meanings set
forth below for all purposes of this Indenture. Terms not defined herein shall
have the meanings ascribed to them in the Sale and Servicing Agreement.
"Act" has the meaning specified in Section 11.03(a).
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"Affiliate" means, when used with reference to a specified Person, any
Person that (a) directly or indirectly controls or is controlled by or is
under common control with the specified Person, (b) is an officer of, partner
in or trustee of, or serves in a similar capacity with respect to, the
specified Person or of which the specified Person is an officer, partner or
trustee, or with respect to which the specified Person serves in a similar
capacity or (c) directly or indirectly is the beneficial owner of 10% or more
of any class of equity securities of the specified Person or of which the
specified Person is directly or indirectly the owner of 10% or more of any
class of equity securities.
"Authorized Officer" means, with respect to the Issuer, any officer of
the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer and who is identified on the list of Authorized
Officers delivered by the Owner Trustee to the Indenture Trustee on the
Closing Date (as such list may be modified or supplemented from time to time
thereafter).
"Book-Entry Note" means a beneficial interest in the Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.10.
"Business Day" means any day other than (a) a Saturday or Sunday or (b) a
day on which banking or savings and loan institutions in the States of New
York or Delaware, the jurisdiction of the principal place of business of the
Servicer or the city in which the Corporate Trust Office of the Indenture
Trustee is located, are obligated or required by law or executive order to be
closed.
"Class" means each of the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes and the
Class D Notes.
"Class A Note" means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note
or a Class A-4 Note, as the context may require.
"Class A-1 Notes" means the 1.33% Asset Backed Notes, Class A-1,
substantially in the form of Exhibit A-1.
"Class A-1 Rate" means a 1.33% per annum computed on the basis of a
360-day year consisting of twelve 30-day months.
"Class A-2 Notes" means the 1.92% Asset Backed Notes, Class A-2,
substantially in the form of Exhibit A-2.
"Class A-2 Rate" means a 1.92% per annum computed on the basis of a
360-day year consisting of twelve 30-day months.
"Class A-3 Notes" means the 2.64% Asset Backed Notes, Class A-3,
substantially in the form of Exhibit A-3.
"Class A-3 Rate" means a 2.64% per annum computed on the basis of a
360-day year consisting of twelve 30-day months.
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"Class A-4 Notes" means the 3.33% Asset Backed Notes, Class A-4,
substantially in the form of Exhibit A-4.
"Class A-4 Rate" means a 3.33% per annum computed on the basis of a
360-day year consisting of twelve 30-day months.
"Class B Notes" means the 3.05% Asset Backed Notes, Class B,
substantially in the form of Exhibit B.
"Class B Rate" means 3.05% per annum, computed on the basis of a 360-day
year consisting of twelve 30-day months.
"Class C Notes" means the 2.88% Asset Backed Notes, Class C,
substantially in the form of Exhibit C.
"Class C Rate" means 2.88% per annum, computed on the basis of a 360-day
year consisting of twelve 30-day months.
"Class D Notes" means the 5.50% Asset Backed Notes, Class D,
substantially in the form of Exhibit D.
"Class D Rate" means 5.50% per annum, computed on the basis of a 360-day
year consisting of twelve 30-day months.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means May 14, 2004.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause of this
Indenture.
"Controlling Class" means (i) if the Class A Notes have not been paid in
full, the Class A Notes, (ii) if the Class A Notes have been paid in full and
Class B Notes remain Outstanding, the Class B Notes, (iii) if the Class A
Notes and the Class B Notes have been paid in full and Class C Notes remain
Outstanding, the Class C Notes, and (iv) if the Class A Notes, the Class B
Notes and the Class C Notes have been paid in full and Class D Notes remain
Outstanding, the Class D Notes.
"Controlling Party" means (i) if the Notes have not been paid in full,
the Indenture Trustee acting at the direction of at least a majority in
Outstanding Amount of the Noteholders of the Controlling Class and (ii) if the
Notes have been paid in full, the Owner
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Trustee acting at the direction of at least a majority of the percentage
interests in the Certificateholders.
"Corporate Trust Office" means, with respect to the Indenture Trustee,
the principal office of the Indenture Trustee at which at any particular time
its corporate trust business is administered, which office at the date of
execution of this Agreement is located at Xxxxx Fargo Bank, National
Association, Sixth and Marquette Avenue MAC, N9311-161, Xxxxxxxxxxx, XX 00000
(facsimile number (000) 000-0000); Attention: CTS/Asset Backed Securities
Administration, or at such other address as the Indenture Trustee may
designate from time to time by notice to the Noteholders and the Issuer, or
the principal corporate trust office of any successor Indenture Trustee at the
address designated by such successor Indenture Trustee by notice to the
Noteholders and the Issuer.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10.
"Depositor" means Xxxxxx Xxxxxxx ABS Capital II Inc.
"Event of Default" has the meaning specified in Section 5.01. "Exchange
Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, any Executive Vice President, any Senior Vice President, any Vice
President, the Secretary, the Controller or the Treasurer of such corporation;
and with respect to any partnership, any general partner thereof.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and xxxxx x xxxx upon and a
security interest in and a right of set-off against, deposit, set over and
confirm pursuant to this Indenture. A Grant of the Collateral or of any other
agreement or instrument shall include all rights, powers and options (but none
of the obligations) of the granting party thereunder, including the immediate
and continuing right to claim for, collect, receive and give receipt for
principal and interest payments in respect of the Collateral and all other
moneys payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights
and options, to bring Proceedings in the name of the granting party or
otherwise, and generally to do and receive anything that the granting party is
or may be entitled to do or receive thereunder or with respect thereto.
"Holder" or "Noteholder" means a Person in whose name a Note is
registered on the Note Register.
"Indenture Trustee" means Xxxxx Fargo Bank, National Association, a
national banking association, not in its individual capacity, but as Indenture
Trustee under this Indenture, or any successor Indenture Trustee under this
Indenture.
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"Independent" means, when used with respect to any specified Person, that
such Person (a) is in fact independent of the Issuer, any other obligor on the
Notes, the Depositor, the Seller and any Affiliate of any of the foregoing
Persons, (b) does not have any direct financial interest or any material
indirect financial interest in the Issuer, any such other obligor, the
Depositor, the Seller or any Affiliate of any of the foregoing Persons and (c)
is not connected with the Issuer, any such other obligor, the Depositor, the
Seller or any Affiliate of any of the foregoing Persons as an officer,
employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
"Independent Certificate" means a certificate or opinion to be delivered
to the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01, made by an
Independent appraiser or other expert appointed by an Issuer Order and
reasonably satisfactory to the Indenture Trustee in the exercise of reasonable
care, and such opinion or certificate shall state that the signer has read the
definition of "Independent" in this Indenture and that the signer is
Independent within the meaning thereof.
"Insurance Company General Account" has the meaning set forth in Section
V(e) of Prohibited Transaction Class Exemption 95-60
"Interest Rate" means the Class A-1 Rate, the Class A-2 Rate, the Class
A-3 Rate, the Class A-4 Rate, the Class B Rate, the Class C Rate or the Class
D Rate, as the context may require.
"Issuer" means Xxxxxx Xxxxxxx Auto Loan Trust 2004-HB1 until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
Notes.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee, as specified in this Indenture.
"Note" means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note, a
Class A-4 Note, a Class B Note, a Class C Note or a Class D Note, as the
context may require.
"Note Owner" means, with respect to a Book-Entry Note, the Person who is
the beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing
Agency).
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.04.
"Officer's Certificate" means a certificate signed by the Issuer, under
the circumstances described in, and otherwise complying with, the applicable
requirements of Section 11.01, and delivered to the Indenture Trustee, as
specified in this Indenture. Unless otherwise specified, any reference in this
Indenture to an Officer's Certificate shall be to an
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Officer's Certificate of the Issuer. The Indenture Trustee may rely on the
Owner Trustee's list of authorized officers delivered by the Owner Trustee to
the Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter) to confirm the authority of
signatories to execute documents on its behalf.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in this Indenture, be an employee
of or counsel to the Issuer and who shall be satisfactory to the Indenture
Trustee, and which opinion or opinions shall be addressed to the Indenture
Trustee, shall comply with any applicable requirements of Section 11.01 and
shall be in form and substance satisfactory to the Indenture Trustee.
"Outstanding" means, as of any date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or delivered
to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes
(provided, however, that if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
for such notice has been made, satisfactory to the Indenture Trustee);
and
(iii) Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee or the Note Registrar is presented
that any such Notes are held by a bona fide purchaser;
provided, however, that in determining whether the Holders of the
requisite Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under
any other Basic Document, Notes owned by the Issuer, any other obligor on
the Notes, the Seller or any Affiliate of any of the foregoing Persons
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Indenture Trustee or the Note Registrar shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes that a Responsible
Officer of the Indenture Trustee or the Note Registrar, as the case may
be, knows to be so owned shall be so disregarded. Notes so owned that
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee or the
Note Registrar, as the case may be, the pledgee's right so to act with
respect to such Notes and that the pledgee is not the Issuer, any other
obligor on the Notes, the Seller or any Affiliate of any of the foregoing
Persons.
"Outstanding Amount" means, as of any date of determination and as to any
Notes, the aggregate principal amount of such Notes Outstanding as of such
date of determination and, as of any date of determination and as to any
Certificates, the aggregate percentage interest of such Certificates
Outstanding as of such date of determination.
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"Owner Trustee" means Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, or any
successor Owner Trustee under the Trust Agreement.
"Paying Agent" means the Indenture Trustee or any other Person that meets
the eligibility standards for the Indenture Trustee specified in Section 6.11
and is authorized by the Issuer to make payments to and distributions from the
Collection Account, the Note Interest Distribution Account and the Principal
Distribution Account, including payments of principal of or interest on the
Notes on behalf of the Issuer. Initially, the Indenture Trustee shall be the
Paying Agent.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust, national
banking association, unincorporated organization or government or any agency
or political subdivision thereof or any other entity.
"Plan" means any (i) employee benefit plan (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
that is subject to Title I of ERISA, (ii) plan (as defined in section
4975(e)(1) of the Code)) that is subject to Section 4975 of the Code,
including individual retirement accounts or Xxxxx plans, or (iii) entity whose
underlying assets include "plan assets" (as determined under Department of
Labor Regulation ss.2510.3-101 or otherwise) by reason of investment in such
entity by a plan described in (i) or (ii), including, without limitation, as
applicable, an Insurance Company General Account.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced
by such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.06 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
"Qualifying SPE" has the meaning set forth in SFAS 140.
"Record Date" means, with respect to a Distribution Date or Redemption
Date, the day immediately preceding such Distribution Date or Redemption Date,
unless Definitive Notes are issued, in which case the Record Date with respect
to such Definitive Notes as to any Distribution Date shall be the last day of
the immediately preceding calendar month.
"Redemption Date" means, as the context requires, in the case of a
redemption of the Notes pursuant to Section 10.01, the Distribution Date
specified by the Servicer or the Issuer pursuant to Section 10.01.
"Redemption Price" means an amount equal to (x) the unpaid principal
amount of the Notes redeemed plus (y) accrued and unpaid interest thereon at
the applicable Interest Rate plus interest on any overdue interest at the
applicable Interest Rate (to the extent lawful) for each
8
Note being so redeemed to but excluding the Redemption Date, plus (z) any
amounts due to the Indenture Trustee or the Owner Trustee.
"Registered Holder" means the Person in whose name a Note is registered
on the Note Register on the applicable Record Date.
"Responsible Officer" means, with respect to the Indenture Trustee or the
Owner Trustee, as applicable, any officer within the Corporate Trust Office of
the Indenture Trustee or the Owner Trustee, including any Vice President,
Assistant Vice President, Assistant Treasurer, Assistant Secretary or any
other officer of the Indenture Trustee or the Owner Trustee customarily
performing functions with respect to corporate trust matters and having direct
responsibility for the administration of this Indenture and the other Basic
Documents and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject, in each case having direct
responsibility for the administration of the Basic Documents.
"Rule 144A" has the meaning set forth in Section 2.04.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of March 31, 2004, among the Issuer, the Depositor, the Seller, the
Servicer and the Indenture Trustee, as the same may be amended, supplemented
or otherwise modified from time to time.
"Schedule of Receivables" means the lists of Receivables set forth in
Schedule A (which Schedule may be in the form of microfiche or an electronic
file).
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" means Xxxxxx Xxxxxxx Asset Funding, Inc., in its capacity as
assignor under the Assignment, Assumption and Recognition Agreement and as
seller under the Sale and Servicing Agreement, and its successors in interest.
"Servicer" means The Huntington National Bank, in its capacity as
servicer under the Sale and Servicing Agreement, and any Successor Servicer
thereunder.
"SFAS 140" means Statement of Accounting Standards No. 140 of the
Financial Accounting Standards Board, as it may be amended from time to time.
"Similar Law" means any foreign, federal, state or local law with
provisions substantially similar to Title I of ERISA or Section 4975 of the
Code.
"STAMP" has the meaning specified in Section 2.04.
"State" means any one of the 50 states of the United States of America,
or the District of Columbia.
"Successor Servicer" has the meaning specified in Section 3.07(e).
9
"Trust Estate" means all money, instruments, rights and other property
that are subject or intended to be subject to the lien and security interest
of this Indenture for the benefit of the Noteholders (including, without
limitation, all property and interests Granted to the Indenture Trustee),
including all proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force on the date hereof, unless otherwise specifically
provided.
Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used herein but not otherwise defined shall have
the meanings ascribed thereto in the Sale and Servicing Agreement.
(b) Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) definitions are applicable to the singular and plural forms of
such terms and to the masculine, feminine and neuter genders of such
terms; and
(vi) any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to time
amended, modified or supplemented and includes (in the case of agreements
or instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such 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:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
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"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.01. Form. The Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes and
the Class D Notes, in each case together with the Indenture Trustee's
certificate of authentication, shall be in substantially the form set forth in
Exhibit X-0, Xxxxxxx X-0, Exhibit X-0, Xxxxxxx X-0, Exhibit B, Exhibit C and
Exhibit D, respectively, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and 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 the Notes, as evidenced by their
execution of the Notes (but which do not affect the rights, duties or
immunities of the Indenture Trustee). 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 such Note.
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.
Each Note shall be dated the date of its authentication. The terms of the
Notes set forth in Exhibit X-0, Xxxxxxx X-0, Exhibit X-0, Xxxxxxx X-0, Exhibit
B, Exhibit C, and Exhibit D are part of the terms of this Indenture.
SECTION 2.02. Execution, Authentication and Delivery. The Notes shall
be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or by
facsimile.
Notes bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Note Registrar shall upon Issuer Order authenticate and deliver Class
A-1 Notes for original issue in an aggregate principal amount of $225,300,000,
Class A-2 Notes for original issue in an aggregate principal amount of
$165,450,000, Class A-3 Notes for original issue in an aggregate principal
amount of $174,400,000 Class A-4 Notes for original issue in an aggregate
principal amount of $187,285,000, Class B Notes for original use in a
aggregate principal amount of $25,000,000, Class C Notes for original issue in
an aggregate principal amount of $28,710,000 and Class D Notes for original
issue in an aggregate original principal amount of $13,940,000. The aggregate
principal amount of Class A-1 Notes, Class A-2 Notes,
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Class A-3 Notes, Class A-4 Notes, Class B Notes, Class C Notes and Class D
Notes outstanding at any time may not exceed such respective amounts except as
provided in Section 2.06.
Each Note authenticated and delivered by the Note Registrar to or upon
Issuer Order on the Closing Date shall be dated as of the Closing Date. All
other Notes that are authenticated after the Closing Date for any other
purpose under this Indenture shall be dated the date of their authentication.
The Class A Notes, Class B Notes and Class C Notes shall be issuable as
registered Notes in minimum denominations of $1,000 and in integral multiples
of $1,000 in excess thereof. The Class D Notes shall be issuable as registered
Notes in minimum denominations of $25,000 and in integral multiples of $1,000
in excess thereof.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Note a certificate
of authentication substantially in the form provided for herein executed by
the Note Registrar 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 2.03. Temporary Notes. Pending the preparation of Definitive
Notes, the Issuer may execute, and upon receipt of an Issuer Order the Note
Registrar shall authenticate and deliver, temporary Notes that 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.
If temporary Notes are issued, the Issuer shall cause Definitive Notes to
be prepared without unreasonable delay. The Definitive Notes shall be printed,
lithographed or engraved, or provided by any combination thereof, or in any
other manner permitted by the rules and regulations of any applicable
securities exchange, all as determined by the Authorized Officers executing
such Definitive Notes. After the preparation of Definitive Notes, the
temporary Notes shall be exchangeable for Definitive Notes upon surrender of
the temporary Notes at the office or agency of the Issuer to be maintained as
provided in Section 3.02, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Notes, the
Issuer shall execute, and the Note Registrar 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 2.04. Registration; Registration of Transfer and Exchange. The
Issuer shall cause to be kept a register (the "Note Register") in which,
subject to such reasonable regulations as it may prescribe, the Note Registrar
shall provide for the registration of Notes and the registration of transfers
of Notes. The Indenture Trustee is hereby initially appointed the "Note
Registrar" for the purpose of registering Notes and transfers of Notes as
herein provided. Any
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Note Registrar appointed in accordance with this Section 2.04 may at any time
resign by giving at least thirty days advance written notice of resignation to
the Indenture Trustee (if the Indenture Trustee is not the Note Registrar) and
the Issuer. Upon any resignation of any Note Registrar, the Issuer shall
promptly appoint a successor or, if it elects not to make such an appointment,
assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer
as Note Registrar, the Issuer will give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register, and the Indenture Trustee shall
have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to
conclusively rely upon a certificate executed on behalf of the 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.
Upon surrender for registration of transfer of any Note at the office or
agency of the Issuer to be maintained as provided in Section 3.02, if the
requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute,
and the Note Registrar shall authenticate and the Noteholder shall obtain from
the Note Registrar, in the name of the designated transferee or transferees,
one or more new Notes of the same Class in any authorized denominations, of a
like aggregate principal amount.
All Notes issued and authenticated upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
At the option of the Holder, Notes may be exchanged for other Notes of
the same Class in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, if the requirements of
Section 8-401(1) of the UCC are met, the Issuer shall execute, and the Note
Registrar, without having to verify that the requirements of 8-401(1) have
been met, shall authenticate and the Noteholder shall obtain from the
Indenture Trustee, the Notes that the Noteholder making the exchange is
entitled to receive.
No sale, pledge or other transfer of a Class D Note shall be made unless
such sale, pledge or other transfer is (I)(A) pursuant to an effective
registration statement under the Securities Act, (B) for so long as the Class
D Notes are eligible for resale pursuant to Rule 144A under the Securities Act
to a Person the transferor reasonably believes after due inquiry is a
"qualified institutional buyer" as defined in Rule 144A under the Securities
Act ("Rule 144A") that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the transfer is
being made in reliance on Rule 144A, or (C) pursuant to another available
exemption from the registration requirements of the Securities Act and (II) in
accordance with any applicable securities laws of any State of the United
States and any other relevant jurisdiction. The Depositor and the Indenture
Trustee may require an opinion of counsel to be delivered to it in connection
with any transfer of the Class D Notes pursuant to clauses (I) (A) or (C)
above.
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The Class D Notes shall bear legends stating that they have not been
registered under the Securities Act and are subject to the restrictions on
transfer described in this Section 2.04. Each transferee of a Class D Note
that is a Book-Entry Note, by acceptance of such Note, shall be deemed to have
accepted such Note subject to the restrictions on transferability set forth in
the immediately preceding paragraph and in the typewritten Note representing
such Book-Entry Note delivered to the Clearing Agency. A Class D Note in the
form of a Definitive Note may not be transferred, directly or indirectly, to
any Person, other than the Initial Purchaser, unless (A) the transferee of the
Class D Note certifies in an investment letter, substantially in the form of
Exhibit E attached hereto, to the Depositor and the Indenture Trustee that
such Person is a "qualified institutional buyer" (as defined in Rule 144A) or
(B) the transferee of the Class D Note delivers to the Depositor and the
Indenture Trustee an opinion of counsel that such transfer is permitted
pursuant to clause (I)(A) or (C) of the immediately preceding paragraph. Any
opinions of counsel required in connection with a transfer shall be by counsel
reasonably acceptable to the Depositor and the Indenture Trustee.
Each Person that acquires a Note shall be required to represent to the
Depositor and the Indenture Trustee, or in the case of a Note in book-entry
form, will be deemed to represent by its acceptance of the Note, that (i) it
is not, and is not acquiring the Note on behalf of or with "plan assets" (as
determined under Department of Labor Regulation ss.2510.3-101 or otherwise)
of, a Plan, or any employee benefit plan subject to Similar Law, or (ii) it is
acquiring a Class A Note, Class B Note or Class C Note and is entitled to
exemptive relief pursuant to a Department of Labor prohibited transaction
class exemption or other applicable exemption with respect to its acquisition
and continued holding of such Note or, its acquisition and holding of the
Class A Note, Class B Note or Class C Note do not give rise to a non-exempt
prohibited transaction. Any attempted or purported transfer of a Note with
respect to which neither of the foregoing representations is true shall be
void ab initio.
In order to preserve the exemption for resales and transfers provided by
Rule 144A under the Securities Act, the Issuer shall provide to any Holder of
a Class D Note and any prospective purchaser designated by such Holder, upon
request of such Holder or such prospective purchaser, such information
required by Rule 144A as will enable the resale of such Class D Note to be
made pursuant to Rule 144A. The Servicer, the Note Registrar and the Indenture
Trustee shall cooperate with the Issuer in providing the Issuer such
information regarding the Class D Notes, the Trust Estate and other matters
regarding the Issuer as the Issuer shall reasonably request to meet its
obligations under the preceding sentence.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument
of transfer in form satisfactory to the 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 the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Exchange Act.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or
14
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than exchanges pursuant
to Section 2.03 or 9.05 not involving any transfer.
The preceding provisions of this Section 2.04 notwithstanding, the Issuer
shall not be required to make and the Note Registrar need not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of fifteen days preceding the due date for any payment with respect to
the Note.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the transfer of
Notes.
SECTION 2.05. [Reserved].
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Note Registrar, or the Note Registrar
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Note Registrar such security or
indemnity as may be required by it to hold the Issuer and the Note Registrar
harmless, then, in the absence of notice to the Issuer or the Note Registrar
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, the Issuer shall
execute, and upon an Issuer Order the Note Registrar shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Note, a replacement Note of the same Class; provided, however, that if
any such destroyed, lost or stolen Note, but not a mutilated Note, shall have
become or within fifteen days shall be due and payable, or shall have been
called for redemption, instead of issuing a replacement Note, the Issuer may
pay such destroyed, lost or stolen Note when so due or payable or upon the
Redemption Date without surrender thereof. If, after the delivery of such
replacement Note or payment of a destroyed, lost or stolen Note, a bona fide
purchaser of the original Note in lieu of which such replacement Note was
issued presents for payment such original Note, the Issuer and the Note
Registrar 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 the Issuer or the Note Registrar
in connection therewith.
Upon the issuance of any replacement Note under this Section, the 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
the Indenture Trustee and the Note Registrar) connected therewith.
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 the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
15
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 2.07. Persons Deemed Note Owners. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee, the
Note Registrar, the Paying Agent and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name any Note is registered (as of the
day of determination) as the owner of such Note for the purpose of receiving
payments of principal of and interest, if any, on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent or any
agent of the Issuer, the Indenture Trustee the Note Registrar, the Paying
Agent or the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.08. Payment of Principal and Interest; Defaulted Interest.
(a) The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes, the Class B Notes, the Class C Notes and the Class D Notes
shall accrue interest at the Class A-1 Rate, the Class A-2 Rate, the Class A-3
Rate, the Class A-4 Rate, the Class B Rate, the Class C Rate and the Class D
Rate, respectively, as set forth in Exhibit X-0, Xxxxxxx X-0, Exhibit X-0,
Xxxxxxx X-0, Exhibit B, Exhibit C and Exhibit D, respectively, and such
interest shall be payable on each Distribution Date as specified therein,
subject to Section 3.01. Any installment of interest or principal payable on a
Note that is punctually paid or duly provided for by the Issuer on the
applicable Distribution Date shall be paid to the Person in whose name such
Note (or one or more Predecessor Notes) is registered on the Record Date 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 shall be made by
wire transfer in immediately available funds to the account designated by such
nominee at least ten Business Days prior to such Distribution Date; provided,
however, that the final installment of principal payable with respect to such
Note on a Distribution Date or on the related Final Scheduled Distribution
Date (including the Redemption Price for any Note called for redemption
pursuant to Section 10.01) shall be payable as provided in paragraph (b)
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.03.
(b) The principal of each Note shall be payable in installments on each
Distribution Date as provided in Section 3.01 hereof and the forms of the
Notes set forth in Exhibit X-0, Xxxxxxx X-0, Exhibit X-0, Xxxxxxx X-0, Exhibit
B, Exhibit C and Exhibit D. Notwithstanding the foregoing, the entire unpaid
principal amount of each Class of Notes may be declared immediately due and
payable, if not previously paid, in the manner provided in Section 5.02 on any
date on which an Event of Default shall have occurred and be continuing by the
Indenture Trustee or the Indenture Trustee acting at the written direction of
the Holders of Notes representing not less than a majority of the Outstanding
Amount of the Controlling Class. All principal payments on each Class of Notes
shall be made pro rata to the Noteholders of each Class entitled thereto. Upon
written notice thereof, the Indenture Trustee shall notify the Person
16
in whose name a Note is registered at the close of business on the Record Date
preceding the Distribution Date on which the final installment of principal of
and interest on such Note is expected to be paid. Such notice 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 10.02.
(c) If the Issuer defaults in a payment of interest on the Notes, the
Issuer shall pay defaulted interest (plus interest on such defaulted interest
to the extent lawful) at the applicable Interest Rate in any lawful manner on
the next Distribution Date.
SECTION 2.09. Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Note Registrar, be delivered to the Note Registrar and
shall be promptly cancelled by the Note Registrar. The Issuer may at any time
deliver to the Note Registrar for cancellation any Notes previously
authenticated and delivered hereunder that the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by
the Indenture Trustee. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section 2.09, except as
expressly permitted by this Indenture. All cancelled Notes may be held or
disposed of by the Note Registrar in accordance with its standard retention or
disposal policy as in effect at the time unless the Issuer shall direct by an
Issuer Order that they be destroyed or returned to it; provided, that such
Issuer Order is timely and the Notes have not been previously disposed of by
the Note Registrar.
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 or on behalf of The Depository Trust Company, the
initial Clearing Agency, by, or on behalf of, the Issuer. The Book-Entry Notes
shall be registered initially on the Note Register in the name of Cede & Co.,
the nominee of the initial Clearing Agency, and no Note Owner thereof 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 such Note Owners pursuant to Section 2.12:
(i) the provisions of this Section 2.10 shall be in full force and
effect;
(ii) the Note Registrar and the Indenture Trustee shall be entitled
to deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on the 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;
(iii) to the extent that the provisions of this Section 2.10
conflict with any other provisions of this Indenture, the provisions of
this Section 2.10 shall control;
17
(iv) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency or the
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
(v) 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 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 or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Outstanding Amount of the
Notes (or Class thereof, including the Controlling Class) and has
delivered such instructions to the 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 such Note Owners pursuant to
Section 2.12, the 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 such Note Owners.
SECTION 2.12. Definitive Notes. If (i) the Depositor advises the
Indenture Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities with respect to the Book-Entry
Notes and the Depositor or the Indenture Trustee is unable to locate a
qualified successor or (ii) after the occurrence of an Event of Default or an
Event of Servicing Termination, Note Owners of the Book-Entry Notes
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of such Notes advise the Clearing Agency in writing that
the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of such Note Owners, then the Clearing Agency
shall notify all Note Owners and the 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 the Note Registrar of the typewritten
Notes representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Note Registrar
upon an Issuer Order shall authenticate the Definitive Notes in accordance
with the written instructions of the Clearing Agency. None of the Issuer, the
Note Registrar or the Indenture Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Notes, the Indenture Trustee and the Note Registrar shall recognize the
Holders of the Definitive Notes as Noteholders.
SECTION 2.13. Tax Treatment. The Issuer has entered into this
Indenture, and the Notes will be issued, with the intention that, for federal,
state and local income, single business and franchise tax purposes, the Notes
will qualify as indebtedness of the Issuer secured by the
18
Trust Estate. The Issuer, by entering into this Indenture, and each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of an interest in the applicable Book-Entry Note), agree to treat the Notes
for federal, state and local income and franchise tax purposes as
indebtedness.
ARTICLE III
COVENANTS
SECTION 3.01. Payment of Principal and Interest. The Issuer will duly
and punctually pay the principal of and interest, if any, on the Notes in
accordance with the terms of the Notes and this Indenture. Without limiting
the foregoing, subject to Section 8.02, on each Distribution Date, the Issuer
will cause to be distributed all amounts deposited pursuant to the Sale and
Servicing Agreement into the Note Interest Distribution Account and the
Principal Distribution Account (i) for the benefit of the Class A-1 Notes, to
the Class A-1 Noteholders, (ii) for the benefit of the Class A-2 Notes, to the
Class A-2 Noteholders, (iii) for the benefit of the Class A-3 Notes, to the
Class A-3 Noteholders, (iv) for the benefit of the Class A-4 Notes, to the
Class A-4 Noteholders, (v) for the benefit of the Class B Notes, to the Class
B Noteholders, (vi) for the benefit of the Class C Notes, to the Class C
Noteholders and (vii) for the benefit of the Class D Notes, to the Class D
Noteholders. Amounts properly withheld under the Code by any Person from a
payment to any Noteholder of interest and/or principal shall be considered as
having been paid by the Issuer to such Noteholder for all purposes of this
Indenture.
SECTION 3.02. Maintenance of Office or Agency. The 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 the Issuer in respect of
the Notes and this Indenture may be served. Such office will initially be
located at The Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. The Issuer will give prompt written notice to the Indenture Trustee of
the location, and of any change in the location, of any such office or agency.
If at any time the Issuer shall fail to maintain any such office or agency or
shall fail to furnish the Indenture Trustee with the address thereof, such
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Indenture Trustee, and the Issuer hereby appoints the Indenture
Trustee as its agent to receive all such surrenders, notices and demands.
SECTION 3.03. Money for Payments To Be Held in Trust. All payments of
amounts due and payable with respect to any Notes that are to be made from
amounts withdrawn from the Collection Account, the Note Interest Distribution
Account and the Principal Distribution Account shall be made on behalf of the
Issuer by the Indenture Trustee or by another Paying Agent, and no amounts so
withdrawn from the Collection Account, the Note Interest Distribution Account
or the Principal Distribution Account for payments of Notes shall be paid over
to the Issuer except as provided in this Section. On or before each
Distribution Date and Redemption Date, the Issuer shall deposit or cause to be
deposited in the Note Interest Distribution Account and the Principal
Distribution Account an aggregate sum sufficient to pay the amounts then
becoming due under the Notes, such sum to be held in trust for the benefit of
the Persons entitled thereto, and (unless the Paying Agent is the Indenture
Trustee) shall promptly notify the Indenture Trustee of its action or failure
so to act.
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The Issuer will cause each Paying Agent (other than the Indenture
Trustee) to execute and deliver to the Indenture Trustee an instrument in
which such Paying Agent shall agree with the Indenture Trustee, 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
herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer
(or any other obligor on the Notes) of which it has actual knowledge in
the making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon
the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes
if at any time it ceases to meet the standards required to be met by a
Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code 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.
The Indenture Trustee may at any time resign as Paying Agent by giving at
least thirty days' prior written notice of resignation to the Issuer.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order
direct any Paying Agent to pay to the Indenture Trustee all sums held in trust
by such Paying Agent, such sums to be held by the Indenture Trustee upon the
same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the 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 upon Issuer Request to the Issuer; and the Holder of such
Note shall thereafter, as an unsecured general creditor, look only to the
Issuer for payment thereof (but only to the extent of the amounts so paid to
the Issuer), and all liability of the Indenture Trustee or such Paying Agent
with respect to such trust money shall thereupon cease; provided, however,
that the Indenture Trustee or such Paying Agent, before being required to make
any such repayment, shall at the expense and direction of the Issuer cause to
be published once, in a newspaper published in the English language,
customarily published on
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each Business Day and of general circulation in The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than thirty (30) days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer. The Indenture Trustee shall also adopt and employ, at the
expense and direction of the Issuer, any other reasonable means of
notification of such repayment (including, but not limited to, mailing notice
of such repayment to 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 the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.04. Existence. The Issuer will keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States
of America, in which case the Issuer 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 3.05. Protection of Trust Estate. The Issuer will from time to
time execute and deliver all such supplements and amendments hereto and hereby
authorizes, on or after the Closing Date, the filing by the Owner Trustee, on
its behalf, of all such financing statements, continuation statements,
instruments of further assurance and other instruments, and will take such
other action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the rights of
the Indenture Trustee and the Noteholders in such Trust Estate against
the claims of all persons and parties.
SECTION 3.06. Opinions as to Trust Estate.
(a) On the Closing Date, the Issuer shall cause to be furnished to
the Indenture Trustee an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with respect to the
recording and filing of this Indenture, any indentures supplemental
hereto, and any other requisite documents, and with respect to the
execution and filing of any financing statements and continuation
statements, as are necessary to perfect and make effective the lien and
security interest of this Indenture and reciting the details of such
action, or stating that, in the opinion of such counsel, no such action
is necessary to make such lien and security interest effective.
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(b) On or before March 15, in each calendar year, beginning in 2005, the
Issuer shall furnish to the Indenture Trustee and the Rating Agencies 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 is necessary to maintain
the lien and security interest created by this Indenture and reciting the
details of such action, or stating that in the opinion of such counsel no such
action is necessary to maintain such lien and security interest. Such Opinion
of Counsel shall also describe the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and the execution and filing of any financing statements
and continuation statements that will, in the opinion of such counsel, be
required to maintain the lien and security interest of this Indenture until
March 15 in the following calendar year.
SECTION 3.07. Performance of Obligations; Servicing of Receivables.
(a) The Issuer will not take any action and will use its reasonable 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 expressly provided in this Indenture, the Sale and Servicing
Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons with notification to the
Rating Agencies to assist it in performing its duties under this Indenture,
and any performance of such duties by a Person identified to the Indenture
Trustee in an Officer's Certificate of the Issuer shall be deemed to be action
taken by the Issuer. Initially, the Issuer has contracted with the Servicer
and the Owner Trustee to assist the Issuer in performing its duties under this
Indenture.
(c) The 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 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, the Issuer shall not waive, amend, modify, supplement or
terminate any Basic Document or any provision thereof without the consent of
either the Indenture Trustee or the Holders of at least a majority of the
Outstanding Amount of each Class of Notes, voting separately.
(d) If the Issuer shall have knowledge of the occurrence of an Event of
Servicing Termination under the Sale and Servicing Agreement, the Issuer shall
promptly notify the Indenture Trustee and the Rating Agencies thereof, and
shall specify in such notice the action, if any, the Issuer is taking with
respect to such default.
(e) Upon any termination of the Servicer's rights and powers pursuant to
the Sale and Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee thereof. As
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soon as a successor servicer (a "Successor Servicer") is appointed, the
Issuer shall notify the Indenture Trustee in writing of such appointment,
specifying in such notice the name and address of such Successor Servicer.
(f) Without limitation of the absolute nature of the assignment granted
to the Indenture Trustee under this Indenture or the rights of the Indenture
Trustee hereunder, the Issuer hereby agrees (i) except to extent otherwise
provided in any Basic Documents, that it will not, without the prior written
consent of the Indenture Trustee acting at the written direction 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 the Servicer or the Seller under the Sale and Servicing
Agreement; and (ii) that any such amendment shall not (A) 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 (B) reduce the aforesaid percentage of the Notes that is required to
consent to any such amendment, without the consent of the Holders of all
Outstanding Notes. If the Indenture Trustee acting at the written direction of
such Holders agrees to any such amendment, modification, supplement or waiver,
the Indenture Trustee agrees, promptly following a written request by the
Issuer to do so, to execute and deliver, at the Issuer's own expense, such
agreements, instruments, consents and other documents as the Issuer may deem
necessary or appropriate in the circumstances.
(g) The Issuer (or the Servicer on its behalf) shall maintain its
computer systems so that, from and after the time of the Grant under this
Indenture of the Receivables referenced in such Grant, the Issuer's (or the
Servicer's on its behalf) master computer records (including any backup
archives) that refer to a Receivable shall be coded to reflect that such
Receivable is part of the portfolio of Receivables that is the subject of this
Indenture and is owned by the Issuer. At or prior to the Closing Date, the
Issuer shall deliver to the Indenture Trustee a computer file, microfiche list
or printed list containing a true and complete list of all Receivables subject
to this Indenture. Such file or list shall be marked as Schedule A to this
Indenture, delivered to the Indenture Trustee as confidential and proprietary,
and is hereby incorporated into and made a part of this Indenture. The Issuer
further agrees not to alter the code referenced in the first sentence of this
paragraph with respect to any Receivable during the term of this Indenture
unless and until the lien on the related Financed Vehicle has been released in
accordance with the Basic Documents. Indication of such Receivables' inclusion
in the portfolio shall be deleted from or modified on the Issuer's (or the
Servicer's on its behalf) computer systems when, and only when, the lien on
the related Financed Vehicle has been released in accordance with the Basic
Documents.
SECTION 3.08. Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture, the Assignment,
Assumption and Recognition Agreement or the Sale and Servicing Agreement,
sell, transfer, exchange or otherwise dispose of any of the properties or
assets of the Issuer, including those included in the Trust Estate;
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(ii) claim any credit on, or make any deduction from the principal
or interest payable in respect of, the Notes (other than amounts properly
withheld from such payments under the Code) or assert any claim against
any present or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Trust Estate; or
(iii) (A) permit the validity or effectiveness of this Indenture to
be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any
Person to be released from any covenants or obligations with respect to
the Notes under this Indenture except as may be expressly permitted
hereby, (B) permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien of this Indenture) to
be created on or extend to or otherwise arise upon or burden the Trust
Estate or any part thereof or any interest therein or the proceeds
thereof (other than tax liens, mechanics' liens and other liens that
arise by operation of law, in each case on any of the Financed Vehicles
and arising solely as a result of an action or omission of the related
Obligor) or (C) permit the lien of this Indenture not to constitute a
valid first priority (other than with respect to any such tax, mechanics'
or other lien) security interest in the Trust Estate.
SECTION 3.09. Annual Statement as to Compliance. The Issuer will
deliver to the Indenture Trustee and the Rating Agencies within 75 days after
the end of each year (commencing with the year 2005), an Officer's Certificate
stating that:
(i) a review of the activities of the Issuer during such year and of
its performance under this Indenture has been made; and
(ii) based on such review, the Issuer has complied with all
conditions and covenants under this Indenture throughout such year or, if
there has been a default in its compliance with any such condition or
covenant, specifying each such default known to such Authorized Officer
and the nature and status thereof.
SECTION 3.10. Issuer May Consolidate, etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America or any State and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of and interest on
all Notes and the performance or observance of every agreement and
covenant of this Indenture on the part of the Issuer to be performed or
observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
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(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the effect
that such transaction will not have any material adverse federal tax
consequence to the Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act) in all material respects.
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which
is hereby restricted (A) shall be a United States citizen or a Person
organized and existing under the laws of the United States of America or
any State, (B) expressly assumes, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form satisfactory to
the Indenture Trustee, the due and punctual payment of the principal of
and interest on all Notes and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to be
performed or observed, all as provided herein, (C) expressly agrees by
means of such supplemental indenture that all right, title and interest
so conveyed or transferred shall be subject and subordinate to the rights
of Holders of the Notes, (D) unless otherwise provided in such
supplemental indenture, expressly agrees to indemnify, defend and hold
harmless the Issuer and the Indenture Trustee against and from any loss,
liability or expense arising under or related to this Indenture and the
Notes and (E) expressly agrees by means of such supplemental indenture
that such Person (or, if a group of Persons, one specified Person) shall
make all filings with the Commission (and any other appropriate Person)
required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the effect
that such
25
transaction will not have any material adverse federal tax consequence to the
Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act) in all material respects.
SECTION 3.11. Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or
merger (if other than the Issuer) shall succeed to, and be substituted for,
and may exercise every right and power of, the Issuer under this Indenture
with the same effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the
Issuer pursuant to Section 3.10(b), Xxxxxx Xxxxxxx Auto Loan Trust 2004-HB1
will be released from every covenant and agreement of this Indenture to be
observed by or performed on the part of the Issuer with respect to the Notes
immediately upon the delivery of written notice to the Indenture Trustee
stating that Xxxxxx Xxxxxxx Auto Loan Trust 2004-HB1 is to be so released.
SECTION 3.12. No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Receivables in the manner contemplated by this Indenture and the Basic
Documents and any activities incidental thereto. The Issuer shall not fund the
purchase of any receivables other than the Receivables.
SECTION 3.13. No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14. Servicer's Obligations. The Issuer shall cause the
Servicer to comply with Sections 4.10, 4.11, 4.12 and Article VII of the Sale
and Servicing Agreement.
SECTION 3.15. Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by the Trust Agreement, the Sale and Servicing
Agreement or this Indenture, the Issuer shall not make any loan or advance or
credit to, or guarantee (directly or indirectly or by an instrument having the
effect of assuring another's payment or performance on any obligation or
capability of so doing or otherwise), endorse or otherwise become contingently
liable, directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree contingently
to do so) any stock, obligations, assets or securities of, or any other
interest in, or make any capital contribution to, any Person.
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SECTION 3.16. Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
SECTION 3.17. Restricted Payments. Except with respect to the proceeds
from issuance of the Notes, the Issuer shall not, directly or indirectly, (i)
pay any dividend or make any distribution (by reduction of capital or
otherwise), whether in cash, property, securities or a combination thereof, to
the Owner Trustee or any owner of a beneficial interest in the Issuer or
otherwise with respect to any ownership or equity interest or security in or
of the Issuer or to the Servicer, (ii) redeem, purchase, retire or otherwise
acquire for value any such ownership or equity interest or security or (iii)
set aside or otherwise segregate any amounts for any such purpose; provided,
however, that the Issuer may make, or cause to be made, distributions as
contemplated by, and to the extent funds are available for such purpose under,
the Sale and Servicing Agreement, this Indenture or the Trust Agreement. The
Issuer will not, directly or indirectly, make payments to or distributions
from the Note Interest Distribution Account, the Principal Distribution
Account or the Collection Account except in accordance with this Indenture and
the Basic Documents.
SECTION 3.18. Notice of Events of Default. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event
of Default hereunder, of which the Issuer has actual knowledge, and of each
default on the part of the Servicer or the Depositor of its obligations under
the Sale and Servicing Agreement, of which the Issuer has actual knowledge.
SECTION 3.19. Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further
instruments and so such further acts as may be reasonably necessary or proper
to carry out more effectively the purpose of this Indenture.
SECTION 3.20. Perfection Representation. The Issuer further makes all
the representations, warranties and covenants set forth in Schedule B.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of
mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon, (iv) Sections
3.03, 3.04, 3.05, 3.08, 3.10, 3.11, 3.12, 3.13, 3.15, 3.16 and 3.17, (v) the
rights, obligations and immunities of the Indenture Trustee, the Note
Registrar and the Paying Agent hereunder (including the rights of the
Indenture Trustee, the Note Registrar and the Paying Agent under Section 6.07
and the obligations set forth in Section 4.02) and (vi) the rights of
Noteholders as beneficiaries hereof with respect to the property so deposited
with the Indenture Trustee for the benefit of the Indenture Trustee payable to
all or any of them, and the Indenture Trustee, on demand of and at the expense
of the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, when
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(A) either:
(1) all Notes theretofore authenticated and delivered (other
than (i) Notes that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 2.06 and (ii)
Notes for the payment of which money has theretofore been deposited
in trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.03) have been delivered to the Note Registrar
for cancellation; or
(2) all Notes not theretofore delivered to the Note Registrar
for cancellation:
a. have become due and payable,
b. will become due and payable within one year of the
Class D Final Scheduled Distribution Date, or
c. are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the
giving of notice of redemption by the Indenture Trustee in the
name, and at the expense, of the Issuer;
and the Issuer, in the case of a, b, or c above, has irrevocably
deposited or caused to be irrevocably deposited with the Indenture
Trustee cash or direct obligations of or obligations guaranteed by the
United States of America (that will mature prior to the date such amounts
are payable), in trust for such purpose, in an amount sufficient to pay
and discharge the entire indebtedness on such Notes not theretofore
delivered to the Indenture Trustee for cancellation when due to the
applicable Final Scheduled Distribution Date or Redemption Date (if Notes
shall have been called for redemption pursuant to Section 10.01), as the
case may be;
(B) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer including, but not limited to, fees
and expenses due to the Indenture Trustee; and
(C) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if required by the
TIA or the Indenture Trustee) an Independent Certificate from a firm
of certified public accountants, each meeting the applicable
requirements of Section 11.01(a) and, subject to Section 11.02, each
stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been
complied with.
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SECTION 4.02. Application of Trust Money. All moneys deposited with
the Indenture Trustee pursuant to Section 4.01 hereof shall be held in trust
and applied by it, on behalf of the Indenture Trustee, in accordance with the
provisions of the Notes and this Indenture to the payment, either directly or
through any Paying Agent, to the Holders of the particular Notes for the
payment or redemption of which such moneys have been deposited with the
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, in the Sale and Servicing Agreement or by law.
SECTION 4.03. 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 the Indenture
Trustee under the provisions of this Indenture with respect to such Notes
shall, upon written demand of the Issuer, be paid to the Indenture Trustee to
be held and applied according to Section 3.03; and thereupon, such Paying
Agent shall be released from all further liability with respect to such
moneys.
SECTION 4.04. Release of Collateral. Subject to Section 11.01 and the
terms of the Basic Documents, the Indenture Trustee shall release property
from the lien of this Indenture only upon receipt by it of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA xx.xx. 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.
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(i) default in the payment of any interest on any Note of the
Controlling Class when the same becomes due and payable, and such default
shall continue for a period of thirty-five days;
(ii) default in the payment of the principal of or any installment
of the principal of any Note when the same becomes due and payable;
(iii) default in the observance or performance of any material
covenant or agreement of the Issuer made in this Indenture (other than a
covenant or agreement, a default in the observance or performance of
which is elsewhere in this Section 5.01 specifically dealt with), or any
representation or warranty of the Issuer made in this Indenture or in any
certificate or other writing delivered pursuant hereto or in connection
herewith proving to have been incorrect in any material respect as of the
time when the same shall have been made, and such
29
default shall continue or not be cured, or the circumstance or condition
in respect of which such misrepresentation or warranty was incorrect
shall not have been eliminated or otherwise cured, for a period of thirty
days after there shall have been given, by registered or certified mail,
to the Issuer by the Indenture Trustee or to the Issuer and the Indenture
Trustee by the Holders of at least 25% of the Outstanding Amount of the
Controlling 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;
(iv) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial
part of the Trust Estate in an involuntary case under any applicable
federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Trust Estate, or the ordering
of the winding-up or liquidation of the Issuer's affairs, and such decree
or order shall remain unstayed and in effect for a period of sixty
consecutive days; or
(v) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or the consent by the Issuer to the entry of
an order for relief in an involuntary case under any such law, or the
consent by the Issuer to the appointment of or taking of possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Trust
Estate, or the making by the Issuer of any general assignment for the
benefit of creditors, or the failure by the Issuer generally to pay its
debts as such debts become due, or the taking of any action by the Issuer
in furtherance of any of the foregoing.
The Issuer shall, upon its actual knowledge of such, promptly deliver to
the Indenture Trustee written notice in the form of an Officer's Certificate
of any event that with the giving of notice and the lapse of time would become
an Event of Default under clause (iii), its status and what action the Issuer
is taking or proposes to take with respect thereto.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default shall occur and be continuing, then and in
every such case, the Indenture Trustee may, or the Indenture Trustee as
directed in writing by the Holders of Notes representing not less than a
majority of the Outstanding Amount of the Controlling Class, shall, declare,
by written notice to the Issuer, all the Notes to be then immediately due and
payable, and upon any such declaration the Outstanding Amount of such Notes,
together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable pursuant to the last
paragraph of Section 5.06 of the Sale and Servicing Agreement. Notwithstanding
anything to the contrary in this clause (a), if an Event of Default specified
in clauses (iv) or (v) of Section 5.01 shall have occurred and be
30
continuing at any time when the Indenture Trustee is the Controlling Party,
the Notes shall become immediately due and payable at par, together with
accrued interest thereon.
(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 the Indenture Trustee as hereinafter in this Article V
provided, the Holders of Notes representing a majority of the Outstanding
Amount of the Controlling Class, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) the Issuer has paid or deposited with the Indenture Trustee a
sum sufficient to pay:
(A) all payments of principal of and interest on all Notes
and all other amounts that would then be due hereunder or upon
such Notes if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid by the Indenture Trustee hereunder and
the reasonable compensation, expenses and disbursements of the
Indenture Trustee and its agents and counsel and the reasonable
compensation, expenses and disbursements of the Owner Trustee
and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of 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 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee; Authority of the Controlling Party.
(a) The Issuer covenants that if (i) a 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 thirty-five Business 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, the Issuer will, upon demand
of the Indenture Trustee, pay to it, for the benefit of the Holders of the
Notes, the entire amount then due and payable on such Notes in respect of
principal and interest, with interest on the overdue principal and, to the
extent payment at such rate of interest shall be legally enforceable, on
overdue installments of interest at the related Interest Rate and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses and
disbursements of the Indenture Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor on such
31
Notes and collect in the manner provided by law out of the Trust Estate or the
property of any other obligor on such Notes, wherever situated, the moneys
adjudged or decreed to be payable.
(c) If an Event of Default occurs, the Indenture Trustee may, as more
particularly provided in Section 5.04, in its discretion or shall at the
written directions of the Holders of at least a majority of the Outstanding
Amount of the Notes proceed to protect and enforce its rights and the rights
of the Noteholders, by such appropriate Proceedings as the Indenture Trustee
or the Indenture Trustee at the written direction of the Holders of at least a
majority of the Outstanding Amount of the Notes shall reasonably deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy or
legal or equitable right vested in the Indenture Trustee by this Indenture or
by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor on 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, or
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or
Person, or in case of any other comparable Proceedings relative to the Issuer
or other obligor on the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Indenture Trustee
shall have made any demand pursuant to the provisions of this Section, shall
be entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the entire amount of
principal and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Indenture Trustee (including any claim
for reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of reasonable out-of-pocket expenses and
liabilities incurred, by the Indenture Trustee and each predecessor
Indenture Trustee, except as a result of negligence or bad faith) and of
the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law or regulation, to vote on
behalf of the Holders of Notes in any election of a trustee, a standby
trustee or a 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 the Indenture
Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the
Indenture Trustee or
32
the Holders of Notes allowed in any Proceedings relative to the Issuer,
its creditors or its property; and any trustee, receiver, liquidator,
custodian or other similar official in any such Proceeding is hereby
authorized by each of such Noteholders to make payments to the Indenture
Trustee and, in the event that the Indenture Trustee shall consent to the
making of payments directly to such Noteholders, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee
and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad
faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any Proceedings
relative thereto, and any such Proceedings instituted by the Indenture Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses, disbursements
and compensation of the Indenture Trustee, each predecessor Indenture Trustee
and their respective agents and attorneys, shall be for the ratable benefit of
the Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Notes, and it shall not be necessary
to make any Noteholder a party to any such Proceedings.
SECTION 5.04. Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing, the
Indenture Trustee may do one or more of the following (subject to Section
5.06):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes
or under this Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained and collect from the Issuer and
any other obligor on 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;
33
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee and the 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, however, the Indenture Trustee may not sell or otherwise liquidate
the Trust Estate following an Event of Default, other than Event of Default
described in Section 5.01(i) or (ii), unless, (i) with respect to any Event of
Default described in Section 5.01(iv) or (v):
(A) the holders of Notes evidencing 100% of the Outstanding
Amount of the Controlling Class (excluding Notes held by a Seller,
the Servicer or any of their respective Affiliates) consent thereto;
or
(B) the proceeds of such sale or liquidation are sufficient to
pay in full the principal of and the accrued interest on the
Outstanding Notes; or
(C) the Indenture Trustee determines based solely on an
analysis provided by an independent accounting firm which shall not
be at the expense of the Indenture Trustee that the Trust Estate
will not continue to provide sufficient funds for the payment of
principal of and interest on the Notes as they would have become due
if the Notes had not been declared due and payable and obtains the
consent of holders of Notes evidencing not less than 66 2/3% of the
Outstanding Amount of the Controlling Class; or
(ii) with respect to an Event of Default described in Section 5.01(iii):
(A) the holders of all Outstanding Notes consent thereto; or
(B) the proceeds of such sale or liquidation are sufficient to pay
in full the principal of and accrued interest on the Outstanding Notes.
In determining such sufficiency or insufficiency with respect to clauses
(i)(B) and (ii)(B) above, the Indenture Trustee may, at the Issuer's expense
and paid pursuant to Section 6.07, 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) If the Trust Estate is sold or liquidated pursuant to Section
5.04(a)(iv) and the Indenture Trustee collects any money or property pursuant
to this Article V, it shall pay out the money or property in the following
order:
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FIRST: to the Indenture Trustee, the Paying Agent and the Note Registrar
(for amounts due under Section 6.07), and then to the Servicer and the
Owner Trustee the amounts due under Sections 5.06(b)(i) and (ii) of the
Sale and Servicing Agreement;
SECOND: to the Class A Noteholders for amounts due and unpaid on the
Notes in respect of interest (including any premium), ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class A Notes in respect of interest (including any
premium);
THIRD: to Holders of the Class A Notes for amounts due and unpaid on the
Class A Notes in respect of principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Class A Notes in respect of principal, until the Outstanding Amount of
the Class A Notes is reduced to zero;
FOURTH: to the Class B Noteholders for amounts due and unpaid on the
Notes in respect of interest (including any premium), ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class B Notes in respect of interest (including any
premium);
FIFTH: to Holders of the Class B Notes for amounts due and unpaid on the
Class B Notes in respect of principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Class B Notes in respect of principal, until the Outstanding Amount of
the Class B Notes is reduced to zero;
SIXTH: to the Class C Noteholders for amounts due and unpaid on the Notes
in respect of interest (including any premium), ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class C Notes in respect of interest (including any
premium);
SEVENTH: to Holders of the Class C Notes for amounts due and unpaid on
the Class C Notes in respect of principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Class C Notes in respect of principal, until the Outstanding Amount of
the Class C Notes is reduced to zero;
EIGHTH: to the Class D Noteholders for amounts due and unpaid on the
Notes in respect of interest (including any premium), ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class D Notes in respect of interest (including any
premium);
NINTH: to Holders of the Class D Notes for amounts due and unpaid on the
Class D Notes in respect of principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Class D Notes in respect of principal, until the Outstanding Amount of
the Class D Notes is reduced to zero; and
TENTH: any excess amounts remaining after making the payments described
in clauses first through ninth above, to be applied pursuant to Section
5.06(b) of the Sale and Servicing Agreement to the extent that any
amounts payable thereunder have not been previously paid pursuant to
clauses first through ninth above. The Indenture Trustee may
35
fix a record date and payment date for any payment to Noteholders
pursuant to this Section. At least fifteen days before such record date,
the Issuer shall mail to each Noteholder and the Indenture Trustee a
notice that states the record date, the payment date and the amount to be
paid.
SECTION 5.05. Optional Preservation of the Receivables. If the Indenture
Trustee is the Controlling Party and the Notes have been declared to be due
and payable under Section 5.02 following an Event of Default, and such
declaration and its consequences have not been rescinded and annulled, the
Indenture Trustee may, but need not, elect to maintain possession of the 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 the Indenture Trustee shall take such desire into account
when determining whether or not to maintain possession of the Trust Estate. In
determining whether or not to maintain possession of the Trust Estate, the
Indenture Trustee may, at the expense of the Issuer and paid pursuant to
Section 6.07, but need not, obtain and conclusively 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 5.06. 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:
(i) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the Outstanding Amount of
the Controlling Class have made written request to the Indenture Trustee
to institute such Proceeding in respect of such Event of Default in its
own name as Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities that may
be incurred in complying with such request;
(iv) the Indenture Trustee for sixty days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceedings; and
(v) no direction inconsistent with such written request has been
given to the Indenture Trustee during such sixty day period by the
Holders of a majority of the Outstanding Amount of the Controlling Class.
It is understood and intended that no one or more Holders of Notes shall have
any right in any manner whatsoever 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.
36
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes pursuant to this Section, each representing less than a majority of the
Outstanding Amount of the Controlling Class, the Indenture Trustee shall act
at the direction of the group representing the greater percentage of the
Outstanding Amount of Notes and if there is no such group then in its sole
discretion may determine what action, if any, shall be taken, notwithstanding
any other provisions of this Indenture.
SECTION 5.07. 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 in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder.
SECTION 5.08. Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right
or remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had
been instituted.
SECTION 5.09. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10. Delay or Omission Not a Waiver. No delay or omission of the
Indenture Trustee, or any 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 the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or the
Noteholders, as the case may be.
SECTION 5.11. Control by Controlling Class. If the Indenture Trustee is
the Controlling Party, the Holders of a majority of the Outstanding Amount of
the Controlling Class shall have the right to direct the time, method and
place of conducting any Proceeding for any remedy available to the Indenture
Trustee with respect to the Notes or exercising any trust or power conferred
on the Indenture Trustee; provided that:
37
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) the Indenture Trustee shall not sell or liquidate the Trust
Estate except pursuant to the express terms of Section 5.04(a)(iv); and
(iii) the Indenture Trustee may take any other action deemed proper
by the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section, subject
to Section 6.01, the 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.
SECTION 5.12. Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.02, the
Holders of Notes of not less than a majority of the Outstanding Amount of the
Controlling Class may, waive any past Default or Event of Default and its
consequences except a Default (a) in payment of principal of or interest on
any of the Notes or (b) in respect of a covenant or provision hereof that
cannot be modified or amended without the consent of the Holder of each Note.
In the case of any such waiver, the Issuer, the 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 a 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 the Indenture Trustee for any action taken, suffered or omitted by it
as Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes (or, in the case of a right or remedy under
this Indenture which is instituted by the Controlling Class, more than 10% of
the Controlling Class) or (c) any suit instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or after
the respective due dates expressed in such Note and in this Indenture (or, in
the case of redemption, on or after the Redemption Date).
SECTION 5.14. Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner
38
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, that may affect
the covenants or the performance of this Indenture; and the Issuer (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Indenture Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 5.15. Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any rights
or remedies of the Indenture Trustee or the Noteholders shall be impaired by
the recovery of any judgment by the Indenture Trustee against the Issuer or by
the levy of any execution under such judgment upon any portion of the Trust
Estate or upon any of the assets of the Issuer. Any money or property
collected by the Indenture Trustee shall be applied in accordance with Section
5.04(b).
SECTION 5.16. Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so, the
Issuer shall take all such lawful action as the Indenture Trustee may request
to compel or secure the performance and observance by HNB, the Seller or the
Servicer, as applicable, of each of their obligations to the Issuer under or
in connection with the Sale and Servicing Agreement or the Assignment,
Assumption and Recognition Agreement, as applicable, and to exercise any and
all rights, remedies, powers and privileges lawfully available to the Issuer
under or in connection with the Sale and Servicing Agreement or the
Assignment, Assumption and Recognition Agreement to the extent and in the
manner directed by the Indenture Trustee, including the transmission of
notices of default on the part of HNB, the Seller or the Servicer thereunder
and the institution of legal or administrative actions or proceedings to
compel or secure performance by HNB, the Seller or the Servicer of each of
their obligations under the Sale and Servicing Agreement or the Assignment,
Assumption and Recognition Agreement; provided, however, nothing herein shall
in any way impose on the Indenture Trustee the duty to monitor the performance
of HNB, the Seller or the Servicer of any of their liabilities, duties or
obligations under any Basic Document.
(b) If an Event of Default has occurred, the Indenture Trustee may, and
at the direction (which direction shall be in writing) of the Holders of not
less than a majority of the Outstanding Amount of the Controlling Class shall,
exercise all rights, remedies, powers, privileges and claims of the Issuer
against HNB, the Seller or the Servicer under or in connection with the Sale
and Servicing Agreement and the Assignment, Assumption and Recognition
Agreement including the right or power to take any action to compel or secure
performance or observance by HNB, the Seller or the Servicer, as the case may
be, of each of their obligations to the Issuer thereunder and to give any
consent, request, notice, direction, approval, extension or waiver under the
Sale and Servicing Agreement and the Assignment, Assumption and Recognition
Agreement, as the case may be, and any right of the Issuer to take such action
shall be suspended.
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ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.01. Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing of which a
Responsible Officer of the Indenture Trustee has actual knowledge, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon the face value of the
certificates, reports, resolutions, documents, orders, opinions or other
instruments furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, that the Indenture
Trustee shall not be responsible for the accuracy or content of any such
resolution, certificate, statement, opinion, report, document, order or
other instrument; however, with respect to any such certificates or
opinions that are required to be delivered to the Indenture Trustee
pursuant to this Indenture, the Indenture Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture. If any such instrument is found not to
conform in any material respect to the requirements of this Agreement,
the Indenture Trustee shall notify the Noteholders of such instrument in
the event that the Indenture Trustee, after so requesting, does not
receive a satisfactorily corrected instrument.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to the terms of this Indenture or any
other Basic Document.
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(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b), (c) and (g) of this
Section.
(e) The Indenture Trustee shall not be liable for indebtedness evidenced
by or arising under any of the Basic Documents, including principal of or
interest on the Notes, or interest on any money received by it except as the
Indenture Trustee may agree in writing with the Issuer.
(f) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee to
advance, expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section and to the provisions of
the TIA.
(i) In no event shall the Indenture Trustee be required to perform, or be
responsible for the manner of performance of, any of the obligations of the
Servicer or any other party under the Sale and Servicing Agreement, except as
contemplated by Section 8.03 of the Sale and Servicing Agreement.
(j) The Indenture Trustee shall have no duty (A) to see to any recording,
filing, or depositing of this Indenture or any agreement referred to herein or
any financing statement or continuation statement evidencing a security
interest, or to see to the maintenance of any such recording or filing or
depositing or to any rerecording, refiling or redepositing of any thereof, (B)
to see to any insurance, or (C) to see to the payment or discharge of any tax,
assessment, or other governmental charge or any lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the Trust
Estate.
For purposes of this Section 6.01 and Section 5.03(c), the Indenture
Trustee, or a Responsible Officer thereof, shall be charged with actual
knowledge of any default or an Event of Default if a Responsible Officer
actually knows of such default or Event of Default or the Indenture Trustee
receives written notice of such default or Event of Default from the Issuer,
the Servicer or Noteholders owning Notes aggregating not less than 10% of the
Outstanding Amount of the Notes. Notwithstanding the foregoing, the Indenture
Trustee shall not be required to take notice and in the absence of such actual
notice and knowledge, the Indenture Trustee may conclusively assume that there
is no such default or Event of Default.
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SECTION 6.02. Rights of Indenture Trustee.
(a) The Indenture Trustee may conclusively rely on the face value of any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Indenture Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel from the appropriate
party. The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on an Officer's Certificate or Opinion
of Counsel from the appropriate party. The right of the Indenture Trustee to
perform any discretionary act enumerated in this Indenture or in any Basic
Document shall not be construed as a duty of the Indenture Trustee and the
Indenture Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such discretionary act.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent, attorney or custodian appointed by the Indenture Trustee with due care.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers; provided, that the Indenture Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult, at the Issuer's expense (which
amount shall be paid in the priority set forth in Section 5.06(b) of the Sale
and Servicing Agreement), with counsel and the advice or opinion of counsel
with respect to legal matters relating to this Indenture and the Notes shall
be full and complete authorization and protection from liability in respect to
any action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) In the event that the Indenture Trustee is also acting as Paying
Agent, Note Registrar or collateral agent, the rights and protections afforded
to the Indenture Trustee pursuant to this Article VI shall be afforded to such
Paying Agent, Note Registrar or collateral agent.
(g) The Indenture Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture or to institute, conduct
or defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Noteholders, pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Indenture Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby.
(h) The right of the Indenture Trustee to perform any discretionary act
enumerated in this Indenture shall not be construed as a duty, and the
Indenture Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act.
(i) The Indenture Trustee shall not be required to give any bond or
surety in respect of the powers granted hereunder.
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(j) The rights, protections and immunities of the Indenture Trustee under
this Indenture set forth in subsections (a), (b), (c), (d), (e) and (i) of
this Section 6.02 shall also apply to the Indenture Trustee under each other
Basic Document to which the Indenture Trustee is a party.
SECTION 6.03. Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Issuer or its Affiliates with
the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent may do the same with
like rights. However, the Indenture Trustee must comply with Sections 6.11 and
6.12.
SECTION 6.04. Disclaimer of Indenture Trustee. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, the Trust Estate or the Notes, nor shall the
Indenture Trustee be accountable for the Issuer's use of the proceeds from the
Notes, and the Indenture Trustee shall not be responsible for any statement of
the Issuer in the Indenture, any Basic Document or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.05. Notice of Defaults. If a Default occurs and is continuing
and if it is actually known to a Responsible Officer of the Indenture Trustee,
the Indenture Trustee shall mail to each Noteholder notice of the Default
within thirty days after it occurs. Except in the case of a Default in payment
of principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice to Noteholders 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.
SECTION 6.06. Reports by Indenture Trustee to Holders. The Indenture
Trustee shall deliver to each Noteholder such information as may be required
to enable such holder to prepare its federal and state income tax returns.
SECTION 6.07. Compensation and Indemnity.
(a) The Issuer shall cause the payment to be made to the Indenture
Trustee from time to time compensation for its services to the extent of and
in the priority set forth in Section 5.06(b)(ii) of the Sale and Servicing
Agreement and as outlined in the fee letter from the Indenture Trustee to
Xxxxxx Xxxxxxx ABS Capital II Inc., dated March 31, 2004. The Indenture
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall cause reimbursement to be made
to the Indenture Trustee for all reasonable out-of-pocket expenses incurred or
made by it, including costs of collection, in addition to the compensation for
its services, out of the Trust to the extent of and in accordance with the
priority in Section 5.06(b)(ii) and (xi) of the Sale and Servicing Agreement.
Such expenses shall include the reasonable out-of-pocket compensation and
expenses, disbursements and advances of the Indenture Trustee's agents,
counsel, accountants and experts. The Issuer shall indemnify the Indenture
Trustee against any and all loss, liability or expense (including attorneys'
fees and expenses) incurred by it in connection with the administration of
this trust and the performance of its duties hereunder or any other Basic
Document to which the Indenture
43
Trustee is a party out of the Trust to the extent of and in accordance with
the priority in Section 5.06(b)(ii) and (xi) of the Sales and Servicing
Agreement. The Indenture Trustee shall notify the Issuer promptly of any claim
for which it may seek indemnity. Failure by the Indenture Trustee to so notify
the Issuer shall not relieve the Issuer of its obligations hereunder if no
material prejudice to the Issuer shall have resulted from such failure and, in
such event, only to the extent of such prejudice. The Issuer will not
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Indenture Trustee through the Indenture Trustee's own willful
misconduct, negligence or bad faith.
As security for the performance of the obligations of the Issuer under
this Section the Indenture Trustee shall have a lien prior to the Holders upon
all property and funds held or collected by the Indenture Trustee as such,
except funds held in trust for the payment of principal of or interest on the
Notes.
The Issuer's payment obligations and indemnities to the Indenture Trustee
pursuant to this Section shall survive the discharge of this Indenture or the
earlier resignation or removal of the Indenture Trustee. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.01(iv) or (v) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar
law.
SECTION 6.08. Replacement of Indenture Trustee.
(a) No resignation or removal of the Indenture Trustee and no appointment
of a successor Indenture Trustee shall become effective until the acceptance
of appointment by the successor Indenture Trustee pursuant to this Section
6.08(a). The Indenture Trustee may resign at any time by so notifying the
Issuer and each Rating Agency. The Holders of a majority in Outstanding Amount
of the Controlling Class may remove the Indenture Trustee by so notifying the
Indenture Trustee and may appoint a successor Indenture Trustee. The Issuer
shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property;
(iv) the Indenture Trustee otherwise becomes incapable of acting; or
(v) the Indenture Trustee breaches any representation, warranty or
covenant made by it under any Basic Document.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
44
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the 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 the Indenture Trustee under this Indenture. The retiring
Indenture Trustee shall be paid all amounts owed to it upon its resignation or
removal. 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.
The retiring Indenture Trustee shall not be liable for the acts or omissions
of any successor Indenture Trustee.
If a successor Indenture Trustee does not take office within sixty days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Holders of a majority in Outstanding
Amount of the Controlling Class may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this
Section, the Issuer's obligations under Section 6.07 shall continue for the
benefit of the retiring Indenture Trustee.
SECTION 6.09. Successor Indenture Trustee by Merger.
(a) If the Indenture Trustee consolidates with, merges or converts into,
or transfers all or substantially all its corporate trust business or assets
to, another Person, the resulting, surviving or transferee Person without any
further act shall be the successor Indenture Trustee; provided, that such
Person shall be qualified and eligible under Section 6.11. The Indenture
Trustee shall provide the Rating Agencies notice of any such transaction.
In the event that the Indenture Trustee is also acting as the Note
Registrar, then, in case at the time such successor or successors by merger,
conversion or consolidation to the Note Registrar shall succeed to the
obligations of the Note Registrar any of the Notes shall have been
authenticated but not delivered, any such successor to the Note Registrar may
adopt the certificate of authentication of any predecessor trustee and deliver
such Notes so authenticated; and in case at that time any of the Notes shall
not have been authenticated, any successor to the Note Registrar may
authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Note Registrar; and in all such cases such
certificates shall have the full force that it is anywhere in the Notes or in
this Indenture provided that the certificate of the Note Registrar shall have.
SECTION 6.10. Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Trust Estate may at the time be located, the 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
45
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 Estate, or any part thereof, and, subject
to the other provisions of this Section, such powers, duties, obligations,
rights and trusts as the Indenture Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 6.11 and no
notice to Noteholders of the appointment of any co-trustee or separate trustee
shall be required under Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Estate or any portion
thereof in any such jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, but solely at the direction of
the Indenture Trustee;
(ii) no trustee hereunder (including the Indenture Trustee) shall be
personally liable by reason of any act or omission of any other trustee
hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this 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
the Indenture Trustee or separately, as may be provided therein, subject to
all the provisions of this Indenture, specifically including every provision
of this Indenture relating to the conduct of, affecting the liability of, or
affording protection to, the Indenture Trustee. Every such instrument shall be
filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the
46
Indenture Trustee, to the extent permitted by law, without the appointment of
a new or successor trustee.
SECTION 6.11. Eligibility; Disqualification.
(a) The Indenture Trustee shall at all times satisfy the requirements of
TIA ss. 310(a). The Indenture Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published
annual report of condition, and the time deposits of the Indenture Trustee
shall be rated at least "A-1" by Standard & Poor's and "P-1" by Moody's. The
Indenture Trustee shall comply with TIA ss. 310(b), including the optional
provision permitted by the second sentence of TIA ss. 310(b)(9); provided,
however, that there shall be excluded from the operation of TIA ss. 310(b)(1)
any indenture or indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
(b) Within ninety days after ascertaining the occurrence of an Event of
Default which shall not have been cured or waived, unless authorized by the
Commission, the Indenture Trustee shall resign with respect to the Class A
Notes, the Class B Notes, the Class C Notes and/or the Class D Notes in
accordance with Section 6.08 of this Indenture, and the Issuer shall appoint a
successor Indenture Trustee for each of such Classes of Notes, as applicable,
so that there will be separate Indenture Trustees for the Class A Notes, the
Class B Notes, the Class C Notes and the Class D Notes. In the event the
Indenture Trustee fails to comply with the terms of the preceding sentence,
the Indenture Trustee shall comply with clauses (ii) and (iii) of TIA Section
310(b).
(c) In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any Class of Notes pursuant to this Section 6.11, the
Issuer, the retiring Indenture Trustee and the successor Indenture Trustee
with respect to such Class of Notes shall execute and deliver an indenture
supplemental hereto wherein each successor Indenture Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, the successor
Indenture Trustee all the rights, powers, trusts and duties of the retiring
Indenture Trustee with respect to the Notes of the Class to which the
appointment of such successor Indenture Trustee relates, (ii) if the retiring
Indenture Trustee is not retiring with respect to all Classes of Notes, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Indenture
Trustee with respect to the Notes of each Class as to which the retiring
Indenture Trustee is not retiring shall continue to be vested in the Indenture
Trustee and (iii) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Indenture Trustee, it
being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee shall be a trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Indenture Trustee; and upon the removal of the retiring Indenture
Trustee shall become effective to the extent provided herein.
SECTION 6.12. Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). An
47
Indenture Trustee who has resigned or been removed shall be subject to TIA
ss. 311(a) to the extent indicated.
SECTION 6.13. Waiver of Setoffs. The Indenture Trustee hereby expressly
waives any and all rights of setoff that the Indenture Trustee may otherwise
at any time have under applicable law with respect to any Trust Account and
agrees that amounts in the Trust Accounts shall at all times be held and
applied solely in accordance with the provisions hereof and of the other Basic
Documents.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01. Note Registrar To Furnish Indenture Trustee and Owner
Trustee Names and Addresses of Noteholders. The Note Registrar will furnish or
cause to be furnished to the Indenture Trustee and the Owner Trustee at such
times as the Indenture Trustee or the Owner Trustee may request in writing,
within thirty days after receipt by the Note Registrar of any such request, a
list, in such form as the Indenture Trustee or Owner Trustee may reasonably
require, of the names and addresses of the Holders of Notes as of a date not
more than ten days prior to the time such list is furnished; provided,
however, that so long as the Indenture Trustee is the Note Registrar, no such
list shall be required to be furnished to the Indenture Trustee.
SECTION 7.02. Preservation of Information; Communications to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as
provided in Section 7.01 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.01 upon receipt of a new list so furnished. The Indenture Trustee
shall make such list available to the Owner Trustee on written request, and to
the Noteholders upon written request of three or more Noteholders or one or
more Noteholders evidencing not less than 25% of the Outstanding Amount of the
Notes.
(b) Noteholders may communicate pursuant to TIA ss. 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA ss. 312(c).
SECTION 7.03. Reports by Issuer.
(a) The Indenture Trustee shall, on behalf of the Issuer:
(i) file 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
48
prescribe) that the Issuer may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the 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 the Issuer with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(iii) upon Issuer Request, transmit by mail to all Noteholders
described in TIA ss. 313(c) such summaries of any information, documents
and reports required to be filed by the Issuer pursuant to clauses (i)
and (ii) of this Section 7.03(a) and by rules and regulations prescribed
from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of each year.
SECTION 7.04. Reports by Indenture Trustee. If required by TIA ss.
313(a), within sixty days after each May 15 beginning with May 15, 2005, the
Indenture Trustee shall mail to each Noteholder as required by TIA ss. 313(c)
a brief report dated as of such date that complies with TIA ss. 313(a). The
Indenture Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to Noteholders shall be
filed by the Indenture Trustee with the Commission so long as such filings are
required by law or by rules or regulations promulgated by the Commission. Upon
its actual knowledge of such, the Issuer shall notify the Indenture Trustee if
and when the Notes are listed on any stock exchange.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.01. Collection of Money. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The 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, the Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate Proceedings. Any such
action shall be without prejudice to any right to claim a Default or Event of
Default under this Indenture and any right to proceed thereafter as provided
in Article V.
SECTION 8.02. Trust Accounts.
(a) On or prior to the Closing Date, the Issuer shall cause the Servicer
to establish and maintain, in the name of the Indenture Trustee, for the
benefit of the Noteholders
49
and, in the case of the Collection Account, the Certificateholders, the Trust
Accounts as provided in Section 5.01 of the Sale and Servicing Agreement.
(b) The Issuer shall cause the Servicer to deposit all amounts received
in respect of the Receivables (other than Repurchased Receivables) in the
Collection Account as provided in Section 5.02(a) of the Sale and Servicing
Agreement. On or before each Distribution Date, all amounts required to be
deposited in the Note Interest Distribution Account and the Principal
Distribution Account with respect to the related Collection Period pursuant to
Section 5.06(b) of the Sale and Servicing Agreement will be transferred from
the Collection Account to the Note Interest Distribution Account or the
Principal Distribution Account, as applicable.
(c) On each Distribution Date and Redemption Date, the Indenture Trustee
shall distribute all amounts on deposit in the Note Interest Distribution
Account to the Noteholders in respect of the Notes to the extent of amounts
due and unpaid on the Notes for interest in the amounts and in the order of
priority set forth in Section 5.06(c) of the Sale and Servicing Agreement
(except as otherwise provided in Section 5.06(e) of the Sale and Servicing
Agreement and Section 5.04(b) hereof).
(d) On each Distribution Date and Redemption Date, the Indenture Trustee
shall distribute all amounts on deposit in the Principal Distribution Account
to the Noteholders in respect of the Notes to the extent of amounts due and
unpaid on the Notes for principal in the amounts and in the order of priority
set forth in Section 5.06(d) of the Sale and Servicing Agreement (except as
otherwise provided in Section 5.06(e) of the Sale and Servicing Agreement and
Section 5.04(b) hereof).
(e) Notwithstanding any other provision of this Article VIII, and subject
to Section 5.04(b):
(i) If the Notes have been accelerated following the occurrence and
during the continuation of an Event of Default specified in Section
5.01(i), 5.01(ii), 5.01(iv) or 5.01(v), the Indenture Trustee shall (w)
transfer, on behalf of the Indenture Trustee, the funds on deposit in the
Collection Account remaining after the application of clauses 5.06(b)(i)
through (iii) of the Sale and Servicing Agreement to the Principal
Distribution Account to the extent necessary to reduce the Outstanding
Amount of all the Class A Notes to zero, or, (x) if the Class A Notes
shall have been paid in full, to transfer the funds on deposit in the
Collection Account remaining after the application of clauses 5.06(b)(i)
through (v) of the Sale and Servicing Agreement to the Principal
Distribution Account to the extent necessary to reduce the Outstanding
Amount of all the Class B Notes to zero, or, (y) if the Class A Notes and
Class B Notes shall have been paid in full, to transfer the funds on
deposit in the Collection Account remaining after the application of
clauses 5.06(b)(i) through (vii) of the Sale and Servicing Agreement to
the Principal Distribution Account to the extent necessary to reduce the
Outstanding Amount of all the Class C Notes to zero, or, (z) if the Class
A Notes, Class B Notes and Class C Notes shall have been paid in full, to
transfer the funds on deposit in the Collection Account remaining after
the application of
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clauses 5.06(b)(i) through (ix) of the Sale and Servicing Agreement to
the Principal Distribution Account to the extent necessary to reduce the
Outstanding Amount of all the Class D Notes to zero. Any amounts
transferred to the Principal Distribution Account pursuant to clause (w)
shall be applied to the repayment of principal of the Class A-1 Notes,
the Class A-2 Notes the Class A-3 Notes and the Class A-4 Notes pro rata
based on the respective Outstanding Amounts of the Class A-1 Notes, the
Class A-2 Notes the Class A-3 Notes and the Class A-4 Notes.
(ii) If the Notes have been accelerated following the occurrence and
during the continuation of an Event of Default specified in Section
5.01(iii), the Indenture Trustee shall transfer the funds on deposit in
the Collection Account remaining after the application of clauses
5.06(b)(i) through (x) of the Sale and Servicing Agreement to the
Principal Distribution Account to the extent necessary to reduce the
principal amount of all the Notes to zero in the order and priority set
forth in Section 5.06(d) of the Sale and Servicing Agreement.
In the case of an event described in clause (i) or (ii), the Holders
of the Certificates will not receive any distributions until the
principal amount and accrued interest on all the Notes has been paid in
full.
SECTION 8.03. General Provisions Regarding Accounts. The Indenture
Trustee shall not in any way be held liable by reason of any insufficiency in
any of the Trust Accounts resulting from any loss on any Eligible Investment
included therein except for losses attributable to the Indenture Trustee's
failure to make payments on such Eligible Investments issued by the Indenture
Trustee, in its commercial capacity as principal obligor and not as trustee,
in accordance with their terms.
SECTION 8.04. Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to Section
6.07, the Indenture Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property from the lien of this
Indenture, or convey the Indenture Trustee's interest in the same, in a manner
and under circumstances that are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture
Trustee as provided in this Article VIII shall be bound to ascertain the
Indenture Trustee's authority, inquire into the satisfaction of any conditions
precedent or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.07
have been paid in full, release any remaining portion of the Trust Estate that
secured the Notes from the lien of this Indenture and release to the Issuer or
any other Person entitled thereto any funds then on deposit in the Trust
Accounts. The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.04(b) only upon receipt by it of an
Issuer Request accompanied by an Officer's Certificate, an Opinion of Counsel
and (if required by the TIA)
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Independent Certificates in accordance with TIA xx.xx. 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.01.
(c) The Issuer agrees, upon request by the Servicer and representation by
the Servicer that it has complied with the procedure in Section 9.01 of the
Sale and Servicing Agreement, to render the Issuer Request to the Indenture
Trustee in accordance with Section 4.04, and take such other actions as are
required in that Section.
SECTION 8.05. Opinion of Counsel. The Indenture Trustee shall receive at
least seven days prior written notice when requested by the Issuer to take any
action pursuant to Section 8.04(b), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of the provisions of this
Indenture; provided, however, that such Opinion of Counsel shall not be
required to express an opinion as to the fair value of the Trust Estate.
Counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Indenture Trustee in connection with any such
action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. 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 (with copy to the Indenture Trustee),
the Issuer and the Indenture Trustee, when authorized by an Issuer Order, at
any time and from time to time, may enter into one or more supplemental
indentures hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure, convey
and confirm unto the Indenture Trustee any property subject or required
to be subjected to the lien of this Indenture, or to subject to the lien
of this Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to the Issuer, and the assumption by
any such successor of the covenants of the Issuer herein and in the Notes
contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein conferred
upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
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(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any
other provision herein or in any supplemental indenture or to make any
other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; provided, that such action
shall not 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; or
(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.
The Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Holders of the Notes but
with prior notice to the Rating Agencies, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner the rights of the Holders of the Notes under
this Indenture; provided, however, that such action shall not, as evidenced by
an Opinion of Counsel, adversely affect in any material respect the interests
of any Noteholder; and each Rating Agency shall have notified the Issuer or
the Indenture Trustee in writing that such action will not result in a
reduction, withdrawal or downgrade of the then-current rating of any Class of
Notes. Notwithstanding anything to the contrary in this Section 9.01(b), if at
the time the Issuer and the Indenture Trustee propose to enter into an
indenture or supplemental indenture under this Section 9.01(b) the Issuer is
required to be a Qualifying SPE in order for the Seller to continue to account
for the transfer of the Receivables as a sale under SFAS 140, then prior to
the time that the Issuer and the Indenture Trustee enter into such indenture
or supplemental indenture the Issuer shall deliver to the Indenture Trustee an
Accountant's Letter which states that the amendments to be effected by such
indenture or supplemental indenture would not "significantly change" (within
the meaning of SFAS 140) the Permitted Activities of the Issuer so as to cause
the Issuer to fail to qualify as a Qualifying SPE.
SECTION 9.02. Supplemental Indentures with Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also
may, with prior notice to the Rating Agencies and with the consent of the
Holders of not less than a majority of the Outstanding Amount of the Notes of
the Controlling Class, by Act of such Holders delivered to the Issuer and the
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
53
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided, however, 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 provisions 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 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
of the Controlling 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 to the
definition of the term "Outstanding" or (y) the definition of
"Controlling Class";
(iv) reduce the percentage of the Outstanding Amount of the Notes or
of the Controlling Class required to direct the Indenture Trustee to
direct the Issuer to sell or liquidate the Trust Estate pursuant to
Section 5.04;
(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 Distribution 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,
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.
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The Indenture Trustee may in its discretion or at the advice of counsel
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. The Indenture Trustee shall not be liable for any such
determination made in good faith.
It shall not be necessary for any Act of Noteholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section, the 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 the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02, shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture and all conditions
precedent have been met and any such reliance shall be binding upon the
Holders of all Notes, whether theretofore or thereafter authenticated and
delivered hereunder. The Indenture Trustee may, but shall not be obligated to,
enter into any such supplemental indenture that affects the Indenture
Trustee's own rights, duties, liabilities or immunities under this Indenture
or otherwise. The Indenture Trustee shall provide a fully executed copy of any
supplemental indentures to this Indenture to each Rating Agency.
SECTION 9.04. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations
of rights, obligations, duties, liabilities and immunities under this
Indenture of the Indenture Trustee, the Paying Agent, the Note Registrar, the
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 9.05. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Note Registrar shall,
bear a notation in form approved by the Note Registrar as to any matter
provided for in such supplemental indenture. If the Issuer or the Note
Registrar shall so determine, new Notes so modified as to conform, in the
opinion of the Note Registrar and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Note Registrar in exchange for Outstanding Notes.
55
SECTION 9.06. 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.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.01. Redemption. The Outstanding Notes are subject to
redemption in whole, but not in part, at the direction of the Servicer or,
under certain circumstances, a Certificateholder evidencing 100% of the
percentage interests in the Certificates pursuant to Section 9.01 of the Sale
and Servicing Agreement, on any Distribution Date on which the Servicer or
such a Certificateholder exercises its option to purchase the Trust Estate
pursuant to said Section 9.01, for a purchase price equal to the Redemption
Price; provided, that the Issuer has available funds sufficient to pay the
Redemption Price. The Servicer or the Issuer shall furnish the Rating Agencies
and the Indenture Trustee notice of such redemption. If the Outstanding Notes
are to be redeemed pursuant to this Section 10.01, the Servicer or a
Certificateholder evidencing 100% of the percentage interests in the
Certificates, as applicable, shall furnish notice of such election to the
Indenture Trustee not later than twenty days prior to the Redemption Date and
shall deposit the Business Day prior to the Redemption Date with the Indenture
Trustee in the Collection Account for distribution by the Indenture Trustee,
the Redemption Price of the Notes to be redeemed, whereupon all such
Outstanding Notes shall be due and payable on the Redemption Date upon the
furnishing of a notice complying with Section 10.02 to each Holder of the
Outstanding Notes.
SECTION 10.02. Form of Redemption Notice. Notice of redemption under
Section 10.01 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, or by facsimile mailed or transmitted not less than ten days
and not more than thirty days prior to the applicable Redemption Date to each
Holder of Outstanding Notes, as of the close of business on the Record Date
preceding the applicable Redemption Date, at such Holder's address or
facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Outstanding Notes are to be surrendered
for payment of the Redemption Price (which shall be the office or agency
of the Issuer to be maintained as provided in Section 3.02); and
(iv) that interest on the Outstanding Notes shall cease to accrue on
the Redemption Date.
Notice of redemption of the Outstanding Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give notice
of redemption, or any defect
56
therein, to any Holder of any Note shall not impair or affect the validity of
the redemption of any other Note.
SECTION 10.03. Notes Payable on Redemption Date. The Outstanding
Notes shall, following notice of redemption as required by Section 10.02
(in the case of redemption pursuant to Section 10.01), on the Redemption
Date become due and payable at the Redemption Price and (unless the
Issuer shall default in the payment of the Redemption Price) no interest
shall accrue on the Redemption Price for any period after the date to
which accrued interest is calculated for purposes of calculating the
Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the Indenture
Trustee, to take any action under any provision of this Indenture, the Issuer
shall furnish to the Indenture Trustee (i) an Officer's Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and (ii) an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with and (iii) (if required by the TIA) an Independent
Certificate from a firm of certified public accountants meeting the applicable
requirements of this Section, 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 the Indenture Trustee that is to be made the basis for the
release of any property or
57
securities subject to the lien of this Indenture, the Issuer shall, in
addition to any obligation imposed in Section 11.01(a) or elsewhere in this
Indenture, furnish to the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such certificate as
to the fair value (within ninety days of such deposit) to the Issuer of the
Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i) above, the
Issuer shall also deliver to the Indenture Trustee an Independent
Certificate as to the same matters, if the fair value to the Issuer of
the securities to be so deposited and of all other such securities made
the basis of any such withdrawal or release since the commencement of the
then-current fiscal year of the Issuer, as set forth in the certificates
delivered pursuant to clause (i) above and this clause (ii), is 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 the 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) Whenever any property or securities are to be released from
the lien of this Indenture, the Issuer shall also furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within ninety days of such release) of the property or securities
proposed to be released and stating that in the opinion of such person
the proposed release will not impair the security under this Indenture in
contravention of the provisions hereof.
(iv) Other than with respect to the release of any Repurchased
Receivable, whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (iii) above, the
Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than property as contemplated
by clause (v) below, or securities released from the lien of this
Indenture since the commencement of the then-current calendar year, as
set forth in the certificates required by clause (iii) above and this
clause (iv), equals 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 4.04 or any other provision of this
Section, the Issuer may, without compliance with the requirements of the
other provisions of this Section, (A) collect, liquidate, sell or
otherwise dispose of Receivables and Financed Vehicles as and to the
extent permitted or required by the Basic Documents and (B) make cash
payments out of the Trust Accounts as and to the extent permitted or
required by the Basic Documents.
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SECTION 11.02. Form of Documents Delivered to Indenture Trustee. 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.
Any certificate or opinion of an Authorized Officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Servicer, the Seller or the Issuer, stating that
the information with respect to such factual matters is in the possession of
the Servicer, the Seller or the 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.
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.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application
or at the effective date of such certificate or report (as the case may be),
of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application
granted or to the sufficiency of such certificate or report. The foregoing
shall not, however, be construed to affect the Indenture Trustee's right to
rely upon the truth and accuracy of any statement or opinion contained in any
such document as provided in Article VI.
SECTION 11.03. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and except as herein otherwise expressly provided
such action shall become effective when such instrument or instruments are
delivered to the Indenture Trustee and, where it is hereby expressly required,
to the Issuer. Such instrument or instruments (and the action embodied 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
59
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the 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
the Indenture Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
SECTION 11.04. Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture shall be in writing and, if such request, demand, authorization,
direction, notice, consent, waiver or act of Noteholders is to be made upon,
given or furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by the Issuer, shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Indenture Trustee at its Corporate Trust
Office; or
(ii) the Issuer by the Indenture Trustee or by any Noteholder, shall
be sufficient for every purpose hereunder if in writing and mailed
first-class, postage prepaid to the Issuer addressed to: Xxxxxx Xxxxxxx
Auto Loan Trust 2004-HB1, in care of Wilmington Trust Company, as Owner
Trustee, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration, or at any
other address previously furnished in writing to the Indenture Trustee by
the Issuer. The Issuer shall promptly transmit any notice received by it
from the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally
delivered or mailed by certified mail, return receipt requested, to (i) in the
case of Moody's, at the following address: Xxxxx'x Investors Service, Inc.,
ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (ii) in
the case of Standard & Poor's, at the following address: Standard & Poor's, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Asset Backed Surveillance Department and (iii) in the
case of Fitch, at the following address: Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxx; or as to each of the
foregoing, at such other address as shall be designated by written notice to
the other parties.
SECTION 11.05. Notices to Noteholders; Waiver. 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 such Holder's address as it appears on the Note Register,
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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.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a result
of a strike, work stoppage or similar activity, it shall be impractical to
mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed
to be a sufficient giving of such notice.
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 11.06. 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 11.07. Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee
in this Indenture shall bind their respective successors, co-trustees and
agents.
SECTION 11.08. Separability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 11.09. Benefits of Indenture. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto (including Xxxxx Fargo Bank, National Association in its capacities as
Note Registrar and Paying Agent) 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 11.10. 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.
61
SECTION 11.11. Governing Law. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12. 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 11.13. Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and upon request and at the expense of the Servicer
accompanied by an Opinion of Counsel (which may be counsel to the Servicer or
any other counsel reasonably acceptable to the Indenture Trustee) to the
effect that such recording is necessary either for the protection of the
Noteholders or any other Person secured hereunder or for the enforcement of
any right or remedy granted to the Indenture Trustee under this Indenture.
SECTION 11.14. Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under this Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against (i) the Indenture Trustee, the Note Registrar, the Paying Agent or the
Owner Trustee in its individual capacity, (ii) any owner or holder of a
beneficial interest in the Issuer, including the Seller, or (iii) any partner,
owner, beneficiary, agent, officer, director, employee or agent of the
Indenture Trustee, the Note Registrar, the Paying Agent or the Owner Trustee
in its individual capacity, any holder of a beneficial interest, the Owner
Trustee, the Note Registrar, the Paying Agent or the Indenture Trustee or of
any successor or assign of the Indenture Trustee, the Note Registrar, the
Paying Agent or the Owner Trustee in their individual capacities, except as
any such Person may have expressly agreed (it being understood that the
Indenture Trustee, the Note Registrar, the Paying Agent and the Owner Trustee
have no such obligations in their individual capacities). For all purposes of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Article VI, VII and VIII of the Trust
Agreement.
SECTION 11.15. No Petition. The 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 the Issuer or the Depositor,
or join in any institution against the Issuer or the Depositor, of any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the other Basic Documents.
SECTION 11.16. Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers,
62
employees and Independent certified public accountants, all at such reasonable
times and as often as may be reasonably requested; provided, however, that the
Indenture Trustee may only cause the books of the Issuer to be audited on an
annual basis, unless there occurs an Event of Default hereunder. The Indenture
Trustee shall cause its respective representatives to, hold in confidence all
such information except to the extent such information is publicly available
or such disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine with the advice of counsel and
after consultation with the Issuer that such disclosure is consistent with its
obligations hereunder.
SECTION 11.17. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required
or deemed to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required or deemed provision shall control.
The provisions of TIA xx.xx. 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 11.18. Limitation of Liability. It is expressly understood and
agreed by the parties hereto that (a) this Indenture is executed and delivered
by Wilmington Trust Company, not individually or personally but solely as
Owner Trustee of Xxxxxx Xxxxxxx Auto Loan Trust 2004-HB1, in the exercise of
the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the
purpose for binding only the Issuer, (c) nothing herein contained shall be
construed as creating any liability on Wilmington Trust Company, individually
or personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties
hereto and by any Person claiming by, through or under the parties hereto and
(d) under no circumstances shall Wilmington Trust Company be personally liable
for the payment of any indebtedness or expenses of the Issuer or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Issuer under this Indenture or any other related
documents.
* * * * *
63
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this
Indenture to be duly executed by their respective officers, thereunto duly
authorized and duly attested, all as of the day and year first above written.
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1,
By: Wilmington Trust Company, not in
its individual capacity but solely
as Owner Trustee
By: ____________________________________
Name:
Title:
Xxxxx Fargo Bank, National Association,
as Indenture Trustee
By:______________________________________
Name:
Title:
64
SCHEDULE A
Schedule of Receivables
[On file with the Indenture Trustee]
Sch. A-1
SCHEDULE B
Perfection Representation
1. General. The Indenture creates a valid and continuing security
interest (as defined in the UCC) in all of the Issuer's right, title and
interest in and to the Receivables in favor of the Trustee which, (a) is
enforceable upon execution of the Indenture against creditors of and
purchasers from the Issuer as such enforceability may be limited by applicable
debtor relief laws, now or hereafter in effect, and by general principles of
equity (whether considered in a suit at law or in equity), and (b) upon filing
of the financing statements described in clause 4 below will be prior to all
other Liens (other than Liens permitted pursuant to clause 3 below).
2. Characterization. The Receivables constitute "tangible chattel paper"
within the meaning of UCC Section 9-102. The Issuer has taken all steps
necessary to perfect its security interest against the Obligor in the Financed
Vehicles securing the Receivables.
3. Creation. Immediately prior to the conveyance of the Receivables
pursuant to the Indenture, the Issuer owns and has good and marketable title
to, or has a valid security interest in, the Receivables free and clear of any
Lien, claim or encumbrance of any Person.
4. Perfection. The Issuer has caused or will have caused, within ten days
of the Closing Date, the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable law in
order to perfect the security interest granted to the Indenture Trustee under
the Indenture in the Receivables.
5. Priority. Other than the security interests granted to the Indenture
Trustee pursuant to the Indenture, the Issuer has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Receivables,
the Issuer has not authorized the filing of and is not aware of any financing
statements against the Issuer that includes a description of collateral
covering the Receivables other than any financing statement (i) relating to
the security interests granted to the Indenture Trustee under the Indenture
(ii) that has been terminated, or (iii) that has been granted pursuant to the
terms of the Basic Documents. None of the tangible chattel paper that
constitutes or evidences the Receivables has any marks or notations indicating
that they are pledged, assigned or otherwise conveyed to any Person other than
the Indenture Trustee, except the xxxx noting the transfer to the Seller.
Sch. B-1
EXHIBIT A-1
[FORM OF CLASS A-1 NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, 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 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.
BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER OF THIS NOTE AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT TO THE ISSUER AND TO
THE INDENTURE TRUSTEE THAT (i) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA OR SIMILAR LAW, (B) PLAN
(AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975
OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS OR XXXXX
PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN SUCH ENTITY, INCLUDING, WITHOUT LIMITATION, AS
APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT OR (ii) ITS ACQUISITION AND
HOLDING OF THE NOTE EITHER SATISFIES ALL REQUIREMENTS FOR EXEMPTIVE RELIEF
PURSUANT TO A DEPARTMENT OF LABOR PROHIBITED TRANSACTION EXEMPTION OR OTHER
APPLICABLE EXEMPTION, OR WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR
LAW. ANY ATTEMPTED OR PURPORTED TRANSFER OF A NOTE WITH RESPECT TO WHICH
NEITHER OF THE FOREGOING REPRESENTATIONS IS TRUE SHALL BE VOID AB INITIO.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN INTEREST IN
XXXXXX XXXXXXX ABS CAPITAL II INC., XXXXXX XXXXXXX ASSET FUNDING, INC. OR ANY
OF THEIR AFFILIATES.
Exh. A-1-1
REGISTERED $__________(1)
No. R-__ CUSIP NO. [ ]
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1
1.33% ASSET BACKED NOTE, CLASS A-1
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to ________, or registered
assigns, the principal sum of [INSERT INITIAL PRINCIPAL AMOUNT OF NOTE]
DOLLARS, payable from time to time on each Distribution Date, from the
Principal Distribution Account, in an amount, if any, of the Class A Principal
Distributable Amount payable in respect of principal on the Class A-1 Notes
pursuant to Section 3.01 of the Indenture dated as of March 31, 2004 (the
"Indenture"), among the Issuer and Xxxxx Fargo Bank, National Association, a
national banking association, as Indenture Trustee (the "Indenture Trustee");
provided, however, that the entire unpaid principal amount of this Note shall
be due and payable on the earlier of May 15, 2006 (the "Class A-1 Final
Scheduled Distribution Date") and the Redemption Date, if any, pursuant to
Section 10.01 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture, which also contains rules as to construction
that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum set forth
above, on each Distribution Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date), subject to certain
limitations contained in the last sentence of Section 3.01 of the Indenture.
Interest on this Note will accrue for each Distribution Date from and
including the 15th day of the preceding calendar month (or, in the case of the
first Distribution Date, from the Closing Date) to and including the 14th day
of the calendar month in which such Distribution Date occurs. 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.
-------------------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Exh. A-1-2
Unless the certificate of authentication hereon has been executed by the
Note Registrar whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
Exh. A-1-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Owner Trustee under the Trust
Agreement
By:____________________________________
Authorized Signatory
Exh. A-1-4
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Note Registrar
By:--------------------------------------
Authorized Signatory
Exh. A-1-5
REVERSE OF CLASS A-1 NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 1.33% Asset Backed Notes, Class A-1 (herein called the
"Class A-1 Notes"), all 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 Holders of the Notes. The Class A-1 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class
A-4 Notes, the Class B Notes, the Class C Notes and the Class D Notes
(collectively, the "Notes") are and will be secured by the collateral pledged
as security therefor as provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each Distribution
Date in an amount described on the face hereof. "Distribution Date" means the
15th day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing June 15, 2004.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the Class A-1 Final Scheduled
Distribution Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee or the
Noteholders evidencing not less than a majority of the Outstanding Amount of
the Controlling Class have declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class A-1 Notes shall be made pro rata to the Class A-1
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Registered Holder of this Note (or one or more Predecessor
Notes) on the Note Register as of the close of business on each Record Date,
except that with respect to Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Distribution Date shall be binding upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Distribution Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date
preceding such Distribution Date by notice mailed or transmitted by facsimile
prior to such Distribution Date, and the amount then due and
Exhibit A-1-6
payable shall be payable only upon presentation and surrender of this Note and
shall specify the place where this Note may be presented and surrendered for
payment.
The Issuer shall pay interest on overdue installments of interest at the
Class A-1 Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding Notes may
be redeemed in whole, but not in part, at the option of the Servicer or, under
certain circumstances, a Certificateholder evidencing 100% of the percentage
interests in the Certificates on any Distribution Date on or after the date on
which the Pool Balance is less than or equal to 10% of the Initial Pool
Balance.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, 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 Note Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in the
Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new
Notes of 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 subject to certain exceptions set forth
in the Indenture.
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 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, the Note Registrar,
the Paying Agent or the Owner Trustee in their individual capacities, (ii) any
owner or holder of a beneficial interest in the Issuer, including the Seller
or (iii) any partner, owner, beneficiary, agent, officer, director or employee
of the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Owner Trustee, the Note Registrar, the Paying Agent or the Indenture
Trustee or of any successor or assign of the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
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 that prior
to the end of the period that is one year and one day after there has been
paid in full all debt issued by any securitization
Exh. A-1-7
vehicle in respect of which the Depositor holds any interest, they will not
institute against the Depositor or the Issuer, or join in, or assist or
encourage others to institute, any institution against the Depositor or the
Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States Federal
or state bankruptcy or similar law.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name this Note is registered (as of the day of determination or as of such
other date as may be specified in the Indenture) as the owner hereof 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 this Note be
overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar,
the Paying Agent or any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes or of the
Controlling Class, on behalf of the Holders of all the Notes, 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 Holder of this Note (or any one or more Predecessor Notes) shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The 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 construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
Exh. A-1-8
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, Xxxxx Fargo Bank, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, the Seller, the
Depositor, the Servicer, or any of their respective partners, beneficiaries,
agents, officers, directors, employees or successors or assigns shall be
personally liable for, nor shall recourse be had to any of them for, the
payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Holder of this Note by its acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case
of an Event of Default under the Indenture, the Holder 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.
Exh. A-1-9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:_______________________ */----------------------------------
Signature Guaranteed:
*/----------------------------------
----------------
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within
Note in every particular, without alteration, enlargement or any
change whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
Exh. X-0-00
XXXXXXX X-0
[FORM OF CLASS A-2 NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, 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 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.
BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER OF THIS NOTE AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT TO THE ISSUER AND TO
THE INDENTURE TRUSTEE THAT (i) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA OR SIMILAR LAW, (B) PLAN
(AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975
OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS OR XXXXX
PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN SUCH ENTITY, INCLUDING, WITHOUT LIMITATION, AS
APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT OR (ii) ITS ACQUISITION AND
HOLDING OF THE NOTE EITHER SATISFIES ALL REQUIREMENTS FOR EXEMPTIVE RELIEF
PURSUANT TO A DEPARTMENT OF LABOR PROHIBITED TRANSACTION EXEMPTION OR OTHER
APPLICABLE EXEMPTION, OR WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR
LAW. ANY ATTEMPTED OR PURPORTED TRANSFER OF A NOTE WITH RESPECT TO WHICH
NEITHER OF THE FOREGOING REPRESENTATIONS IS TRUE SHALL BE VOID AB INITIO.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN INTEREST IN
XXXXXX XXXXXXX ABS CAPITAL II INC., XXXXXX XXXXXXX ASSET FUNDING, INC. OR ANY
OF THEIR AFFILIATES.
Exh. A-2-1
REGISTERED $__________(1)
No. R-___ CUSIP NO. [ ]
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1
1.92% ASSET BACKED NOTE, CLASS A-2
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of [INSERT
INITIAL PRINCIPAL AMOUNT OF NOTE] DOLLARS, payable from time to time on each
Distribution Date, from the Principal Distribution Account, in an amount, if
any, of the Class A Principal Distributable Amount payable in respect of
principal on the Class A-2 Notes pursuant to Section 3.01 of the Indenture
dated as of March 31, 2004 (the "Indenture"), among the Issuer and Xxxxx Fargo
Bank, National Association, a national banking association, as Indenture
Trustee (the "Indenture Trustee"); provided, however, that the entire unpaid
principal amount of this Note shall be due and payable on the earlier of
October 16, 2006 (the "Class A-2 Final Scheduled Distribution Date") and the
Redemption Date, if any, pursuant to Section 10.01 of the Indenture. No
payments of principal of the Class A-2 Notes shall be made until the Class A-1
Notes have been paid in full. Capitalized terms used but not defined herein
are defined in the Indenture, which also contains rules as to construction
that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum set forth
above, on each Distribution Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date), subject to certain
limitations contained in the last sentence of Section 3.01 of the Indenture.
Interest on this Note will accrue for each Distribution Date from and
including the 15th day of the preceding calendar month (or, in the case of the
first Distribution Date, from the Closing Date) to and including the 14th day
of the calendar month in which such Distribution Date occurs. 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.
______________
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Exh. A-2-2
Unless the certificate of authentication hereon has been executed by the
Note Registrar whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
Exh. A-2-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement
By:----------------------------------------
Authorized Signatory
Exh. A-2-4
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: XXXXX FARGO BANK, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Note Registrar
By:-----------------------------------------------
Authorized Signatory
Exh. A-2-5
REVERSE OF CLASS A-2 NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 1.92% Asset Backed Notes, Class A-2 (herein called the
"Class A-2 Notes"), all 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 Holders of the Notes. The Class A-2 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class
A-4 Notes, the Class B Notes, the Class C Notes and the Class D Notes
(collectively, the "Notes") are and will be secured by the collateral pledged
as security therefor as provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each Distribution
Date in an amount described on the face hereof only after the principal on the
Class A-1 Notes is paid in full with respect to such Distribution Date.
"Distribution Date" means the 15th day of each month, or, if any such day is
not a Business Day, the next succeeding Business Day, commencing June 15,
2004. As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Class A-2 Final Scheduled
Distribution Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee or the
Noteholders evidencing not less than a majority of the Outstanding Amount of
the Controlling Class have declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class A-2 Notes shall be made pro rata to the Class A-2
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Registered Holder of this Note (or one or more Predecessor
Notes) on the Note Register as of the close of business on each Record Date,
except that with respect to Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Distribution Date shall be binding upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Distribution Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date
preceding such Distribution Date by notice mailed or transmitted by facsimile
prior to such Distribution Date, and the amount then due and payable shall be
payable only upon presentation and surrender of this Note and shall specify
the place where this Note may be presented and surrendered for payment.
Exh. A-2-6
The Issuer shall pay interest on overdue installments of interest at the
Class A-2 Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding Notes may
be redeemed in whole, but not in part, at the option of the Servicer or, under
certain circumstances, a Certificateholder evidencing 100% of the percentage
interests in the Certificates on any Distribution Date on or after the date on
which the Pool Balance is less than or equal to 10% of the Initial Pool
Balance.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, 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 Note Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in the
Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new
Notes of 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 subject to certain exceptions set forth
in the Indenture.
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 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, the Note Registrar,
the Paying Agent or the Owner Trustee in their individual capacities, (ii) any
owner or holder of a beneficial interest in the Issuer, including the Seller
or (iii) any partner, owner, beneficiary, agent, officer, director or employee
of the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Owner Trustee, the Note Registrar, the Paying Agent or the Indenture
Trustee or of any successor or assign of the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
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 that prior
to the end of the period that is one year and one day after there has been
paid in full all debt issued by any securitization vehicle in respect of which
the Depositor holds any interest, they will not institute against the
Depositor or the Issuer, or join in, or assist or encourage others to
institute, any institution against the Depositor or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency
Exh. A-2-7
or liquidation proceedings, or other proceedings under any United States
Federal or state bankruptcy or similar law.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name this Note is registered (as of the day of determination or as of such
other date as may be specified in the Indenture) as the owner hereof 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 this Note be
overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar,
the Paying Agent or any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes or of the
Controlling Class, on behalf of the Holders of all the Notes, 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 Holder of this Note (or any one or more Predecessor Notes) shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The 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 construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
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,
Exh. A-2-8
to pay the principal of and interest on this Note at the times, place and
rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, Xxxxx Fargo Bank, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, the Seller, the
Depositor, the Servicer, or any of their respective partners, beneficiaries,
agents, officers, directors, employees or successors or assigns shall be
personally liable for, nor shall recourse be had to any of them for, the
payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Holder of this Note by its acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case
of an Event of Default under the Indenture, the Holder 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.
Exh. A-2-9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:_______________________ */-----------------------------------
Signature Guaranteed:
*/-----------------------------------
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within
Note in every particular, without alteration, enlargement or any
change whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
Exh. X-0-00
XXXXXXX X-0
[FORM OF CLASS A-3 NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, 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 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.
BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER OF THIS NOTE AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT TO THE ISSUER AND TO
THE INDENTURE TRUSTEE THAT (i) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA OR SIMILAR LAW, (B) PLAN
(AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975
OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS OR XXXXX
PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN SUCH ENTITY, INCLUDING, WITHOUT LIMITATION, AS
APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT OR (ii) ITS ACQUISITION AND
HOLDING OF THE NOTE EITHER SATISFIES ALL REQUIREMENTS FOR EXEMPTIVE RELIEF
PURSUANT TO A DEPARTMENT OF LABOR PROHIBITED TRANSACTION EXEMPTION OR OTHER
APPLICABLE EXEMPTION, OR WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR
LAW. ANY ATTEMPTED OR PURPORTED TRANSFER OF A NOTE WITH RESPECT TO WHICH
NEITHER OF THE FOREGOING REPRESENTATIONS IS TRUE SHALL BE VOID AB INITIO.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN INTEREST IN
XXXXXX XXXXXXX ABS CAPITAL II INC., XXXXXX XXXXXXX ASSET FUNDING, INC. OR ANY
OF THEIR AFFILIATES.
Exh. A-3-1
REGISTERED $__________(1)
No. R-___ CUSIP NO. [ ]
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1
2.64% ASSET BACKED NOTE, CLASS A-3
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of [INSERT
INITIAL PRINCIPAL AMOUNT OF NOTE] DOLLARS, payable from time to time on each
Distribution Date, from the Principal Distribution Account, in an amount, if
any, of the Class A Principal Distributable Amount payable in respect of
principal on the Class A-3 Notes pursuant to Section 3.01 of the Indenture
dated as of March 31, 2004 (the "Indenture"), among the Issuer and Xxxxx Fargo
Bank, National Association, a national banking association, as Indenture
Trustee (the "Indenture Trustee"); provided, however, that the entire unpaid
principal amount of this Note shall be due and payable on the earlier of
November 15, 2007 (the "Class A-3 Final Scheduled Distribution Date") and the
Redemption Date, if any, pursuant to Section 10.01 of the Indenture. No
payments of principal of the Class A-3 Notes shall be made until the Class A-1
Notes and the Class A-2 Notes have been paid in full. Capitalized terms used
but not defined herein are defined in the Indenture, which also contains rules
as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum set forth
above, on each Distribution Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date), subject to certain
limitations contained in the last sentence of Section 3.01 of the Indenture.
Interest on this Note will accrue for each Distribution Date from and
including the 15th day of the preceding calendar month (or, in the case of the
first Distribution Date, from the Closing Date) to and including the 14th day
of the calendar month in which such Distribution Date occurs. 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.
______________
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Exh. A-3-2
Unless the certificate of authentication hereon has been executed by the
Note Registrar whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
Exh. A-3-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: XXXXXX XXXXXXX AUTO LOAN TRUST-HB1
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By:------------------------------
Authorized Signatory
Exh. A-3-4
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Note Registrar
By:-----------------------------------
Authorized Signatory
Exh. A-3-5
REVERSE OF CLASS A-3 NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 2.64% Asset Backed Notes, Class A-3 (herein called the
"Class A-3 Notes"), all 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 Holders of the Notes. The Class A-3 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class
A-4 Notes, the Class B Notes, the Class C Notes and the Class D Notes
(collectively, the "Notes") are and will be secured by the collateral pledged
as security therefor as provided in the Indenture.
Principal of the Class A-3 Notes will be payable on each Distribution
Date in an amount described on the face hereof only after the principal on the
Class A-1 Notes and the Class A-2 Notes are paid in full with respect to such
Distribution Date. "Distribution Date" means the 15th day of each month, or,
if any such day is not a Business Day, the next succeeding Business Day,
commencing June 15, 2004. As described above, the entire unpaid principal
amount of this Note shall be due and payable on the earlier of the Class A-3
Final Scheduled Distribution Date and the Redemption Date, if any, pursuant to
Section 10.01 of the Indenture. Notwithstanding the foregoing, the entire
unpaid principal amount of the Notes shall be due and payable on the date on
which an Event of Default shall have occurred and be continuing and the
Indenture Trustee or the Noteholders evidencing not less than a majority of
the Outstanding Amount of the Controlling Class have declared the Notes to be
immediately due and payable in the manner provided in Section 5.02 of the
Indenture. All principal payments on the Class A-3 Notes shall be made pro
rata to the Class A-3 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Registered Holder of this Note (or one or more Predecessor
Notes) on the Note Register as of the close of business on each Record Date,
except that with respect to Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Distribution Date shall be binding upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Distribution Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date
preceding such Distribution Date by notice mailed or transmitted by facsimile
prior to such Distribution Date, and the amount then due and payable shall be
payable only upon presentation and surrender of this Note and shall specify
the place where this Note may be presented and surrendered for payment.
Exh. A-3-6
The Issuer shall pay interest on overdue installments of interest at the
Class A-3 Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding Notes may
be redeemed in whole, but not in part, at the option of the Servicer or, under
certain circumstances, a Certificateholder evidencing 100% of the percentage
interests in the Certificates on any Distribution Date on or after the date on
which the Pool Balance is less than or equal to 10% of the Initial Pool
Balance.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, 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 Note Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in the
Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new
Notes of 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 subject to certain exceptions set forth
in the Indenture.
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 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, the Note Registrar,
the Paying Agent or the Owner Trustee in their individual capacities, (ii) any
owner or holder of a beneficial interest in the Issuer, including the Seller
or (iii) any partner, owner, beneficiary, agent, officer, director or employee
of the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Owner Trustee, the Note Registrar, the Paying Agent or the Indenture
Trustee or of any successor or assign of the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
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 that prior
to the end of the period that is one year and one day after there has been
paid in full all debt issued by any securitization vehicle in respect of which
the Depositor holds any interest, they will not institute against the
Depositor or the Issuer, or join in, or assist or encourage others to
institute, any institution against the Depositor or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency
Exh. A-3-7
or liquidation proceedings, or other proceedings under any United States
Federal or state bankruptcy or similar law.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name this Note is registered (as of the day of determination or as of such
other date as may be specified in the Indenture) as the owner hereof 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 this Note be
overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar,
the Paying Agent or any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes or of the
Controlling Class, on behalf of the Holders of all the Notes, 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 Holder of this Note (or any one or more Predecessor Notes) shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The 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 construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
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,
Exh. A-3-8
to pay the principal of and interest on this Note at the times, place and
rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, Xxxxx Fargo Bank, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, the Seller, the
Depositor, the Servicer, or any of their respective partners, beneficiaries,
agents, officers, directors, employees or successors or assigns shall be
personally liable for, nor shall recourse be had to any of them for, the
payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Holder of this Note by its acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case
of an Event of Default under the Indenture, the Holder 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.
Exh. A-3-9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:_______________________ */---------------------------------
Signature Guaranteed:
*/---------------------------------
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within
Note in every particular, without alteration, enlargement or any
change whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
Exh. X-0-00
XXXXXXX X-0
[FORM OF CLASS A-4 NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, 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 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.
BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER OF THIS NOTE AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT TO THE ISSUER AND TO
THE INDENTURE TRUSTEE THAT (i) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA OR SIMILAR LAW, (B) PLAN
(AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975
OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS OR XXXXX
PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN SUCH ENTITY, INCLUDING, WITHOUT LIMITATION, AS
APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT OR (ii) ITS ACQUISITION AND
HOLDING OF THE NOTE EITHER SATISFIES ALL REQUIREMENTS FOR EXEMPTIVE RELIEF
PURSUANT TO A DEPARTMENT OF LABOR PROHIBITED TRANSACTION EXEMPTION OR OTHER
APPLICABLE EXEMPTION, OR WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR
LAW. ANY ATTEMPTED OR PURPORTED TRANSFER OF A NOTE WITH RESPECT TO WHICH
NEITHER OF THE FOREGOING REPRESENTATIONS IS TRUE SHALL BE VOID AB INITIO.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN INTEREST IN
XXXXXX XXXXXXX ABS CAPITAL II INC., XXXXXX XXXXXXX ASSET FUNDING, INC. OR ANY
OF THEIR AFFILIATES.
Exh. A-4-1
REGISTERED $__________(1)
No. R-___ CUSIP NO. [ ]
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1
3.33% ASSET BACKED NOTE, CLASS A-4
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of [INSERT
INITIAL PRINCIPAL AMOUNT OF NOTE] DOLLARS, payable from time to time on each
Distribution Date, from the Principal Distribution Account, in an amount, if
any, of the Class A Principal Distributable Amount payable in respect of
principal on the Class A-4 Notes pursuant to Section 3.01 of the Indenture
dated as of March 31, 2004 (the "Indenture"), among the Issuer and Xxxxx Fargo
Bank, National Association, a national banking association, as Indenture
Trustee (the "Indenture Trustee"); provided, however, that the entire unpaid
principal amount of this Note shall be due and payable on the earlier of
October 17, 2011 (the "Class A-4 Final Scheduled Distribution Date") and the
Redemption Date, if any, pursuant to Section 10.01 of the Indenture. No
payments of principal of the Class A-4 Notes shall be made until the Class A-1
Notes, the Class A-2 Notes and the Class A-3 Notes have been paid in full.
Capitalized terms used but not defined herein are defined in the Indenture,
which also contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum set forth
above, on each Distribution Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date), subject to certain
limitations contained in the last sentence of Section 3.01 of the Indenture.
Interest on this Note will accrue for each Distribution Date from and
including the 15th day of the preceding calendar month (or, in the case of the
first Distribution Date, from the Closing Date) to and including the 14th day
of the calendar month in which such Distribution Date occurs. 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.
________________
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Exh. A-4-2
Unless the certificate of authentication hereon has been executed by the
Note Registrar whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
Exh. A-4-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: XXXXXX XXXXXXX AUTO LOAN
TRUST 2004-HB1
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By:----------------------------------
Authorized Signatory
Exh. A-4-4
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Note Registrar
By:----------------------------------
Authorized Signatory
Exh. A-4-5
REVERSE OF CLASS A-4 NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 3.33% Asset Backed Notes, Class A-4 (herein called the
"Class A-4 Notes"), all 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 Holders of the Notes. The Class A-4 Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class
A-4 Notes, the Class B Notes, the Class C Notes and the Class D Notes
(collectively, the "Notes") are and will be secured by the collateral pledged
as security therefor as provided in the Indenture.
Principal of the Class A-4 Notes will be payable on each Distribution
Date in an amount described on the face hereof only after the principal on the
Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes are paid in full
with respect to such Distribution Date. "Distribution Date" means the 15th day
of each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing June 15, 2004. As described above, the entire unpaid
principal amount of this Note shall be due and payable on the earlier of the
Class A-4 Final Scheduled Distribution Date and the Redemption Date, if any,
pursuant to Section 10.01 of the Indenture. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes shall be due and payable on the
date on which an Event of Default shall have occurred and be continuing and
the Indenture Trustee or the Noteholders evidencing not less than a majority
of the Outstanding Amount of the Controlling Class have declared the Notes to
be immediately due and payable in the manner provided in Section 5.02 of the
Indenture. All principal payments on the Class A-4 Notes shall be made pro
rata to the Class A-4 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Registered Holder of this Note (or one or more Predecessor
Notes) on the Note Register as of the close of business on each Record Date,
except that with respect to Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Distribution Date shall be binding upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Distribution Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date
preceding such Distribution Date by notice mailed or transmitted by facsimile
prior to such Distribution Date, and the amount then due and payable shall be
payable only upon presentation and surrender of this Note and shall specify
the place where this Note may be presented and surrendered for payment.
Exh. A-4-6
The Issuer shall pay interest on overdue installments of interest at the
Class A-4 Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding Notes may
be redeemed in whole, but not in part, at the option of the Servicer or, under
certain circumstances, a Certificateholder evidencing 100% of the percentage
interests in the Certificates on any Distribution Date on or after the date on
which the Pool Balance is less than or equal to 10% of the Initial Pool
Balance.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, 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 Note Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in the
Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new
Notes of 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 subject to certain exceptions set forth
in the Indenture.
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 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, the Note Registrar,
the Paying Agent or the Owner Trustee in their individual capacities, (ii) any
owner or holder of a beneficial interest in the Issuer, including the Seller
or (iii) any partner, owner, beneficiary, agent, officer, director or employee
of the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Owner Trustee, the Note Registrar, the Paying Agent or the Indenture
Trustee or of any successor or assign of the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
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 that prior
to the end of the period that is one year and one day after there has been
paid in full all debt issued by any securitization vehicle in respect of which
the Depositor holds any interest, they will not institute against the
Depositor or the Issuer, or join in, or assist or encourage others to
institute, any institution against the Depositor or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency
Exh. A-4-7
or liquidation proceedings, or other proceedings under any United States
Federal or state bankruptcy or similar law.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name this Note is registered (as of the day of determination or as of such
other date as may be specified in the Indenture) as the owner hereof 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 this Note be
overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar,
the Paying Agent or any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes or of the
Controlling Class, on behalf of the Holders of all the Notes, 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 Holder of this Note (or any one or more Predecessor Notes) shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The 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 construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
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,
Exh. A-4-8
to pay the principal of and interest on this Note at the times, place and
rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, Xxxxx Fargo Bank, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, the Seller, the
Depositor, the Servicer, or any of their respective partners, beneficiaries,
agents, officers, directors, employees or successors or assigns shall be
personally liable for, nor shall recourse be had to any of them for, the
payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Holder of this Note by its acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case
of an Event of Default under the Indenture, the Holder 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.
Exh. A-4-9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-----------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:_______________________ */-----------------------------------
Signature Guaranteed:
*/-----------------------------------
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within
Note in every particular, without alteration, enlargement or any
change whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
Exh. A-4-10
EXHIBIT B
[FORM OF CLASS B NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, 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 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.
BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER OF THIS NOTE AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT TO THE ISSUER AND TO
THE INDENTURE TRUSTEE THAT (i) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA OR SIMILAR LAW, (B) PLAN
(AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975
OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS OR XXXXX
PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN SUCH ENTITY, INCLUDING, WITHOUT LIMITATION, AS
APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT OR (ii) ITS ACQUISITION AND
HOLDING OF THE NOTE EITHER SATISFIES ALL REQUIREMENTS FOR EXEMPTIVE RELIEF
PURSUANT TO A DEPARTMENT OF LABOR PROHIBITED TRANSACTION EXEMPTION OR OTHER
APPLICABLE EXEMPTION, OR WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR
LAW. ANY ATTEMPTED OR PURPORTED TRANSFER OF A NOTE WITH RESPECT TO WHICH
NEITHER OF THE FOREGOING REPRESENTATIONS IS TRUE SHALL BE VOID AB INITIO.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN INTEREST IN
XXXXXX XXXXXXX ABS CAPITAL II INC., XXXXXX XXXXXXX ASSET FUNDING, INC. OR ANY
OF THEIR AFFILIATES.
Exh. B-1
REGISTERED $__________(1)
No. R-___ CUSIP NO. [ ]
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1
3.05% ASSET BACKED NOTE, CLASS B
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of [INSERT
INITIAL PRINCIPAL AMOUNT OF NOTE] DOLLARS, payable from time to time on each
Distribution Date, from the Principal Distribution Account, in an amount, if
any, of the Class B Principal Distributable Amount payable in respect of
principal on the Class B Notes pursuant to Section 3.01 of the Indenture dated
as of March 31, 2004 (the "Indenture"), among the Issuer and Xxxxx Fargo Bank,
National Association, a national banking association, as Indenture Trustee
(the "Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of October 17,
2011 (the "Class B Final Scheduled Distribution Date") and the Redemption
Date, if any, pursuant to Section 10.01 of the Indenture. The Class B Notes
are subordinated to the Class A Notes as and to the extent set forth in the
Indenture. Capitalized terms used but not defined herein are defined in the
Indenture, which also contains rules as to construction that shall be
applicable herein.
The Issuer will pay interest on this Note at the rate per annum set forth
above, on each Distribution Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date), subject to certain
limitations contained in the last sentence of Section 3.01 of the Indenture.
Interest on this Note will accrue for each Distribution Date from and
including the 15th day of the preceding calendar month (or, in the case of the
first Distribution Date, from the Closing Date) to and including the 14th day
of the calendar month in which such Distribution Date occurs. 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.
-------------------
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Exh. B-2
Unless the certificate of authentication hereon has been executed by the
Note Registrar whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
Exh. B-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: XXXXXX XXXXXXX AUTO LOAN TRUST
2004-HB1
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:----------------------------------
Authorized Signatory
Exh. B-4
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Note Registrar
By:-----------------------------------
Authorized Signatory
Exh. B-5
REVERSE OF CLASS B NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 3.05% Asset Backed Notes, Class B (herein called the "Class
B Notes"), all 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 Holders of the Notes. The Class B Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class
A-4 Notes, the Class B Notes, the Class C Notes and the Class D Notes
(collectively, the "Notes") are and will be secured by the collateral pledged
as security therefor as provided in the Indenture. The Class B Notes are
subordinated in right of payment to the Class A Notes as and to the extent
provided in the Indenture.
Principal of the Class B Notes will be payable on each Distribution Date
in an amount described on the face hereof only after principal on the Class A
Notes has been paid in full with respect to such Distribution Date are paid in
full. "Distribution Date" means the 15th day of each month, or, if any such
day is not a Business Day, the next succeeding Business Day, commencing June
15, 2004.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the Class B Final Scheduled Distribution
Date and the Redemption Date, if any, pursuant to Section 10.01 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the
Noteholders evidencing not less than a majority of the Outstanding Amount of
the Controlling Class have declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class B Notes shall be made pro rata to the Class B
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Registered Holder of this Note (or one or more Predecessor
Notes) on the Note Register as of the close of business on each Record Date,
except that with respect to Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Distribution Date shall be binding upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Distribution Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the
Exh. B-6
Registered Holder hereof as of the Record Date preceding such Distribution
Date by notice mailed or transmitted by facsimile prior to such Distribution
Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Note and shall specify the place where this
Note may be presented and surrendered for payment.
The Issuer shall pay interest on overdue installments of interest at the
Class B Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding Notes may
be redeemed in whole, but not in part, at the option of the Servicer or, under
certain circumstances, a Certificateholder evidencing 100% of the percentage
interests in the Certificates on any Distribution Date on or after the date on
which the Pool Balance is less than or equal to 10% of the Initial Pool
Balance.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, 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 Note Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in the
Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new
Notes of 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 subject to certain exceptions set forth
in the Indenture.
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 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, the Note Registrar,
the Paying Agent or the Owner Trustee in their individual capacities, (ii) any
owner or holder of a beneficial interest in the Issuer, including the Seller
or (iii) any partner, owner, beneficiary, agent, officer, director or employee
of the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Owner Trustee, the Note Registrar, the Paying Agent or the Indenture
Trustee or of any successor or assign of the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
Exh. B-7
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 that prior
to the end of the period that is one year and one day after there has been
paid in full all debt issued by any securitization vehicle in respect of which
the Depositor holds any interest, they will not institute against the
Depositor or the Issuer, or join in, or assist or encourage others to
institute, any institution against the Depositor or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name this Note is registered (as of the day of determination or as of such
other date as may be specified in the Indenture) as the owner hereof 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 this Note be
overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar,
the Paying Agent or any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes or of the
Controlling Class, on behalf of the Holders of all the Notes, 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 Holder of this Note (or any one or more Predecessor Notes) shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
Exh. B-8
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, Xxxxx Fargo Bank, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, the Seller, the
Depositor, the Servicer, or any of their respective partners, beneficiaries,
agents, officers, directors, employees or successors or assigns shall be
personally liable for, nor shall recourse be had to any of them for, the
payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Holder of this Note by its acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case
of an Event of Default under the Indenture, the Holder 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.
Exh. B-9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:_______________________ */-------------------------------
Signature Guaranteed:
*/-------------------------------
_____________
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within
Note in every particular, without alteration, enlargement or any
change whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
Exh. B-10
EXHIBIT C
[FORM OF CLASS C NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK CORPORATION, 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 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.
BY ITS ACCEPTANCE OF THIS NOTE, THE HOLDER OF THIS NOTE AND ANY
SUBSEQUENT TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT TO THE ISSUER AND TO
THE INDENTURE TRUSTEE THAT (i) IT IS NOT AND IS NOT ACTING ON BEHALF OF OR
INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION
3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA OR SIMILAR LAW, (B) PLAN
(AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS SUBJECT TO SECTION 4975
OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS OR XXXXX
PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A PLAN'S INVESTMENT IN SUCH ENTITY, INCLUDING, WITHOUT LIMITATION, AS
APPLICABLE, AN INSURANCE COMPANY GENERAL ACCOUNT OR (ii) ITS ACQUISITION AND
HOLDING OF THE NOTE EITHER SATISFIES ALL REQUIREMENTS FOR EXEMPTIVE RELIEF
PURSUANT TO A DEPARTMENT OF LABOR PROHIBITED TRANSACTION EXEMPTION OR OTHER
APPLICABLE EXEMPTION, OR WILL NOT RESULT IN A NON-EXEMPT VIOLATION OF SIMILAR
LAW. ANY ATTEMPTED OR PURPORTED TRANSFER OF A NOTE WITH RESPECT TO WHICH
NEITHER OF THE FOREGOING REPRESENTATIONS IS TRUE SHALL BE VOID AB INITIO.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN INTEREST IN
XXXXXX XXXXXXX ABS CAPITAL II INC., XXXXXX XXXXXXX ASSET FUNDING, INC. OR ANY
OF THEIR AFFILIATES.
Exh. C-1
REGISTERED $__________(1)
No. R-___ CUSIP NO. [ ]
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1
2.88% ASSET BACKED NOTE, CLASS C
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of [INSERT
INITIAL PRINCIPAL AMOUNT OF NOTE] DOLLARS, payable from time to time on each
Distribution Date, from the Principal Distribution Account, in an amount, if
any, of the Class C Principal Distributable Amount payable in respect of
principal on the Class C Notes pursuant to Section 3.01 of the Indenture dated
as of March 31, 2004 (the "Indenture"), among the Issuer and Xxxxx Fargo Bank,
National Association, a national banking association, as Indenture Trustee
(the "Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of October 17,
2011 (the "Class C Final Scheduled Distribution Date") and the Redemption
Date, if any, pursuant to Section 10.01 of the Indenture. The Class C Notes
are subordinated to the Class A Notes and the Class B Notes as and to the
extent set forth in the Indenture. Capitalized terms used but not defined
herein are defined in the Indenture, which also contains rules as to
construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum set forth
above, on each Distribution Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date), subject to certain
limitations contained in the last sentence of Section 3.01 of the Indenture.
Interest on this Note will accrue for each Distribution Date from and
including the 15th day of the preceding calendar month (or, in the case of the
first Distribution Date, from the Closing Date) to and including the 14th day
of the calendar month in which such Distribution Date occurs. 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.
_______________
(1) Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Exh. C-2
Unless the certificate of authentication hereon has been executed by the
Note Registrar whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
Exh. C-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: XXXXXX XXXXXXX AUTO LOAN TRUST
2004-HB1
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:-----------------------------------
Authorized Signatory
Exh. C-4
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Note Registrar
By:-----------------------------------
Authorized Signatory
Exh. C-5
REVERSE OF CLASS C NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 2.88% Asset Backed Notes, Class C (herein called the "Class
C Notes"), all 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 Holders of the Notes. The Class C Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class
A-4 Notes, the Class B Notes, the Class C Notes and the Class D Notes
(collectively, the "Notes") are and will be 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 Distribution Date
in an amount described on the face hereof only after the principal on the
Class A Notes and the Class B Notes has been paid in full for such
Distribution Date. "Distribution Date" means the 15th day of each month, or,
if any such day is not a Business Day, the next succeeding Business Day,
commencing June 15, 2004.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the Class C Final Scheduled Distribution
Date and the Redemption Date, if any, pursuant to Section 10.01 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the
Noteholders evidencing not less than a majority of the Outstanding Amount of
the Controlling Class have declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class C Notes shall be made pro rata to the Class C
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Registered Holder of this Note (or one or more Predecessor
Notes) on the Note Register as of the close of business on each Record Date,
except that with respect to Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Distribution Date shall be binding upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Distribution Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the
Exh. C-6
Registered Holder hereof as of the Record Date preceding such Distribution
Date by notice mailed or transmitted by facsimile prior to such Distribution
Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Note and shall specify the place where this
Note may be presented and surrendered for payment.
The Issuer shall pay interest on overdue installments of interest at the
Class C Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding Notes may
be redeemed in whole, but not in part, at the option of the Servicer or, under
certain circumstances, a Certificateholder evidencing 100% of the percentage
interests in the Certificates on any Distribution Date on or after the date on
which the Pool Balance is less than or equal to 10% of the Initial Pool
Balance.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, 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 Note Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in the
Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new
Notes of 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 subject to certain exceptions set forth
in the Indenture.
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 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, the Note Registrar,
the Paying Agent or the Owner Trustee in their individual capacities, (ii) any
owner or holder of a beneficial interest in the Issuer, including the Seller
or (iii) any partner, owner, beneficiary, agent, officer, director or employee
of the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Owner Trustee, the Note Registrar, the Paying Agent or the Indenture
Trustee or of any successor or assign of the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
Exh. C-7
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 that prior
to the end of the period that is one year and one day after there has been
paid in full all debt issued by any securitization vehicle in respect of which
the Depositor holds any interest, they will not institute against the
Depositor or the Issuer, or join in, or assist or encourage others to
institute, any institution against the Depositor or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name this Note is registered (as of the day of determination or as of such
other date as may be specified in the Indenture) as the owner hereof 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 this Note be
overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar,
the Paying Agent or any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes or of the
Controlling Class, on behalf of the Holders of all the Notes, 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 Holder of this Note (or any one or more Predecessor Notes) shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
Exh. C-8
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, Xxxxx Fargo Bank, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, the Seller, the
Depositor, the Servicer, or any of their respective partners, beneficiaries,
agents, officers, directors, employees or successors or assigns shall be
personally liable for, nor shall recourse be had to any of them for, the
payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Holder of this Note by its acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case
of an Event of Default under the Indenture, the Holder 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.
Exh. C-9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-----------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:_______________________ */------------------------------
Signature Guaranteed:
*/------------------------------
----------------
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within
Note in every particular, without alteration, enlargement or any
change whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
Exh. C-10
EXHIBIT D
[FORM OF CLASS D NOTE]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR 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.]
THIS CLASS D NOTE ("CLASS D NOTE") HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (the "SECURITIES
ACT"), OR THE APPLICABLE SECURITIES LAWS OF ANY STATE. ACCORDINGLY, TRANSFER
OF THIS CLASS D NOTE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN SECTION
2.04 OF THE INDENTURE. BY ITS ACCEPTANCE OF THIS CLASS D NOTE, THE HOLDER OF
THIS CLASS D NOTE IS DEEMED TO REPRESENT TO THE DEPOSITOR AND THE INDENTURE
TRUSTEE THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (A "QIB"), AS SUCH TERM
IS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") AND IS
ACQUIRING THIS CLASS D NOTE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QIBS).
NO SALE, PLEDGE OR OTHER TRANSFER OF A NOTE SHALL BE MADE UNLESS SUCH
SALE, PLEDGE OR OTHER TRANSFER IS (I)(A) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THE
TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A QIB THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (C) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
AND (II) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND ANY OTHER RELEVANT JURISDICTION. EACH TRANSFEREE OF A
BENEFICIAL INTEREST IN THIS NOTE SHALL BE DEEMED TO MAKE THE FOREGOING
REPRESENTATIONS. THE DEPOSITOR AND THE INDENTURE TRUSTEE MAY REQUIRE AN
OPINION OF COUNSEL TO BE DELIVERED TO IT IN CONNECTION WITH ANY TRANSFER OF
THE NOTES PURSUANT TO CLAUSES (I)(A) OR (C) ABOVE. EACH TRANSFEREE OF A
BENEFICIAL INTEREST IN THIS NOTE SHALL BE DEEMED TO MAKE THE FOREGOING
REPRESENTATIONS.
Exh. D-1
BY ITS ACCEPTANCE OF THIS CLASS D NOTE, THE HOLDER AND ANY SUBSEQUENT
TRANSFEREE IS DEEMED TO REPRESENT AND WARRANT THAT IT IS NOT AND IS NOT ACTING
ON BEHALF OF OR INVESTING THE ASSETS OF ANY (A) EMPLOYEE BENEFIT PLAN (AS
DEFINED IN SECTION 3(3) OF ERISA) THAT IS SUBJECT TO TITLE I OF ERISA OR
SIMILAR LAW, (B) PLAN (AS DEFINED IN SECTION 4975(E)(1) OF THE CODE) THAT IS
SUBJECT TO SECTION 4975 OF THE CODE OR SIMILAR LAW, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS OR XXXXX PLANS, OR (C) ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY,
INCLUDING, WITHOUT LIMITATION, AS APPLICABLE, AN INSURANCE COMPANY GENERAL
ACCOUNT.
THE PROVIDING OF INFORMATION RELATING TO THE HUNTINGTON NATIONAL BANK AND
THE RECEIVABLES TO PERSONS INVESTING IN THIS CLASS D NOTE IS LIMITED BY AND IS
SUBJECT TO THE TERMS OF SECTION 9.01(b)(III) OF THE PURCHASE AND SERVICING
AGREEMENT, DATED AS OF FEBRUARY 29, 2004, BETWEEN THE HUNTINGTON NATIONAL BANK
AND XXXXXX XXXXXXX ASSET FUNDING, INC.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR AN INTEREST IN
XXXXXX XXXXXXX ABS CAPITAL II INC., XXXXXX XXXXXXX ASSET FUNDING, INC. OR ANY
OF THEIR AFFILIATES.
Exh. D-2
REGISTERED $__________(1)
No. R-___ CUSIP NO. [ ]
ISIN NO. [ ]
XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1
5.50% ASSET BACKED NOTE, CLASS D
MORGAN XXXXXXX AUTO LOAN TRUST 2004-HB1, a statutory trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of [INSERT
INITIAL PRINCIPAL AMOUNT OF NOTE] DOLLARS, payable from time to time on each
Distribution Date, from the Principal Distribution Account, in an amount, if
any, of the Class D Principal Distributable Amount payable in respect of
principal on the Class D Notes pursuant to Section 3.01 of the Indenture dated
as of March 31, 2004 (the "Indenture"), among the Issuer and Xxxxx Fargo Bank,
National Association, a national banking association, as Indenture Trustee
(the "Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of October 17,
2011 (the "Class D Final Scheduled Distribution Date") and the Redemption
Date, if any, pursuant to Section 10.01 of the Indenture. The Class D Notes
are subordinated to the Class A Notes, the Class B Notes and the Class C Notes
as and to the extent set forth in the Indenture. Capitalized terms used but
not defined herein are defined in the Indenture, which also contains rules as
to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the rate per annum set forth
above, on each Distribution Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding
on the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date), subject to certain
limitations contained in the last sentence of Section 3.01 of the Indenture.
Interest on this Note will accrue for each Distribution Date from and
including the 15th day of the preceding calendar month (or, in the case of the
first Distribution Date, from the Closing Date) to and including the 14th day
of the calendar month in which such Distribution Date occurs. 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.
-------------------
(1) Denominations of $25,000 and integral multiples of $1,000 in excess thereof.
Xxx. X-0
Unless the certificate of authentication hereon has been executed by the
Note Registrar whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
Exh. D-4
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: XXXXXX XXXXXXX AUTO LOAN TRUST 2004-HB1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner Trustee
under the Trust Agreement
By:----------------------------------
Authorized Signatory
Exh. D-5
CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: XXXXX FARGO BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Note Registrar
By:----------------------------------
Authorized Signatory
Exh. D-6
REVERSE OF CLASS D NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 5.50% Asset Backed Notes, Class D (herein called the "Class
D Notes"), all 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 Holders of the Notes. The Class D Notes are subject to all
terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class
A-4 Notes, the Class B Notes, the Class C Notes and the Class D Notes
(collectively, the "Notes") are and will be secured by the collateral pledged
as security therefor as provided in the Indenture. The Class D Notes are
subordinated in right of payment to the Class A Notes, the Class B Notes and
the Class C Notes as and to the extent provided in the Indenture.
Principal of the Class D Notes will be payable on each Distribution Date
in an amount described on the face hereof only after principal on the Class A
Notes, the Class B Notes and the Class C Notes has been paid in full for such
Distribution Date. "Distribution Date" means the 15th day of each month, or,
if any such day is not a Business Day, the next succeeding Business Day,
commencing June 15, 2004.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the Class D Final Scheduled Distribution
Date and the Redemption Date, if any, pursuant to Section 10.01 of the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount
of the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the
Noteholders evidencing not less than a majority of the Outstanding Amount of
the Controlling Class have declared the Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class D Notes shall be made pro rata to the Class D
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Registered Holder of this Note (or one or more Predecessor
Notes) on the Note Register as of the close of business on each Record Date,
except that with respect to Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Distribution Date shall be binding upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Distribution Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the
Exh. D-7
Registered Holder hereof as of the Record Date preceding such Distribution
Date by notice mailed or transmitted by facsimile prior to such Distribution
Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Note and shall specify the place where this
Note may be presented and surrendered for payment.
The Issuer shall pay interest on overdue installments of interest at the
Class D Rate to the extent lawful.
As provided in Section 10.01 of the Indenture, the Outstanding Notes may
be redeemed in whole, but not in part, at the option of the Servicer or, under
certain circumstances, a Certificateholder evidencing 100% of the percentage
interests in the Certificates on any Distribution Date on or after the date on
which the Pool Balance is less than or equal to 10% of the Initial Pool
Balance.
As provided in the Indenture and subject to the limitations set forth
therein and on the face hereof, 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 Note Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, with such signature guaranteed
by an "eligible guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in the
Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new
Notes of 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 subject to certain exceptions set forth
in the Indenture.
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 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, the Note Registrar,
the Paying Agent or the Owner Trustee in their individual capacities, (ii) any
owner or holder of a beneficial interest in the Issuer, including the Seller
or (iii) any partner, owner, beneficiary, agent, officer, director or employee
of the Indenture Trustee, the Note Registrar, the Paying Agent or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Owner Trustee, the Note Registrar, the Paying Agent or the Indenture
Trustee or of any successor or assign of the Indenture Trustee, the Note
Registrar, the Paying Agent or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee, the Note Registrar, the Paying Agent
and the Owner Trustee have no such obligations in their individual capacity).
Exh. D-8
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 that prior
to the end of the period that is one year and one day after there has been
paid in full all debt issued by any securitization vehicle in respect of which
the Depositor holds any interest, they will not institute against the
Depositor or the Issuer, or join in, or assist or encourage others to
institute, any institution against the Depositor or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by acceptance of a Note (and
each Note Owner by acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and
any agent of the Issuer or the Indenture Trustee may treat the Person in whose
name this Note is registered (as of the day of determination or as of such
other date as may be specified in the Indenture) as the owner hereof 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 this Note be
overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar,
the Paying Agent or any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes or of the
Controlling Class, on behalf of the Holders of all the Notes, 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 Holder of this Note (or any one or more Predecessor Notes) shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
Exh. D-9
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Wilmington Trust Company in its
individual capacity, Xxxxx Fargo Bank, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, the Seller, the
Depositor, the Servicer, or any of their respective partners, beneficiaries,
agents, officers, directors, employees or successors or assigns shall be
personally liable for, nor shall recourse be had to any of them for, the
payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Holder of this Note by its acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case
of an Event of Default under the Indenture, the Holder 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.
Exh. D-10
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
-----------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ____________________________________________, attorney, to
transfer said Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:_______________________ */-----------------------------------
Signature Guaranteed:
*/-----------------------------------
_______________
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within
Note in every particular, without alteration, enlargement or any
change whatsoever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
Exh. D-11
EXHIBIT E
FORM OF INVESTMENT LETTER
Xxxxxx Xxxxxxx ABS Capital II Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of $______________ aggregate
principal amount of Class D Notes (the "Securities") of Xxxxxx Xxxxxxx Auto
Loan Trust 2004-HB1 (the "Issuer"), we confirm that:
1. We understand that the Securities have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not be sold
except as permitted in the following sentence. We, understand and agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, (x) that such Securities are being offered only in a
transaction not involving any public offering within the meaning of the
Securities Act and (y) that such Securities may be resold, pledged or
transferred only (i) to Xxxxxx Xxxxxxx ABS Capital II Inc. (the "Company") or
(ii) to a person or entity that the transferor of the Securities reasonably
believes, after due inquiry is a "qualified institutional buyer" (a "QIB"), as
such term is defined in Rule 144A under the Securities Act ("Rule 144A"),
acting for its own account (and not for the account of others) or as a
fiduciary or agent for others (which others also are QIBs) and in reliance on,
and to whom notice is given that the sale, pledge or transfer is being made in
reliance on, Rule 144A. We will notify any purchaser of the Securities from us
of the above resale restrictions if then applicable. We further understand
that in connection with any transfer of the Securities by us that the Company
and the Indenture Trustee may request, and if so requested we will furnish,
such certificates and other information as they may reasonably require to
confirm that any such transfer complies with the foregoing restrictions. We
understand that no sale, pledge or other transfer may be made to any one
person or entity of Securities with a face amount of less than $25,000 and, in
the case of any person or entity acting on behalf of one or more third parties
(other than a bank (as defined in Section 3(a)(2) of the Securities Act)
acting in its fiduciary capacity), of Securities with a face amount of less
than $25,000 for each such third party.
2. We are a QIB and are acquiring the Securities for our own account (and
not for the account of others) or as a fiduciary or agent for others (which
others also are QIBs). We are familiar with Rule 144A and are aware that the
seller of the Securities and other parties intend to rely on the statements
made herein and the exemption from the registration requirements of the
Securities Act provided by Rule 144A. In this regard, we have received (a) a
copy of the Prospectus, dated May 5, 2004, the Prospectus Supplement, dated
May 5, 2004 and the Private Placement Memorandum, dated May 6, 2004, relating
to the Securities and (b) such
Exh. E-1
other written information, if any, as we have requested concerning the
Indenture, the Securities, the Issuer and the trustees. We have reviewed and
understand the material to which reference is made in this paragraph 2, and
understand that risks are involved in an investment in the Securities. We
represent that in making our investment decision to acquire the Securities, we
have not relied on representations, warranties, opinions, projections,
financial or other information or analyses, if any, supplied to us by any
person, including the Issuer, the Company, the trustees or any of their
respective affiliates except as expressly contained in the Prospectus, the
Prospectus Supplement and the Private Placement Memorandum and in the other
written information, if any, provided pursuant to our request.
3. We (a) are not (i) an "employee benefit plan" (as defined in Section
3(3) of The Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the provisions of Title I of ERISA or (ii) a
"plan" (as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986,
as amended (the "Code")) that is subject to Section 4975 of the Code (each a
"Benefit Plan") and (b) are not investing on behalf of, or with plan assets
of, a Benefit Plan.
4. We understand that the Company, the Issuer, the Indenture Trustee and
others will rely upon the truth and accuracy of the foregoing acknowledgments,
representations and agreements, and we agree that if any of the
acknowledgments, representations and agreements deemed to have been made by us
by our purchase of the Securities, for our own account or for one or more
accounts as to each of which we exercise sole investment discretion, are no
longer accurate, we shall promptly notify the Company, the Issuer and the
Indenture Trustee.
5. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
[NAME OF PURCHASER]
By:-----------------------------------
Name:
Title:
Date:
Exh. E-2
