Exhibit 4.2
EXECUTION COPY
INDENTURE
between
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely as
owner trustee of M&I Auto Loan Trust 2002-1
and
BANK ONE, NATIONAL ASSOCIATION
as Indenture Trustee
and
M&I XXXXXXXX & XXXXXX BANK
as Servicer
October 10, 2002
2002-1 Indenture
CROSS REFERENCE TABLE 1
-----------------------
TIA Indenture
Section Section
310 (a)(1) .................................................... 6.11
(a)(2) .................................................... 6.11
(a)(3) .................................................... 6.10
(a)(4) .................................................... N.A2
(a)(5) .................................................... 6.11
(b) .................................................... 6.8; 6.11
(c) .................................................... N.A.
311 (a) .................................................... 6.12
(b) .................................................... 6.12
(c) .................................................... N.A.
312 (a) .................................................... 7.1
(b) .................................................... 7.2
(c) .................................................... 7.2
(d) .................................................... 7.4
313 (a) .................................................... 7.4
(b)(1) .................................................... 7.4
(b)(2) .................................................... 11.5
(c) .................................................... 7.4
(d) .................................................... 7.3
314 (a) .................................................... 11.15
(b) .................................................... 11.1
(c)(1) .................................................... 11.1 (c)(2)
11.1
(c)(3) .................................................... 11.1
(d) .................................................... 11.1
(e) .................................................... 11.1
(f) .................................................... 11.1
315 (a) .................................................... 6.1
(b) .................................................... 6.5; 11.5
(c) .................................................... 6.1
(d) .................................................... 6.1
(e) .................................................... 5.13
316 (a)(last sentence) ........................................ 2.7
(a)(1)(A) ................................................. 5.11
(a)(1)(B) ................................................. 5.12
(a)(2) .................................................... N.A.
(b) .................................................... 5.7
(c) .................................................... N.A.
317 (a)(1) .................................................... 5.3
(a)(2) .................................................... 5.3
(b) .................................................... 3.3
318 (a) .................................................... 11.7
_______________________
1 Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of this Indenture.
2 N.A. means Not Applicable.
i 2002-1 Indenture
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE ........................... 2
SECTION 1.1 Definitions .................................................... 2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act .............. 2
SECTION 1.3 Other Interpretive Provisions .................................. 2
ARTICLE II THE NOTES ............................................................ 3
SECTION 2.1 Form ........................................................... 3
SECTION 2.2 Execution, Authentication and Delivery ......................... 3
SECTION 2.3 Temporary Notes ................................................ 4
SECTION 2.4 Registration of Transfer and Exchange .......................... 4
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes ..................... 6
SECTION 2.6 Persons Deemed Owner ........................................... 7
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest .......... 7
SECTION 2.8 Cancellation ................................................... 8
SECTION 2.9 Release of Collateral .......................................... 8
SECTION 2.10 Book-Entry Notes ............................................... 8
SECTION 2.11 Notices to Clearing Agency ..................................... 9
SECTION 2.12 Definitive Notes ............................................... 9
SECTION 2.13 Authenticating Agents .......................................... 9
SECTION 2.14 Tax Treatment .................................................. 10
SECTION 2.15 Note Paying Agents ............................................. 10
SECTION 2.16 Funding Events ................................................. 11
ARTICLE III COVENANTS ............................................................ 12
SECTION 3.1 Payment of Principal and Interest .............................. 12
SECTION 3.2 Maintenance of Office or Agency ................................ 12
SECTION 3.3 Money for Payments To Be Held in Trust ......................... 12
SECTION 3.4 Existence ...................................................... 14
SECTION 3.5 Protection of Trust Estate ..................................... 14
SECTION 3.6 Opinions as to Trust Estate .................................... 14
SECTION 3.7 Performance of Obligations; Servicing of Receivables ........... 15
SECTION 3.8 Negative Covenants ............................................. 17
SECTION 3.9 Annual Statement as to Compliance .............................. 17
ii 2002-1 Indenture
TABLE OF CONTENTS
continued
Page
SECTION 3.10 The Trust May Consolidate, Etc. Only on Certain Terms .......... 17
SECTION 3.11 Successor or Transferee ........................................ 19
SECTION 3.12 No Other Business .............................................. 19
SECTION 3.13 No Borrowing ................................................... 19
SECTION 3.14 Servicer's Obligations ......................................... 19
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities .............. 19
SECTION 3.16 Capital Expenditures ........................................... 20
SECTION 3.17 Restricted Payments ............................................ 20
SECTION 3.18 Notice of Events of Default .................................... 20
SECTION 3.19 Further Instruments and Acts ................................... 20
SECTION 3.20 Removal of Administrator ....................................... 20
ARTICLE IV SATISFACTION AND DISCHARGE ........................................... 20
SECTION 4.1 Satisfaction and Discharge of Indenture ........................ 20
SECTION 4.2 Application of Trust Money ..................................... 21
SECTION 4.3 Repayment of Moneys Held by Paying Agent ....................... 22
ARTICLE V REMEDIES ............................................................. 22
SECTION 5.1 Events of Default .............................................. 22
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment ............. 23
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee .............................................. 24
SECTION 5.4 Remedies; Priorities ........................................... 26
SECTION 5.5 Optional Preservation of the Receivables ....................... 28
SECTION 5.6 Limitation of Suits ............................................ 28
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal
and Interest ................................................... 29
SECTION 5.8 Restoration of Rights and Remedies ............................. 29
SECTION 5.9 Rights and Remedies Cumulative ................................. 29
SECTION 5.10 Delay or Omission Not a Waiver ................................. 30
SECTION 5.11 Control by Controlling Note Class of Noteholders ............... 30
SECTION 5.12 Waiver of Past Defaults ........................................ 30
SECTION 5.13 Undertaking for Costs .......................................... 31
SECTION 5.14 Waiver of Stay or Extension Laws ............................... 31
iii 2002-1 Indenture
TABLE OF CONTENTS
continued
Page
SECTION 5.15 Action on Notes .................................................... 31
SECTION 5.16 Performance and Enforcement of Certain Obligations ................. 31
ARTICLE VI INDENTURE TRUSTEE ........................................................ 32
SECTION 6.1 Duties of Indenture Trustee ........................................ 32
SECTION 6.2 Rights of Indenture Trustee ........................................ 33
SECTION 6.3 Individual Rights of Indenture Trustee ............................. 35
SECTION 6.4 Indenture Trustee's Disclaimer ..................................... 35
SECTION 6.5 Notice of Defaults ................................................. 35
SECTION 6.6 Reports by Indenture Trustee to Holders ............................ 35
SECTION 6.7 Compensation and Indemnity ......................................... 36
SECTION 6.8 Replacement of Indenture Trustee ................................... 36
SECTION 6.9 Successor Indenture Trustee by Merger .............................. 37
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee .. 38
SECTION 6.11 Eligibility; Disqualification ...................................... 39
SECTION 6.12 Preferential Collection of Claims Against Owner Trustee ............ 40
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS ........................................... 40
SECTION 7.1 Owner Trustee to Furnish Indenture Trustee Names and
Addresses of Noteholders ........................................... 40
SECTION 7.2 Preservation of Information; Communications to Noteholders ......... 40
SECTION 7.3 Reports by Owner Trustee ........................................... 40
SECTION 7.4 Reports by Indenture Trustee ....................................... 41
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES ..................................... 41
SECTION 8.1 Collection of Money ................................................ 41
SECTION 8.2 Trust Accounts ..................................................... 42
SECTION 8.3 General Provisions Regarding Accounts .............................. 44
SECTION 8.4 Release of Trust Estate ............................................ 44
SECTION 8.5 Opinion of Counsel ................................................. 45
SECTION 8.6 Reserve Account .................................................... 45
SECTION 8.7 Pre-Funding Account ................................................ 47
ARTICLE IX SUPPLEMENTAL INDENTURES .................................................. 50
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders ............. 50
iv 2002-1 Indenture
TABLE OF CONTENTS
continued
Page
SECTION 9.2 Supplemental Indentures with Consent of Noteholders ................ 51
SECTION 9.3 Execution of Supplemental Indentures ............................... 53
SECTION 9.4 Effect of Supplemental Indenture ................................... 53
SECTION 9.5 Conformity With Trust Indenture Act ................................ 53
SECTION 9.6 Reference in Notes to Supplemental Indentures ...................... 53
ARTICLE X REDEMPTION OF NOTES ...................................................... 53
SECTION 10.1 Redemption ......................................................... 53
SECTION 10.2 Form of Redemption Notice .......................................... 54
SECTION 10.3 Notes Payable on Redemption Date ................................... 54
ARTICLE XI MISCELLANEOUS ............................................................ 54
SECTION 11.1 Compliance Certificates and Opinions, etc .......................... 54
SECTION 11.2 Form of Documents Delivered to Indenture Trustee ................... 56
SECTION 11.3 Acts of Noteholders ................................................ 57
SECTION 11.4 Notices, etc., to Indenture Trustee, Owner Trustee and
Rating Agencies .................................................... 57
SECTION 11.5 Notices to Noteholders; Waiver ..................................... 58
SECTION 11.6 Alternate Payment and Notice Provisions ............................ 58
SECTION 11.7 Conflict with Trust Indenture Act .................................. 59
SECTION 11.8 Effect of Headings and Table of Contents ........................... 59
SECTION 11.9 Successors and Assigns ............................................. 59
SECTION 11.10 Separability ....................................................... 59
SECTION 11.11 Benefits of Indenture .............................................. 59
SECTION 11.12 Legal Holidays ..................................................... 59
SECTION 11.13 GOVERNING LAW ...................................................... 59
SECTION 11.14 Counterparts ....................................................... 60
SECTION 11.15 Recording of Indenture ............................................. 60
SECTION 11.16 Trust Obligation ................................................... 60
SECTION 11.17 No Petition ........................................................ 61
SECTION 11.18 Inspection ......................................................... 61
SECTION 11.19 Confidential Information ........................................... 61
SECTION 11.20 Limitation of Liability ............................................ 61
v 2002-1 Indenture
TABLE OF CONTENTS
continued
Page
EXHIBITS
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 Notice of Funding Date
Exhibit D Form of Funding Date Officer's Certificate
Exhibit E Form of Final Funding Date Officer's Certificate
SCHEDULES
Schedule A Indenture Trustee Fee
vi 2002-1 Indenture
INDENTURE dated as of October 10, 2002, (as from time to time amended,
supplemented or otherwise modified and in effect, this "Indenture") between THE
BANK OF NEW YORK (DELAWARE), not in its individual capacity but solely as owner
trustee of M&I Auto Loan Trust 2002-1, a Delaware common law trust (the "Owner
Trustee"), Bank One, National Association, a national banking association,
solely as trustee and not in its individual capacity ("Indenture Trustee") and
M&I XXXXXXXX & XXXXXX BANK (the "Servicer").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Trust's 1.77% Class A-1 Asset
Backed Notes (the "Class A-1 Notes"), 1.95% Class A-2 Asset Backed Notes (the
"Class A-2 Notes"), 2.49% Class A-3 Asset Backed Notes (the "Class A-3 Notes"),
3.04% Class A-4 Asset Backed Notes (the "Class A-4 Notes" and, together with the
Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the "Class A
Notes") and 3.52% Class B Asset Backed Notes (the "Class B Notes" and, together
with the Class A Notes, the "Notes"):
GRANTING CLAUSE
Owner Trustee hereby Grants to Indenture Trustee on the Closing Date and on
each Funding Date, as Indenture Trustee for the benefit of the Holders of the
Notes, all of Owner Trustee's right, title and interest in and to (a) the
Receivables, and all moneys received thereon after the related Cutoff Date; (b)
the security interests in the Financed Vehicles granted by Obligors pursuant to
the Receivables and any other interest of Owner Trustee in the Financed Vehicles
and any other property that shall secure the Receivables; (c) any proceeds with
respect to the Receivables from claims on any Insurance Policies covering
Financed Vehicles or the Obligors naming M&I Bank as an insured; (d) rebates of
premiums relating to Insurance Policies and rebates of other items such as
extended warranties financed under the Receivables, in each case, to the extent
the Servicer would, in accordance with its customary practices, apply such
amounts to the Principal Balance of the related Receivable; (e) any proceeds
from (i) any Receivable repurchased by a Dealer, pursuant to a Dealer Agreement,
as a result of a breach of representation or warranty in the related Dealer
Agreement, (ii) a default by an Obligor resulting in the repossession of the
Financed Vehicle under the applicable Motor Vehicle Loan or (iii) any Dealer
Recourse or other rights relating to the Receivables under Dealer Agreements;
(f) all funds on deposit from time to time in the Trust Accounts and in the
Pre-Funding Account and the Reserve Account, and in all investments and proceeds
thereof; (g) under the Purchase Agreement; (h) in any instrument or document
relating to the Receivables; (i) the Owner Trustee's rights under the Sale and
Servicing Agreement; (j) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in respect of any
or all of the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing; (k) the Pre-Funding Account and the Reserve
Account, and all proceeds of the foregoing, including all securities,
investments, general intangibles, financial assets and investment property from
time to time credited to and any security entitlement to the Reserve
0000-0 Xxxxxxxxx
Account; and (l) the Reserve Account Deposit and the Initial Pre-Funding Deposit
and all proceeds thereof (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal of
and interest on, and any other amounts owing in respect of, the Notes, equally
and ratably without prejudice, priority or distinction except as set forth
herein, and to secure compliance with the provisions of this Indenture, all as
provided in this Indenture.
Bank One, National Association, as Indenture Trustee on behalf of the
Holders of the Notes, acknowledges such Grant, accepts the trusts under this
Indenture in accordance with its provisions and agrees to perform its duties
required in this Indenture to the best of its ability to the end that the
interests of the Holders of the Notes may be adequately and effectively
protected. The Owner Trustee hereby authorizes the filing of any financing
statements necessary to perfect the security interest of the Indenture Trustee
created by the Grant.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Capitalized terms are used in this Indenture as
defined in Appendix X to the Sale and Servicing Agreement dated as of October
10, 2002, among M&I Dealer Auto Securitization, LLC, as Seller, the Owner
Trustee and M&I Bank, as Servicer.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"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 Indenture Trustee.
"obligor" on the indenture securities means Owner Trustee and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
SECTION 1.3 Other Interpretive Provisions. All terms defined in this
Indenture shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Indenture and all such certificates and other documents, unless
the context otherwise requires: (a) accounting terms not otherwise
-2- 2002-1 Indenture
defined in this Indenture, and accounting terms partly defined in this Indenture
to the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles; (b) the words "hereof," "herein"
and "hereunder" and words of similar import refer to this Indenture as a whole
and not to any particular provision of this Indenture; (c) references to any
Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Indenture and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (d) the term "including" means "including without limitation"; (e)
except as otherwise expressly provided herein, references to any law or
regulation refer to that law or regulation as amended from time to time and
include any successor law or regulation; (f) references to any Person include
that Person's successors and assigns; and (g) headings are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
ARTICLE II
THE NOTES
SECTION 2.1 Form. The Class A-1 Notes, Class A-2 Notes, Class A-3 Notes,
Class A-4 Notes and Class B Notes, in each case together with Indenture
Trustee's certificate of authentication, shall be in substantially the forms set
forth in Exhibits X-0, X-0, X-0, X-0 and B, respectively, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note.
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 Exhibits X-0, X-0, X-0, X-0 and B are part of the terms of
this Indenture.
SECTION 2.2 Execution, Authentication and Delivery. The Notes shall be
executed on behalf of Owner Trustee by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who were at
any time Authorized Officers of Owner Trustee shall bind Owner Trustee,
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.
Indenture Trustee shall upon Issuer Order authenticate and deliver Class
A-1 Notes for original issue in an aggregate principal amount of $133,000,000,
Class A-2 Notes for original issue in the aggregate principal amount of
$122,000,000, Class A-3 Notes for original issue in the aggregate principal
amount of $190,000,000, Class A-4 Notes for original issue in the
-3- 2002-1 Indenture
aggregate principal amount of $68,187,500, and Class B Notes for original issue
in the aggregate principal amount of $11,812,500. The aggregate principal amount
of Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class
B Notes outstanding at any time may not exceed such amounts except as provided
in Section 2.5.
Each Note shall be dated the date of its authentication. The Notes shall be
issuable as registered Notes in the minimum denomination of $1,000 and in
integral multiples of $500.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Note a certificate
of authentication substantially in the form provided for herein executed by
Indenture Trustee by the manual signature of one of its authorized signatories,
and such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder.
SECTION 2.3 Temporary Notes. Pending the preparation of Definitive Notes,
Owner Trustee may execute, and upon receipt of an Issuer Order, Indenture
Trustee shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, Owner Trustee will cause Definitive Notes to
be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of Owner Trustee to be
maintained as provided in Section 3.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, Owner Trustee
shall execute and Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Definitive Notes.
SECTION 2.4 Registration of Transfer and Exchange. Owner Trustee shall
cause to be kept a register (the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, Owner Trustee shall provide for the
registration of Notes and the registration of transfers of Notes. Indenture
Trustee or its designee shall initially be "Note Registrar" for the purpose of
maintaining such Note Register and registering Notes and transfers of Notes as
herein provided. Upon any resignation of any Note Registrar, Owner Trustee 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 Indenture Trustee is appointed by Owner Trustee as
Note Registrar, Owner Trustee will give 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 Indenture Trustee shall have the right
to inspect the Note Register at all reasonable times and to obtain copies
thereof, and Indenture Trustee shall have the right to conclusively rely upon a
certificate executed on behalf of Note Registrar by an Executive Officer thereof
as to the names and addresses of the Holders of the Notes and the principal
amounts and number of such Notes.
-4- 2002-1 Indenture
Upon surrender for registration of transfer of any Note at the office or
agency of Owner Trustee to be maintained as provided in Section 3.2, if the
requirements of Section 8-401(1) of the UCC are met, Owner Trustee shall execute
and upon its written request Indenture Trustee shall authenticate and the
Noteholder shall obtain from Indenture Trustee, in the name of the designated
transferee or transferees, one or more new Notes, in any authorized
denominations, of the same class and a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes in any
authorized denominations, of the same class and a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, if the requirements of
Section 8-401(1) of the UCC are met Owner Trustee shall execute and upon its
written request Indenture Trustee shall authenticate and the Noteholder shall
obtain from Indenture Trustee, the Notes which the Noteholder making the
exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of Owner Trustee, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to Note Registrar duly executed by,
the Holder thereof or such Holder's attorney duly authorized in writing, with
such signature guaranteed by an "eligible guarantor institution" meeting the
requirements of Note Registrar which requirements include membership or
participation in a Securities Transfer Agents Medallion Program ("Stamp") or
such other "signature guarantee program" as may be determined by Note Registrar
in addition to, or in substitution for, Stamp, all in accordance with the
Exchange Act, and (ii) accompanied by such other documents as Indenture Trustee
may require.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but Owner Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
The preceding provisions of this section notwithstanding, Owner Trustee
shall not be required to make and Note Registrar need not register transfers or
exchanges of Notes selected for redemption or of any Note for a period of 15
days preceding the due date for any payment with respect to the Note.
No Note, or any interest therein, may be transferred to an "employee
benefit plan" within the meaning of Section 3(3) of ERISA that is subject to
ERISA, a "plan" described in Section 4975(e)(1) of the Code, any entity that is
deemed to hold "plan assets" of any of the foregoing by reason of an employee
benefit plan's or other plan's investment in such entity, or any governmental
plan subject to applicable law that is substantially similar to the fiduciary
responsibility provisions of ERISA or Section 4975 of the Code, unless such
transferee represents, warrants and covenants that its purchase and holding of
such Note is and will be
-5- 2002-1 Indenture
eligible for, and satisfies and will satisfy all the requirements of, Department
of Labor prohibited transaction class exemption ("PTE") 90-1; PTE 96-23; PTE
95-60: PTE 91-38; PTE 84-14 or another applicable prohibited transaction
exemption (or in the case of a governmental plan, will not violate any
applicable law that is substantially similar to ERISA or Section 4975 of the
Code). By its acquisition of a Note or any interest therein, each transferee
will be deemed to have represented, warranted and covenanted that it satisfies
the foregoing requirements and the Indenture Trustee may rely conclusively on
the same for purposes hereof.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to Indenture Trustee, or Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to Indenture Trustee such security or
indemnity as may be required by it to hold Owner Trustee and Indenture Trustee
harmless, then, in the absence of notice to Owner Trustee, Note Registrar or
Indenture Trustee that such Note has been acquired by a protected purchaser, and
provided that the requirements of Section 8-405 of the UCC are met, Owner
Trustee shall execute and upon its written request Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note; provided that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within seven days shall be due and payable, or shall have been called for
redemption, instead of issuing a replacement Note, Owner Trustee may upon
delivery of the security or indemnity herein required pay such destroyed, lost
or stolen Note when so due or payable or upon the Redemption Date without
surrender thereof. If, after the delivery of such replacement Note or payment of
a destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a protected purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, Owner
Trustee and Indenture Trustee shall be entitled to recover such replacement Note
(or such payment) from the Person to whom it was delivered or any Person taking
such replacement Note from such Person to whom such replacement Note was
delivered or any assignee of such Person, except a protected purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by Owner Trustee or
Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section 2.5, Owner
Trustee may require the payment by the Holder of such Note of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section 2.5 in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of Owner Trustee, 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.
The provisions of this Section 2.5 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.
-6- 2002-1 Indenture
SECTION 2.6 Persons Deemed Owner. Prior to due presentment for registration
of transfer of any Note, Owner Trustee, Indenture Trustee and any agent of Owner
Trustee or Indenture Trustee may treat the Person in whose name any Note is
registered (as of the day of determination) as the owner of such Note for the
purpose of receiving payments of principal of and interest, if any, on such Note
and for all other purposes whatsoever, whether or not such Note be overdue, and
neither Owner Trustee, Indenture Trustee nor any agent of Owner Trustee or
Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest. (a) The
Notes shall accrue interest as provided in the forms of the Class A-1 Note,
Class A-2 Note, Class A-3 Notes, Class A-4 Notes and Class B Notes, set forth in
Exhibits X-0, X-0, X-0, X-0 and B, respectively, and such interest shall be
payable on each Payment Date as specified therein, subject to Section 3.1. Any
installment of interest or principal, if any, payable on any Note which is
punctually paid or duly provided for by Owner Trustee on the applicable Payment
Date shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12, with respect to Notes registered on the Record
Date in the name of the nominee of the Clearing Agency (initially, such nominee
to be Cede & Co.), payment will be made by wire transfer in immediately
available funds to the account designated by such nominee and except for the
final installment of principal payable with respect to such Note on a Payment
Date or on the Final Scheduled Payment Date for such Class (and except for the
Redemption Price for any Note called for redemption pursuant to Section 10.1(a))
which shall be payable as provided below. The funds represented by any such
checks returned undelivered shall be held in accordance with Section 3.3.
(b) The principal of each Note shall be payable in installments on each
Payment Date as provided in the forms of the Class A-1 Note, Class A-2 Note,
Class A-3 Note, Class A-4 Note and Class B Note, set forth in Exhibits X-0, X-0,
X-0, X-0 and B, respectively. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not previously paid,
on the date on which an Event of Default shall have occurred and be continuing,
if Indenture Trustee or the Holders of the Notes representing not less than a
majority of the Outstanding Amount of the Controlling Note Class of Notes have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.2 and, in such event, all principal payments on each class of Notes
shall be made pro rata to the Noteholders of such class entitled thereto.
Indenture Trustee shall notify the Person in whose name a Note is registered at
the close of business on the Record Date preceding the Payment Date on which
Indenture Trustee expects that the final installment of principal of and
interest on such Note will be paid. Such notice shall be mailed or transmitted
by facsimile prior to such final Payment Date and shall specify that such final
installment will be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered for
payment of such installment. Notices in connection with redemptions of Notes
shall be mailed to Noteholders as provided in Section 10.2.
(c) If Owner Trustee defaults in a payment of interest on the Notes, Owner
Trustee shall pay defaulted interest (plus interest on such defaulted interest
to the extent lawful) at the applicable Interest Rate on the Payment Date
following such default. The Owner Trustee shall
-7- 2002-1 Indenture
pay such defaulted interest to the Holders of Notes on the Record Date for such
following Payment Date.
SECTION 2.8 Cancellation. All Notes surrendered for payment, registration
of transfer, exchange or redemption shall, if surrendered to any Person other
than Indenture Trustee, be delivered to Indenture Trustee and shall be promptly
cancelled by Indenture Trustee. Owner Trustee may at any time deliver to
Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder which Owner Trustee may have acquired in any manner
whatsoever, and all Notes so delivered shall be promptly cancelled by Indenture
Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section 2.8, except as expressly permitted by this
Indenture. All cancelled Notes may be held or disposed of by Indenture Trustee
in accordance with its standard retention or disposal policy as in effect at the
time unless Owner Trustee shall direct by an Issuer Order that they be destroyed
or returned to it; provided that such Issuer Order is timely and the Notes have
not been previously disposed of by Indenture Trustee.
SECTION 2.9 Release of Collateral. Subject to Section 11.1, Indenture
Trustee shall release property from the Lien of this Indenture only in
accordance with the Basic Documents and upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates. If the Commission shall
issue an exemptive order under TIA Section 304(d) modifying Owner Trustee's
obligations under TIA Sections 314(c) and 314(d)(1), subject to Section 11.1 and
the terms of the Basic Documents, Indenture Trustee shall release property from
the Lien of this Indenture in accordance with the conditions and procedures set
forth in such exemptive order.
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance, will be
issued in the form of typewritten Notes representing the Book-Entry Notes, to be
delivered to Bank One, National Association, as custodian for The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, Owner Trustee.
Such Notes shall initially be registered on the Note Register in the name of
Cede & Co., the nominee of the initial Clearing Agency, and no Note Owner will
receive a Definitive Note representing such Note Owner's interest in such Note,
except as provided in Section 2.12. Unless and until definitive, fully
registered Notes (the "Definitive Notes") have been issued to Note Owners
pursuant to Section 2.12:
(a) the provisions of this Section 2.10 shall be in full force and effect;
(b) Note Registrar and Indenture Trustee shall be entitled to deal with
the Clearing Agency for all purposes of this Indenture (including the payment of
principal of and interest on the Notes and the giving of instructions or
directions hereunder) as the sole Holder of the Notes, and shall have no
obligation to the Note Owners;
(c) to the extent that the provisions of this Section 2.10 conflict with
any other provisions of this Indenture, the provisions of this Section 2.10
shall control;
-8- 2002-1 Indenture
(d) the rights of Note Owners shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements between
such Note Owners and the Clearing Agency and/or the Clearing Agency Participants
or Persons acting through Clearing Agency Participants. Pursuant to the Note
Depository Agreement, unless and until Definitive Notes are issued pursuant to
Section 2.12, the initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit payments of principal
of and interest on the Notes to such Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken based
upon instructions or directions of Holders of Notes evidencing a specified
percentage of the Outstanding Amount of the Notes (or any class thereof,
including the Controlling Note Class), the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has received instructions
to such effect from Note Owners and/or Clearing Agency Participants or Persons
acting through Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the Notes
(or class thereof, including the Controlling Note Class) and has delivered such
instructions to Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, Indenture Trustee shall give all such notices and communications specified
herein to be given to Holders of the Notes to the Clearing Agency, and shall
have no obligation to the Note Owners.
SECTION 2.12 Definitive Notes. If (a) the Servicer advises Indenture
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Notes, and the
Servicer is unable to locate a qualified successor, (b) the Servicer at its
option advises Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence of an
Event of Default, Note Owners representing beneficial interests aggregating at
least a majority of the Outstanding Amount of the Notes advise Indenture Trustee
through the Clearing Agency in writing that the continuation of a book entry
system through the Clearing Agency is no longer in the best interests of the
Note Owners, then the Clearing Agency shall notify all Note Owners and Indenture
Trustee of the occurrence of any such event and of the availability of
Definitive Notes to Note Owners requesting the same. Upon surrender to Indenture
Trustee of the typewritten Note or Notes representing the Book-Entry Notes by
the Clearing Agency, accompanied by registration instructions, Owner Trustee
shall execute and Indenture Trustee shall authenticate the Definitive Notes in
accordance with the instructions of the Clearing Agency. None of Owner Trustee,
Note Registrar or Indenture Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Notes, Indenture
Trustee shall recognize the Holders of the Definitive Notes as Noteholders.
SECTION 2.13 Authenticating Agents. (a) The Indenture Trustee may appoint
one or more Persons (each, an "Authenticating Agent") with power to act on its
behalf and subject to its direction in the authentication of Notes in connection
with issuance, transfers and exchanges under Sections 2.2, 2.3, 2.4, 2.5 and
9.6, as fully to all intents and purposes as though each such Authenticating
Agent had been expressly authorized by those Sections to authenticate
-9- 2002-1 Indenture
such Notes. For all purposes of this Indenture, the authentication of Notes by
an Authenticating Agent pursuant to this Section 2.13 shall be deemed to be the
authentication of Notes "by the Indenture Trustee." The Indenture Trustee shall
be the Authenticating Agent in the absence of any appointment thereof.
(b) Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, without the execution or filing of any
further act on the part of the parties hereto or such Authenticating Agent or
such successor corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to Indenture Trustee and Owner Trustee. Indenture Trustee
may at any time terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and Owner Trustee.
Upon receiving such notice of resignation or upon such a termination, Indenture
Trustee may appoint a successor Authenticating Agent and shall give written
notice of any such appointment to Owner Trustee.
(d) The Administrator agrees to pay to each Authenticating Agent (other
than the Indenture Trustee) from time to time reasonable compensation for its
services as agreed upon between the Authenticating Agent and the Administrative
Agent. The provisions of Sections 2.8 and 6.4 shall be applicable to any
Authenticating Agent.
SECTION 2.14 Tax Treatment. Owner Trustee has entered into this Indenture,
and the Notes shall be issued, with the intention that, for federal, state and
local income and franchise tax purposes, the Notes shall qualify as indebtedness
secured by the Trust Estate. Owner Trustee, by entering into this Indenture, and
each Noteholder, by its acceptance of a Note (and each Note Owner by its
acceptance of an interest in the applicable Book-Entry Note), agree to treat the
Notes for federal, state and local income and franchise tax purposes as
indebtedness.
SECTION 2.15 Note Paying Agents. (a) The Indenture Trustee is appointed
"Note Paying Agent" under this Indenture and hereby accepts such appointment.
The Indenture Trustee may appoint one or more Note Paying Agents with the power
to make payments to and distribution from the Trust Accounts and the Reserve
Account.
(b) Any corporation into which any Note Paying Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Note Paying Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Note Paying Agent shall be the successor of
such Note Paying Agent hereunder, without the execution or filing of any further
act on the part of the parties hereto or such Note Paying Agent or such
successor corporation.
(c) Any Note Paying Agent may at any time resign by giving written notice
of resignation to Indenture Trustee and Administrator. Indenture Trustee may at
any time terminate
-10- 2002-1 Indenture
the agency of any Note Paying Agent by giving written notice of termination to
such Note Paying Agent. Upon receiving such notice of resignation or upon such a
termination, Indenture Trustee may appoint a successor Note Paying Agent and
shall give written notice of any such appointment to Administrator.
(d) The Indenture Trustee agrees to pay to each Note Paying Agent from
time to time reasonable compensation for its services as agreed upon between the
Note Paying Agent and the Indenture Trustee. The provisions of Section 6.4 shall
be applicable to any Note Paying Agent.
SECTION 2.16 Funding Events.
(a) A funding event (each a "Funding Event") shall occur upon a Funding
Date and in accordance with the requirements of this Section 2.16.
(b) During the Pre-Funding Period, the Owner Trustee shall, on the Funding
Dates, (i) acquire Subsequent Receivables from the Seller pursuant to the Sale
and Servicing Agreement (and the Seller shall acquire such Subsequent
Receivables from M&I Bank pursuant to the Purchase Agreement) and (ii) Grant all
of the Owner Trustee's right, title and interest in and to such Subsequent
Receivables and related items of the Trust Property to the Indenture Trustee for
the benefit of the Holders of the Notes. Such Subsequent Receivables shall be
acquired at the option of the Owner Trustee upon instruction from the Servicer;
provided that such Subsequent Receivables may not be acquired through the
Pre-Funding Account if the effect of such acquisition would be to (i) reduce the
weighted average annual percentage rate of the overall Receivables Pool to less
than 7.00%, (ii) increase the weighted average remaining term to maturity of the
overall Receivables Pool to greater than 60 months or (iii) increase the portion
of the overall Receivables Pool due from Obligors having a billing address in
any given state to a level greater than 10% of the aggregate Principal Balance
of the Receivables (except with respect to Wisconsin and Minnesota).
(c) The following procedures shall be followed to effect a Funding Event:
(i) M&I Bank will package and forward or cause to be packaged and
forwarded to the Custodian the Receivables File with respect to each
Subsequent Receivable.
(ii) By the Funding Date, the Owner Trustee shall deliver, or cause to
be delivered, to the Indenture Trustee and the Custodian, the following:
(A) Notice of Funding Date (in the form of Exhibit C hereto)
with the related Schedule of Receivables delivered by the Seller with
respect thereto;
(B) Officer's Certificate of the Servicer (in the form attached
as Exhibit B to the Sale and Servicing Agreement);
(C) Joint Officer's Certificate of M&I Bank, the Seller and the
Owner Trustee (in the form of Exhibit D hereto);
(D) Copies of Financing Statements and/or Termination
Statements;
-11- 2002-1 Indenture
(E) With respect to the final Funding Date only, Officer's
Certificates of the Owner Trustee, the Seller and M&I Bank (in the
form Exhibit E hereto);
(F) With respect to the final Funding Date only, a letter
substantially in the forms of the drafts to which the Underwriters
previously agreed and otherwise in form and substance satisfactory to
the Underwriters and Deloitte & Touche.
(iii) The Indenture Trustee, on behalf of the Seller, shall deposit
into the Reserve Account, from amounts which would otherwise be released to
the Seller from the Pre-Funding Account, an amount equal to the Subsequent
Reserve Account Deposit for such Funding Date.
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest. Owner Trustee will duly and
punctually pay the principal of and interest on the Notes in accordance with the
terms of the Notes and this Indenture. Without limiting the foregoing, subject
to Section 8.2(c), Owner Trustee will cause to be distributed all amounts on
deposit in the Note Distribution Account on a Payment Date deposited therein
pursuant to the Sale and Servicing Agreement. Amounts properly withheld under
the Code by any Person from a payment to any Noteholder of interest and/or
principal shall be considered as having been paid by Owner Trustee to such
Noteholder for all purposes of this Indenture.
SECTION 3.2 Maintenance of Office or Agency. Owner Trustee will maintain in
the city of Wilmington, Delaware or in the city of Chicago, Illinois, an office
or agency where Notes may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon Owner Trustee in respect of
the Notes and this Indenture may be served. Owner Trustee hereby initially
appoints Indenture Trustee to serve as its agent for the foregoing purposes.
Owner Trustee will give prompt written notice to Indenture Trustee of the
location, and of any change in the location, of any such office or agency. If at
any time Owner Trustee shall fail to maintain any such office or agency or shall
fail to furnish Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust Office, and
Owner Trustee hereby appoints Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust. As provided in Section
8.2, all payments of amounts due and payable with respect to any Notes that are
to be made from amounts withdrawn from the Collection Account and the Note
Distribution Account pursuant to Section 8.2(c) shall be made on behalf of Owner
Trustee by Indenture Trustee or by another Paying Agent, and no amounts so
withdrawn from the Collection Account and the Note Distribution Account for
payments of Notes shall be paid over to Owner Trustee except as provided in this
Section 3.3.
On or before each Payment Date and Redemption Date, Owner Trustee shall
deposit or cause to be deposited in the Note 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
-12- 2002-1 Indenture
Persons entitled thereto and (unless the Paying Agent is Indenture Trustee)
shall promptly notify Indenture Trustee of its action or failure so to act.
Owner Trustee will cause each Paying Agent other than Indenture Trustee to
execute and deliver to Indenture Trustee an instrument in which such Paying
Agent shall agree with Indenture Trustee (and if Indenture Trustee acts as
Paying Agent, it hereby so agrees), subject to the provisions of this Section
3.3, 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 provided herein and pay such sums to such Persons as in the Basic
Documents;
(ii) give Indenture Trustee notice of any default by Owner Trustee
(or any other obligor upon the Notes) of which it has actual knowledge in
the making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon the
written request of Indenture Trustee, forthwith pay to Indenture Trustee
all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
Indenture Trustee all sums held by it in trust for the payment of Notes if
at any time it ceases to meet the standards required to be met by a Paying
Agent at the time of its appointment; and
(v) comply with all requirements of the Code and any state or local
tax law with respect to the withholding from any payments made by it on any
Notes of any applicable withholding taxes imposed thereon and with respect
to any applicable reporting requirements in connection therewith.
Owner Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to Indenture Trustee all sums held in trust
by such Paying Agent, such sums to be held by Indenture Trustee upon the same
trusts as those upon which the sums were held by such Paying Agent; and upon
such a payment by any Paying Agent to Indenture Trustee, such Paying Agent shall
be released from all further liability with respect to such money.
Subject to applicable laws with respect to the escheat of funds, any money
held by Indenture Trustee or any Paying Agent in trust for the payment of any
amount due with respect to any Note and remaining unclaimed for two years after
such amount has become due and payable shall be discharged from such trust and
be paid to Owner Trustee on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to Owner Trustee for
payment thereof (but only to the extent of the amounts so paid to Owner
Trustee), and all liability of Indenture Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; provided that Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense of Owner Trustee cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and
-13- 2002-1 Indenture
of general circulation in The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to Owner Trustee. Indenture Trustee shall also
adopt and employ, at the expense of Owner Trustee, any other reasonable means of
notification of such repayment (including, but not limited to, mailing notice of
such repayment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in moneys due and
payable but not claimed is determinable from the records of Indenture Trustee or
of any Paying Agent, at the last address of record for each such Holder).
SECTION 3.4 Existence. Except as otherwise permitted by the provisions of
Section 3.10, Owner Trustee will keep in full effect the existence, rights and
franchises of M&I Auto Loan Trust 2002-1 as a common law trust under the laws of
the State of Delaware (unless it becomes, or any successor Owner Trustee
hereunder is or becomes, organized under the laws of any other state or of the
United States of America, in which case Owner Trustee will keep in full effect
the existence, rights and franchises of M&I Auto Loan Trust 2002-1 under the
laws of such other jurisdiction) and will obtain and preserve its qualification
to do business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Indenture, the
Notes, the Collateral and each other instrument or agreement included in the
Trust Estate.
SECTION 3.5 Protection of Trust Estate. Owner Trustee will from time to
time prepare (or shall cause to be prepared), execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action necessary or advisable to:
(a) maintain or preserve the Lien and security interest (and the priority
thereof) of this Indenture or carry out more effectively the purposes hereof;
(b) perfect, publish notice of or protect the validity of any Grant made
or to be made by this Indenture;
(c) enforce any of the Collateral; or
(d) preserve and defend title to the Trust Estate and the rights of
Indenture Trustee and the Noteholders in such Trust Estate against the claims of
all persons and parties.
Owner Trustee hereby designates Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required by Owner Trustee pursuant to this Section 3.5.
SECTION 3.6 Opinions as to Trust Estate. (a) On the Closing Date, Owner
Trustee shall furnish to Indenture Trustee an Opinion of Counsel either stating
that, in the opinion of such counsel, such action has been taken with respect to
the recording and filing of this Indenture, any indentures supplemental hereto,
and any other requisite documents, and with respect to the execution and filing
of any financing statements and continuation statements, as are necessary to
perfect and make effective the Lien and security interest of this Indenture and
-14- 2002-1 Indenture
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such Lien and security interest
effective.
(b) Within 120 days after the beginning of each calendar year, beginning
with the first calendar year beginning more than three months after the Initial
Cutoff Date, Owner Trustee shall furnish to Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the execution and filing of any financing
statements and continuation statements as are necessary to maintain the Lien and
security interest created by this Indenture and reciting the details of such
action or stating that in the opinion of such counsel no such action is
necessary to maintain such Lien and security interest. Such Opinion of Counsel
shall also describe the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite documents
and the execution and filing of any financing statements and continuation
statements that will, in the opinion of such counsel, be required to maintain
the Lien and security interest of this Indenture until April 30 in the following
calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Receivables. (a) Owner
Trustee will not take any action and will use its best efforts not to permit any
action to be taken by others that would release any Person from any of such
Person's material covenants or obligations under any instrument or agreement
included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
ordered by any bankruptcy or other court or as expressly provided in this
Indenture, the Basic Documents or such other instrument or agreement.
(b) Owner Trustee may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to Indenture Trustee in an Officer's Certificate of Owner
Trustee shall be deemed to be action taken by Owner Trustee. Initially, Owner
Trustee has contracted with Servicer and the Administrator to assist Owner
Trustee in performing its duties under this Indenture.
(c) Owner Trustee will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Trust Estate, including but
not limited to preparing (or causing to prepared) and filing (or causing to be
filed) all UCC financing statements and continuation statements required to be
filed by the terms of this Indenture and the Sale and Servicing Agreement in
accordance with and within the time periods provided for herein and therein.
Except as otherwise expressly provided therein, Owner Trustee shall not waive,
amend, modify, supplement or terminate any Basic Document or any provision
thereof without the consent of Indenture Trustee or the Holders of at least a
majority of the Outstanding Amount of the Notes.
(d) If Owner Trustee shall have knowledge of the occurrence of a Servicer
Termination Event under the Sale and Servicing Agreement, Owner Trustee shall
promptly notify Indenture Trustee and the Rating Agencies thereof in accordance
with Section 11.4, and shall specify in such notice the action, if any, Owner
Trustee is taking in respect of such default.
-15- 2002-1 Indenture
If a Servicer Termination Event shall arise from the failure of Servicer to
perform any of its duties or obligations under the Sale and Servicing Agreement
with respect to the Receivables, Owner Trustee shall take all reasonable steps
available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination to
Servicer of Servicer's rights and powers pursuant to Section 8.1 of the Sale and
Servicing Agreement or the Servicer's resignation in accordance with the terms
of the Sale and Servicing Agreement, the Indenture Trustee shall appoint a
successor servicer (the "Successor Servicer"), and such Successor Servicer shall
accept its appointment by a written assumption in a form acceptable to Indenture
Trustee. In the event that a Successor Servicer has not been appointed and
accepted its appointment at the time when Servicer ceases to act as Servicer,
Indenture Trustee without further action shall automatically be appointed the
Successor Servicer. If Indenture Trustee shall succeed to Servicer's duties as
servicer of the Receivables as provided herein, it shall do so in its individual
capacity and not in its capacity as Indenture Trustee and, accordingly, the
provisions of Article VI shall be inapplicable to Indenture Trustee in its
duties as the successor to Servicer and the servicing of the Receivables. In the
case that Indenture Trustee becomes successor to Servicer under the Sale and
Servicing Agreement, Indenture Trustee shall be entitled to appoint as Servicer
any one of its Affiliates, or delegate any of its responsibilities as Servicer
to agents, subject to the terms of the Sale and Servicing Agreement, provided
that such appointment or delegation shall not affect or alter in any way the
liability of Indenture Trustee as a successor for the performance of the duties
and obligations of Servicer in accordance with the terms hereof. Owner Trustee
shall enter into an agreement with such successor for the servicing of the
Receivables (such agreement to be in form and substance satisfactory to
Indenture Trustee).
(f) Upon any termination of Servicer's rights and powers pursuant to the
Sale and Servicing Agreement, Owner Trustee shall promptly notify Indenture
Trustee. As soon as a Successor Servicer (other than Indenture Trustee) is
appointed, Owner Trustee shall notify Indenture Trustee of such appointment,
specifying in such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment granted
to Indenture Trustee under this Indenture or the rights of Indenture Trustee
hereunder, Owner Trustee agrees that, unless such action is specifically
permitted hereunder or under the Basic Documents, it will not, without the prior
written consent of Indenture Trustee or the Holders of at least a majority in
Outstanding Amount of the Notes, amend, modify, waive, supplement, terminate or
surrender, or agree to any amendment, modification, supplement, termination,
waiver or surrender of, the terms of any Collateral or the Basic Documents, or
waive timely performance or observance by Servicer or Seller under the Sale and
Servicing Agreement; provided that no such amendment shall (i) except for
amendments and modifications of the Receivables permitted under the Sale and
Servicing Agreement, increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required to be made
for the benefit of the Noteholders, or (ii) reduce the aforesaid percentage of
the Notes which are required to consent to any such amendment, without the
consent of the Holders of all the Outstanding Notes. If any such amendment,
modification, supplement or waiver shall be so consented to by Indenture Trustee
or such Holders, Owner Trustee agrees, promptly following a request by Indenture
Trustee to do so, to execute and deliver, in its own name and at its own
-16- 2002-1 Indenture
expense, such agreements, instruments, consents and other documents as Indenture
Trustee may deem necessary or appropriate in the circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding, Owner
Trustee shall not:
(a) except as expressly permitted by this Indenture or the Basic
Documents, sell, transfer, exchange or otherwise dispose of any of the
properties or assets of Owner Trustee, including those included in the Trust
Estate, unless directed to do so by Indenture Trustee;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly withheld
from such payments under the Code) or assert any claim against any present or
former Noteholder by reason of the payment of the taxes levied or assessed upon
any part of the Trust Estate;
(c) dissolve or liquidate in whole or in part; or
(d) (i) permit the validity or effectiveness of this Indenture to be
impaired, or permit the Lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released from
any covenants or obligations with respect to the Notes under this Indenture
except as may be expressly permitted hereby, (ii) permit any Lien, charge,
excise, claim, security interest, mortgage or other encumbrance (other than the
Lien of this Indenture) to be created on or extend to or otherwise arise upon or
burden the Trust Estate or any part thereof or any interest therein or the
proceeds thereof (other than tax Liens, mechanics' Liens and other Liens that
arise by operation of law, in each case on a Financed Vehicle and arising solely
as a result of an action or omission of the related Obligor) or (iii) permit the
Lien of this Indenture not to constitute a valid first priority (other than with
respect to any such tax, mechanics' or other Lien) security interest in the
Trust Estate.
SECTION 3.9 Annual Statement as to Compliance. Owner Trustee will deliver
to Indenture Trustee, within 120 days after the end of each fiscal year of the
Trust (commencing 120 days after the fiscal year ended December 30, 2002), and
otherwise in compliance with the requirements of TIA Section 314(a)(4) an
Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that:
(a) a review of the activities of Owner Trustee during such year and of
performance under this Indenture has been made under such Authorized Officer's
supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, Owner Trustee has complied with all conditions and covenants under this
Indenture throughout such year, or, if there has been a default in the
compliance of any such condition or covenant, specifying each such default known
to such Authorized Officer and the nature and status thereof.
SECTION 3.10 The Trust May Consolidate, Etc. Only on Certain Terms. (a) The
Trust shall not consolidate or merge with or into any other Person, unless:
(i) the Person (if other than the Trust) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the
-17- 2002-1 Indenture
United States of America or any state and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to Indenture Trustee,
in form satisfactory to Indenture Trustee, the due and punctual payment of
the principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the part of
the Trust to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) Owner Trustee shall have received an Opinion of Counsel (and
shall have delivered copies thereof to Indenture Trustee) to the effect
that such transaction will not have any material adverse tax consequence to
the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the Lien and security
interest created by this Indenture shall have been taken; and
(vi) Owner Trustee shall have delivered to Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing required
by the Exchange Act).
(b) Except as expressly contemplated by the Basic Documents, Owner Trustee
shall not convey or transfer all or substantially all of its properties or
assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of Owner Trustee the conveyance or transfer of which
is hereby restricted shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America or
any state, (B) expressly assume, by an indenture supplemental hereto,
executed and delivered to Indenture Trustee, in form satisfactory to
Indenture Trustee, the due and punctual payment of the principal of and
interest on all Notes and the performance or observance of every agreement
and covenant of this Indenture on the part of Owner Trustee to be performed
or observed, all as provided herein, (C) expressly agree by means of such
supplemental indenture that all right, title and interest so conveyed or
transferred shall be subject and subordinate to the rights of Holders of
the Notes, (D) unless otherwise provided in such supplemental indenture,
expressly agree to indemnify, defend and hold harmless Owner Trustee
against and from any loss, liability or expense arising under or related to
this Indenture and the Notes and (E) expressly agree by means of such
supplemental indenture that such Person (or if a group of persons, then one
specified Person) shall prepare (or cause to be prepared) and make all
filings with the Commission (and any other appropriate Person) required by
the Exchange Act in connection with the Notes;
-18- 2002-1 Indenture
(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) Owner Trustee shall have received an Opinion of Counsel (and
shall have delivered copies thereof to Indenture Trustee) to the effect
that such transaction will not have any material adverse tax consequence to
the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the Lien and security
interest created by this Indenture shall have been taken; and
(vi) Owner Trustee shall have delivered to Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing required
by the Exchange Act).
SECTION 3.11 Successor or Transferee. (a) Upon any consolidation or merger
of the Trust in accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the Trust) shall succeed
to, and be substituted for, and may exercise every right and power of, the Trust
under this Indenture with the same effect as if such Person had been named as
issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the
Trust pursuant to Section 3.10(b), the Owner Trustee will be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of Owner Trustee with respect to the Notes immediately upon the delivery of
written notice to Indenture Trustee stating that the Owner Trustee is to be so
released.
SECTION 3.12 No Other Business. Owner Trustee shall not engage in any
business other than financing, purchasing, owning, selling, managing and
pledging the Receivables in the manner contemplated by this Indenture and the
Basic Documents and activities incidental thereto.
SECTION 3.13 No Borrowing. Owner Trustee 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. Owner Trustee shall cause Servicer to
comply with the Sale and Servicing Agreement, including Sections 4.9, 4.10,
4.11, 4.12 and 5.5 thereof and the Administration Agreement.
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities. Except as
contemplated by the Sale and Servicing Agreement or this Indenture, Owner
Trustee shall not make any loan or advance or credit to, or guarantee (directly
or indirectly or by an instrument
-19- 2002-1 Indenture
having the effect of assuring another's payment or performance on any obligation
or capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the obligations,
stocks or dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or any
other interest in, or make any capital contribution to, any other Person.
SECTION 3.16 Capital Expenditures. Owner Trustee 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. Owner Trustee shall not, directly or
indirectly, (a) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to Owner Trustee or any owner of a beneficial interest in the Trust or
otherwise with respect to any ownership or equity interest or security in or of
Owner Trustee or to Servicer or Administrator, (b) redeem, purchase, retire or
otherwise acquire for value any such ownership or equity interest or security or
(c) set aside or otherwise segregate any amounts for any such purpose; provided
that Owner Trustee may make, or cause to be made, distributions to Servicer,
Administrator, Owner Trustee, Indenture Trustee and the Certificateholders as
permitted by, and to the extent funds are available for such purpose under, the
Sale and Servicing Agreement or Trust Agreement. Owner Trustee will not,
directly or indirectly, make payments to or distributions from the Trust
Accounts except in accordance with this Indenture and the Basic Documents.
SECTION 3.18 Notice of Events of Default. Owner Trustee agrees to give
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder and each Event of Servicing Termination.
SECTION 3.19 Further Instruments and Acts. Upon request of Indenture
Trustee, Owner Trustee will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.20 Removal of Administrator. For so long as any Notes are
Outstanding, the Owner Trustee shall not remove the Administrator without cause
unless the Rating Agency Condition shall have been satisfied in connection
therewith.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect with respect to the Notes except as to (a) rights
of registration of transfer and exchange, (b) substitution of mutilated,
destroyed, lost or stolen Notes, (c) rights of Noteholders to receive payments
of principal thereof and interest thereon, (d) Sections 3.3, 3.4, 3.5, 3.7(a),
3.8, 3.10, 3.12, 3.13, 3.15, 3.18 and 3.20, (e) the rights, obligations and
immunities of Indenture Trustee hereunder (including the rights of Indenture
Trustee under Section 6.7 and the obligations of Indenture Trustee under Section
4.2) and (f) the rights of Noteholders as beneficiaries hereof with respect to
the property so deposited with Indenture Trustee payable to all or any of them,
and Indenture Trustee, on demand of and at the expense of Owner Trustee,
-20- 2002-1 Indenture
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to the Notes, when:
(i) either;
(A) all Notes theretofore authenticated and delivered (other
than (1) Notes that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 2.5 and (2) Notes for
which payment money has theretofore been deposited in trust or
segregated and held in trust by Owner Trustee and thereafter repaid to
Owner Trustee or discharged from such trust, as provided in Section
3.3) have been delivered to Indenture Trustee for cancellation; or
(B) all Notes not theretofore delivered to Indenture Trustee
for cancellation;
(1) have become due and payable;
(2) will become due and payable at the Final Scheduled
Payment Date within one year; or
(3) are to be called for redemption within one year under
arrangements satisfactory to Indenture Trustee for the giving of
notice of redemption by Indenture Trustee in the name, and at
the expense, of Owner Trustee;
and Owner Trustee, in the case of clauses (1), (2) or (3), has
irrevocably deposited or caused to be irrevocably deposited with
Indenture Trustee cash or direct obligations of or obligations
guaranteed by the United States of America (which will mature prior to
the date such amounts are payable), in trust for such purpose, in an
amount sufficient to pay and discharge the entire indebtedness on such
Notes not theretofore delivered to Indenture Trustee for cancellation
when due to the Final Scheduled Payment Date or Redemption Date (if
Notes shall have been called for redemption pursuant to Section
10.1(a)), as the case may be;
(ii) Owner Trustee has paid or caused to be paid all other sums
payable hereunder by Owner Trustee; and
(iii) Owner Trustee has delivered to Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or Indenture
Trustee) an Independent Certificate from a firm of certified public
accountants, each meeting the applicable requirements of Section 11.1(a)
and each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with.
SECTION 4.2 Application of Trust Money. All moneys deposited with Indenture
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent, as
-21- 2002-1 Indenture
Servicer may direct, to the Holders of the particular Notes for the payment or
redemption of which such moneys have been deposited with Indenture Trustee, of
all sums due and to become due thereon for principal and interest; but such
moneys need not be segregated from other funds except to the extent required
herein or in the Sale and Servicing Agreement or required by law.
SECTION 4.3 Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to the Notes, all
moneys then held by any Paying Agent other than Indenture Trustee under the
provisions of this Indenture with respect to such Notes shall, upon demand of
Owner Trustee, be paid to Indenture Trustee to be held and applied according to
Section 3.3 and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default", wherever used herein,
means the occurrence of any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest on any Note of the Controlling
Note Class when the same becomes due and payable, and such default shall
continue for a period of five days;
(b) default in the payment of the principal of or any installment of the
principal of any Note when the same becomes due and payable;
(c) default in the observance or performance of any material covenant or
agreement of Owner Trustee made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere in
this Section 5.11 specifically dealt with), or any representation or warranty of
Owner Trustee made in this Indenture or in any certificate or other writing
delivered pursuant hereto or in connection herewith proving to have been
incorrect in any material respect as of the time when the same shall have been
made, and such default shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was incorrect
shall not have been eliminated or otherwise cured, for a period of 30 days (or
for such longer period, not in excess of 90 days, as may be reasonably necessary
to remedy such default; provided that such default is capable of remedy within
90 days or less and Servicer on behalf of Owner Trustee delivers an Officer's
Certificate to Indenture Trustee to the effect that Owner Trustee has commenced,
or will promptly commence and diligently pursue, all reasonable efforts to
remedy such default) after the earlier of discovery or the time that there shall
have been given, by registered or certified mail, to Owner Trustee by Indenture
Trustee or to Owner Trustee and Indenture Trustee by the Holders of at least 25%
of the Outstanding Amount of the Controlling Note Class of Notes, 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;
-22- 2002-1 Indenture
(d) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Trust or any substantial part of
the Trust Estate in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of Owner Trustee or for any substantial part of the Trust
Estate, or ordering the winding-up or liquidation of the Trust's affairs, and
such decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(e) the commencement by Owner Trustee 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 Owner Trustee to the entry of an order
for relief in an involuntary case under any such law, or the consent by Owner
Trustee to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of Owner Trustee
or for any substantial part of the Trust Estate, or the making by Owner Trustee
of any general assignment for the benefit of creditors, or the failure by Owner
Trustee generally to pay its debts as such debts become due, or the taking of
action by Owner Trustee in furtherance of any of the foregoing.
Owner Trustee shall deliver to Indenture Trustee, within five days after
the occurrence thereof, written notice in the form of an Officer's Certificate
of any event which with the giving of notice and the lapse of time would become
an Event of Default under clause (c), its status and what action Owner Trustee
is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If an Event
of Default should occur and be continuing, then and in every such case Indenture
Trustee or the Holders of Notes representing not less than a majority of the
Outstanding Amount of the Controlling Note Class of Notes may declare all the
Notes to be immediately due and payable, by a notice in writing to Owner Trustee
(and to Indenture Trustee if given by Noteholders), and upon any such
declaration the unpaid principal amount of such Notes, together with accrued and
unpaid interest thereon through the date of acceleration, shall become
immediately due and payable.
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by Indenture Trustee as hereinafter in this Article V provided, the
Holders of Notes representing a majority of the Outstanding Amount of the
Controlling Note Class of Notes, by written notice to Owner Trustee and
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
(a) Owner Trustee has paid or deposited with Indenture Trustee a sum
sufficient to pay;
(i) 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
-23- 2002-1 Indenture
(ii) all sums paid or advanced by Indenture Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of Indenture
Trustee and its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the principal of
the Notes that has become due solely by such acceleration, have been cured or
waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. (a) Owner Trustee covenants that if (i) default is made in
the payment of any interest on any Note when the same becomes due and payable,
and such default continues for a period of five days, or (ii) default is made in
the payment of the principal of or any installment of the principal of any Note
when the same becomes due and payable, Owner Trustee will, upon demand of
Indenture Trustee, pay to it, for the benefit of the Holders of the Notes, the
whole amount then due and payable on such Notes for principal and interest, with
interest upon the overdue principal, and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of interest, at
the rate specified in Section 2.7 and in addition thereto such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of Indenture
Trustee and its agents and counsel.
(b) In case Owner Trustee shall fail forthwith to pay such amounts upon
such demand, Indenture Trustee, in its own name and as trustee of an express
trust, may institute a proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against Owner Trustee or other obligor upon such Notes and
collect in the manner provided by law out of the property of Owner Trustee or
other obligor upon such Notes, wherever situated, the moneys adjudged or decreed
to be payable.
(c) If an Event of Default occurs and is continuing, Indenture Trustee
may, as more particularly provided in Section 5.4, in its discretion, proceed to
protect and enforce its rights and the rights of the Noteholders, by such
appropriate proceedings as Indenture Trustee shall deem most effective to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to Owner Trustee or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Trust Estate, proceedings under Title 11 of the United States Code or any
other applicable Federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of Owner Trustee or its property or such other obligor or
Person, or in case of any other comparable judicial proceedings relative to
Owner Trustee or
-24- 2002-1 Indenture
other obligor upon the Notes, or to the creditors or property of Owner Trustee
or such other obligor, Indenture Trustee, irrespective of whether the principal
of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether Indenture Trustee shall
have made any demand pursuant to the provisions of this Section 5.3, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of Indenture Trustee (including any claim for reasonable
compensation to Indenture Trustee and each predecessor Indenture Trustee,
and their respective agents, attorneys and counsel, and for reimbursement
of all expenses and liabilities incurred, and all advances made, by
Indenture Trustee and each predecessor Indenture Trustee, except as a
result of negligence, bad faith or willful misconduct) and of the
Noteholders allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Notes in any election of a trustee, a standby
trustee or person performing similar functions in any such proceedings;
(iii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Noteholders and of Indenture Trustee on their
behalf; and
(iv) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of Indenture
Trustee or the Holders of Notes allowed in any judicial proceedings
relative to Owner Trustee, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Noteholders to make
payments to Indenture Trustee, and, in the event that Indenture Trustee shall
consent to the making of payments directly to such Noteholders, to pay to
Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to Indenture Trustee, each predecessor Indenture Trustee and their
respective agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by Indenture Trustee and each predecessor
Indenture Trustee except as a result of negligence, bad faith or willful
misconduct.
(e) Nothing herein contained shall be deemed to authorize Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize Indenture Trustee to vote in respect of the claim of any Noteholder in
any such proceeding except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar person.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by Indenture Trustee without the
possession of any of the Notes or
-25- 2002-1 Indenture
the production thereof in any trial or other proceedings relative thereto, and
any such action or proceedings instituted by Indenture Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment,
subject to the payment of the expenses, disbursements and compensation of
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Notes.
(g) In any proceedings brought by Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which Indenture Trustee shall be a party), Indenture Trustee shall be held to
represent all the Holders of the Notes, and it shall not be necessary to make
any Noteholder a party to any such proceedings.
SECTION 5.4 Remedies; Priorities. (a) If an Event of Default shall have
occurred and be continuing, Indenture Trustee may do one or more of the
following (subject to Section 5.5):
(i) institute proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes
or under this Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from Owner Trustee
and any other obligor upon such Notes moneys adjudged due;
(ii) institute proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the rights and remedies
of Indenture Trustee and the Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
provided that Indenture Trustee may not sell or otherwise liquidate the Trust
Estate following an Event of Default unless:
(A) the Event of Default is of the type described in Section
5.1(a) or (b); or
(B) with respect to an Event of Default described in Section
5.1(c):
(1) the Noteholders of all Outstanding Notes and the
Certificateholders of all outstanding Certificates consent
thereto; or
(2) the proceeds of such sale or liquidation are
sufficient to pay in full the principal of and accrued interest
on the Outstanding Notes and outstanding Certificates.
(C) with respect to any Event of Default described in Section
5.1(d) and (e):
-26- 0000-0 Xxxxxxxxx
(1) the Noteholders of Notes evidencing 100% of the
principal amount of the Controlling Note Class consent thereto;
or
(2) the proceeds of such sale or liquidation are
sufficient to pay in full the principal of and the accrued
interest on the Outstanding Notes; or
(3) the Indenture Trustee
(x) determines (but shall have no obligation to make
such determination) that the Collateral will not continue
to provide sufficient funds for the payment of principal of
and interest on the Notes as they would have become due if
the Notes had not been declared due and payable; and
(y) obtains the consent of Noteholders of Notes
evidencing not less than 66-2/3% of the principal amount of
the Controlling Note Class. or
In determining such sufficiency or insufficiency with respect to clause (B)(2)
and (C)(2) or (C)(3)(x), Indenture Trustee may, but need not, obtain and rely
upon an opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
(b) Notwithstanding the provisions of Section 8.2, following the
occurrence and during the continuation of an Event of Default specified in
Section 5.1(a), 5.1(b), 5.1(d) or 5.1(e) which has resulted in an acceleration
of the Notes (or following the occurrence of any such event after an Event of
Default specified in Section 5.1(c) has occurred and the Trust Estate has been
liquidated), if Indenture Trustee collects any money or property, it shall pay
out such money or property (and other amounts including amounts held on deposit
in the Reserve Account) held as Collateral for the benefit of the Noteholders,
net of liquidation costs associated with the sale of the Trust Estate, in the
following order:
FIRST: to Indenture Trustee for amounts due under Section 6.7 provided that
such amount paid pursuant to this clause FIRST shall not exceed $200,000 in the
aggregate;
SECOND: to Servicer for due and unpaid Servicing Fees;
THIRD: to Class A Noteholders for amounts due and unpaid on the Class A
Notes for interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Class A Notes for interest;
FOURTH: to Noteholders of the Class A-1 Notes for amounts due and unpaid on
the Class A-1 Notes for principal, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Class A-1 Notes for
principal, until principal amount of the Outstanding Class A-1 Notes is reduced
to zero;
-27- 2002-1 Indenture
FIFTH: to Noteholders of the Class A-2 Notes, Class A-3 Notes and
Class A-4 Notes, for amounts due and unpaid on the Class A-2 Notes, Class
A-3 Notes and Class A-4 Notes for principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class
A-2 Notes, Class A-3 Notes and Class A-4 Notes for principal, until the
principal amount of the Outstanding Class A-2 Notes, Class A-3 Notes and
Class A-4 Notes is reduced to zero;
SIXTH: to Noteholders of the Class B Notes for amounts due and unpaid
on the Class B Notes in respect of interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class
B Notes for interest;
SEVENTH to Noteholders of the Class B Notes for amounts due and unpaid
on the Class B Notes for principal, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Class B Notes
for principal, until the principal amount of the Outstanding Class B Notes
is reduced to zero;
EIGHTH: to the Indenture Trustee, any amounts due under Section 6.7
not paid pursuant to clause FIRST above; and
NINTH: to the Certificate Distribution Account, for distribution to
the Certificateholders.
Indenture Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 5.4. At least 15 days before such record
date, Owner Trustee shall mail to each Noteholder and Indenture Trustee a notice
that states the record date, the payment date and, based on information provided
by the Servicer, the amount to be paid. The Indenture Trustee shall not be
required to determine any amount required to be paid pursuant to any of clauses
SECOND to SEVENTH or clause NINTH above, except in its capacity (if any) as
Successor Servicer.
SECTION 5.5 Optional Preservation of the Receivables. If the Notes have
been declared to be due and payable under Section 5.2 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, Indenture Trustee may, but need not, elect to maintain possession of
the Trust Estate. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and Indenture Trustee shall take such desire into account
when determining whether or not to maintain possession of the Trust Estate. In
determining whether to maintain possession of the Trust Estate, Indenture
Trustee may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to Indenture Trustee
of a continuing Event of Default;
-28- 2002-1 Indenture
(b) the Holders of not less than 25% of the Outstanding Amount of the
Controlling Note Class of Notes have made written request to Indenture Trustee
to institute such proceeding in respect of such Event of Default in its own name
as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to Indenture Trustee indemnity
reasonably satisfactory to it against the costs, expenses and liabilities to be
incurred in complying with such request;
(d) Indenture Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such proceedings;
(e) no direction inconsistent with such written request has been given to
Indenture Trustee during such 60-day period by the Holders of a majority of the
Outstanding Amount of the Controlling Note Class of Notes; and
(f) such Event of Default actually shall have occurred and shall be
continuing;
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner herein provided.
In the event Indenture Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of Notes, each
representing less than a majority of the Outstanding Amount of the Controlling
Note Class of Notes, Indenture Trustee shall submit the matter to a vote of the
Controlling Note Class of Notes to determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and
Interest. Notwithstanding any other provisions in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Note on or after the
respective due dates thereof expressed in such Note or this Indenture (or, in
the case of redemption, on or after the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies. If Indenture Trustee or any
Noteholder has instituted any Proceeding to enforce any right or remedy under
this Indenture and such Proceeding has been discontinued or abandoned for any
reason or has been determined adversely to Indenture Trustee or to such
Noteholder, then and in every such case Owner Trustee, Indenture Trustee and the
Noteholders shall, subject to any determination in such Proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of Indenture Trustee and the Noteholders shall continue
as though no such Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to Indenture Trustee or to the Noteholders is
intended to be exclusive of any
-29- 2002-1 Indenture
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of
Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to Indenture Trustee or to the Noteholders may be exercised from time to time,
and as often as may be deemed expedient, by Indenture Trustee or by the
Noteholders, as the case may be.
SECTION 5.11 Control by Controlling Note Class of Noteholders. The Holders
of a majority of the Outstanding Amount of the Controlling Note Class shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on Indenture Trustee; provided that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture;
(b) subject to the express terms of Section 5.4, any direction to
Indenture Trustee to sell or liquidate the Trust Estate shall be by the Holders
of Notes representing not less than 100% of the Outstanding Amount of the
Controlling Note Class of Notes;
(c) if the conditions set forth in Section 5.5 have been satisfied and
Indenture Trustee elects to retain the Trust Estate pursuant to such Section,
then any direction to Indenture Trustee by Holders of Notes representing less
than 100% of the Outstanding Amount of the Controlling Note Class of Notes to
sell or liquidate the Trust Estate shall be of no force and effect;
(d) Indenture Trustee may take any other action deemed proper by Indenture
Trustee that is not inconsistent with such direction; and
(e) such direction shall be in writing;
provided, further, that, subject to Section 6.1, Indenture Trustee need not take
any action that it determines might involve it in liability or might materially
adversely affect the rights of any Noteholders not consenting to such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of Notes of not less than a majority of the Outstanding Amount of the
Controlling Note Class of Notes may waive any past Default or Event of Default
and its consequences except a Default (a) in payment of principal of or interest
on any of the Notes, (b) in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of the Holder of each Note or
(c) depriving the Indenture Trustee or any Noteholder of any Lien, which waiver
shall require the consent of the Indenture Trustee or such Noteholder, as the
case may be. In the case of any such
-30- 2002-1 Indenture
waiver, Owner Trustee, Indenture Trustee and the Holders of the Notes shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Note by such Holder's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 5.13 shall not apply to (a) any suit instituted by
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes (or in the case of a right or remedy under this
Indenture which is instituted by the Controlling Note Class, more than 10% of
the Outstanding Amount of the Controlling Note Class) or (c) any suit instituted
by any Noteholder for the enforcement of the payment of principal of or interest
on any Note on or after the respective due dates expressed in such Note and in
this Indenture (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. Owner Trustee covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
Owner Trustee (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to Indenture Trustee,
but will suffer and permit the execution of every such power as though no such
law had been enacted.
SECTION 5.15 Action on Notes. Indenture Trustee's right to seek and recover
judgment on the Notes or under this Indenture shall not be affected by the
seeking, obtaining or application of any other relief under or with respect to
this Indenture. Neither the Lien of this Indenture nor any rights or remedies of
Indenture Trustee or the Noteholders shall be impaired by the recovery of any
judgment by Indenture Trustee against Owner Trustee or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of Owner Trustee. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations. (a)
Promptly following a request from Indenture Trustee to do so and at
Administrator's expense,
-31- 2002-1 Indenture
Owner Trustee agrees to take all such lawful action as Indenture Trustee may
request to compel or secure the performance and observance by Seller and
Servicer, as applicable, of each of their obligations to Owner Trustee under or
in connection with the Sale and Servicing Agreement or by the Seller or M&I
Bank, Northwoods or Bank One (as agent for Preferred Receivables Funding
Corporation), as applicable, of each of their obligations under or in connection
with the Purchase Agreement, in each case, in accordance with the terms thereof,
and to exercise any and all rights, remedies, powers and privileges lawfully
available to Owner Trustee under or in connection with the Sale and Servicing
Agreement and the Purchase Agreement, as the case may be, to the extent and in
the manner directed by Indenture Trustee, including the transmission of notices
of default on the part of Seller, Servicer M&I Bank, Northwoods or Bank One (as
agent for Preferred Receivables Funding Corporation) thereunder and the
institution of legal or administrative actions or proceedings to compel or
secure performance by Seller or Servicer of each of their obligations under the
Sale and Servicing Agreement or by the Seller or M&I Bank, Northwoods or Bank
One (as agent for Preferred Receivables Funding Corporation), as applicable, of
each of their obligations under or in connection with the Purchase Agreement.
(b) If an Event of Default has occurred and is continuing, Indenture
Trustee may, and, at the direction (which direction shall be in writing or by
telephone (confirmed in writing promptly thereafter)) of the Holders of 66-2/3%
of the Outstanding Amount of the Controlling Note Class of Notes shall, exercise
all rights, remedies, powers, privileges and claims of Owner Trustee against
Seller or Servicer under or in connection with the Sale and Servicing Agreement,
or against the Seller, M&I Bank, Northwoods or Bank One (as agent for Preferred
Receivables Funding Corporation) under the Purchase Agreement, including the
right or power to take any action to compel or secure performance or observance
by Seller, Servicer, M&I Bank, Northwoods or Bank One (as agent for Preferred
Receivables Funding Corporation) of each of their obligations to Owner Trustee
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Sale and Servicing Agreement or any Purchase
Agreement, as applicable, and any right of Owner Trustee to take such action
shall be suspended.
ARTICLE VI
INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee. (a) If an Event of Default has
occurred and is continuing, of which a Responsible Officer of Indenture Trustee
has actual knowledge, Indenture Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) Indenture Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and the other Basic
Documents to which it is a party and no implied covenants or obligations
shall be read into this Indenture and the other Basic Documents against
Indenture Trustee; and
(ii) in the absence of bad faith on its part, Indenture Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed
-32- 2002-1 Indenture
therein, upon certificates or opinions furnished to Indenture Trustee and
conforming to the requirements of this Indenture and the other Basic
Documents; however, Indenture Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture and the other Basic Documents.
(c) Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 6.1;
(ii) Indenture Trustee shall not be liable for any error of judgment
made in good faith unless it is proved that Indenture Trustee was negligent
in ascertaining the pertinent facts; and
(iii) Indenture Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to any Basic Document or the direction of the
Holders of a majority in principal amount of the required Notes.
(d) Indenture Trustee shall not be liable for interest on any money
received by it except as Indenture Trustee may agree in writing with Owner
Trustee.
(e) Money held in trust by Indenture Trustee need not be segregated from
other funds except to the extent required by law or the terms of this Indenture
or the Sale and Servicing Agreement.
(f) No provision of this Indenture or any other Basic Document shall
require Indenture Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder or
thereunder or in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not assured to it.
(g) Every provision of this Indenture and each other Basic Document
relating to the conduct or affecting the liability of or affording protection to
Indenture Trustee shall be subject to the provisions of this Section 6.1 and to
the provisions of the TIA.
(h) Indenture Trustee shall take all actions required to be taken by the
Indenture Trustee under the Sale and Servicing Agreement.
SECTION 6.2 Rights of Indenture Trustee. (a) Indenture Trustee may
conclusively rely and shall be protected in acting or refraining from acting on
any document believed by it to be genuine and to have been signed or presented
by the proper person. Indenture Trustee need not investigate any fact or matter
stated in the document. The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, note or other paper or document, but the Indenture Trustee, in its sole
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Indenture Trustee shall
-33- 2002-1 Indenture
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Owner Trustee, Seller or the
Servicer, personally or by agent or attorney.
(b) Before Indenture Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel. Indenture Trustee shall not
be liable for any action it takes, suffers or omits to take in good faith in
reliance on the Officer's Certificate or Opinion of Counsel.
The Indenture Trustee shall be under no obligation to exercise any of the
powers vested in it by this Indenture or any other Basic Document at the request
or direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Indenture Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(c) Indenture Trustee may execute any of the trusts or powers hereunder
and under the other Basic Documents or perform any duties hereunder or
thereunder either directly or by or through agents or attorneys or a custodian
or nominee, and Indenture Trustee shall not be responsible for any misconduct or
negligence on the part of, or for the supervision of, Seller, or any other such
agent, attorney, custodian or nominee appointed with due care by it hereunder.
Indenture Trustee shall have no duty to monitor the performance of Owner
Trustee.
(d) Indenture Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, that Indenture Trustee's conduct does not constitute willful
misconduct, negligence or bad faith.
(e) Indenture Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture, the Notes
and the other Basic Documents shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder or under any other Basic Document in good faith and in accordance
with the advice or opinion of such counsel.
(f) Except in its capacity as Successor Servicer, the Indenture Trustee
shall not have any obligation or other duty to make, arrange or ensure the
completion of any recording, filing or registration of any instrument or other
document (including any UCC financing statements), or any amendments thereof or
supplements thereto, with respect to any Receivable or Financed Vehicle, or to
determine whether any such document, amendment or supplement is in suitable form
for any purpose, and shall not have any obligation or other duty with respect to
the payment of any fee, tax or other charge in connection therewith.
(g) Except in its capacity as Successor Servicer, the Indenture Trustee
shall not have any obligation to see to the payment or discharge of any Lien
securing the Receivables, the application of any payment of interest or
principal in respect of any Receivable or the transfer or delivery of property
released from any such Lien, or to make any demand or give any notice with
respect thereto.
(h) The Indenture Trustee shall not have any liability for the acts or
omissions of other parties that are not in accordance with the Basic Documents
and shall not be concerned
-34- 2002-1 Indenture
with or accountable for the use or application of monies deposited or withdrawn,
or required to be deposited or withdrawn, to or from any account by any other
party or, to the extent directed to make any such deposit or withdrawal by any
such party, by the Indenture Trustee.
(i) Any request or direction of the Owner Trustee shall be sufficiently
evidenced by an Issuer Request or Issuer Order.
(j) The Indenture Trustee shall not be required to provide any surety or
bond of any kind in connection with the acceptance or performance of its duties
hereunder or under any other Basic Document.
(k) The Indenture Trustee shall not have any responsibility or liability
with respect to the legality, validity or enforceability of any Receivable or
the sufficiency of any agreement, instrument or other document evidencing or
otherwise related to any Receivable. The Indenture Trustee shall have no
obligation or other duty to inspect, review or otherwise examine any such
document (including any document in a Receivable File) for any purpose.
SECTION 6.3 Individual Rights of Indenture Trustee. Indenture Trustee in
its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with Owner Trustee or its Affiliates with the same rights
it would have if it were not Indenture Trustee. Any Note Paying Agent,
Authenticating Agent Note Registrar, co-registrar, co-paying agent or other
agent of the Indenture Trustee may do the same with like rights. However,
Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4 Indenture Trustee's Disclaimer. Indenture Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes or any other Basic Document, shall not be
accountable for Owner Trustee's use of the proceeds from the Notes, and shall
not be responsible for any statement or omission of Owner Trustee in the
Indenture or any other Basic Document or in any document issued in connection
with the sale of the Notes or in the Notes other than Indenture Trustee's
certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing and
if it is either actually known or written notice of the existence thereof has
been delivered to a Responsible Officer of Indenture Trustee, Indenture Trustee
shall mail to each Noteholder notice of the Default within 90 days after such
knowledge or notice occurs. Except in the case of a Default in payment of
principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), Indenture Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of Noteholders.
The Indenture Trustee shall not be charged with knowledge of a Default, Event of
Default or Servicer Termination Event unless a Responsible Officer of the
Indenture Trustee has actual knowledge thereof or shall have received written
notice thereof.
SECTION 6.6 Reports by Indenture Trustee to Holders. Indenture Trustee
shall deliver to each Noteholder such information as may be reasonably required
to enable such Holder to prepare its Federal and state income tax returns.
-35- 2002-1 Indenture
SECTION 6.7 Compensation and Indemnity. The Administrator shall pay to
Indenture Trustee on the Closing Date and from time to time reasonable
compensation for its services as set forth in Schedule A attached hereto and
made a part hereof (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust). Except as
otherwise expressly provided for in this Indenture, the Administrator shall
reimburse Indenture Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by Indenture Trustee in accordance
with any provision of this Indenture or any other Basic Document (including the
reasonable compensation, expenses and disbursements of such agents and counsel
as Indenture Trustee may employee in connection with the exercise and
performance of its rights and its duties hereunder), except any such expense as
may be attributable to its willful misconduct, negligence or bad faith. The
Administrator shall indemnify Indenture Trustee (individually and in its
capacity as such) and its successors, assigns, directors, officers, employees
and agents from and against, any and all loss, liability or expense (including
reasonable legal fees and expenses) incurred by Indenture Trustee in connection
with the acceptance of or administration of this trust and the performance of
its duties hereunder or thereunder, provided, however, that the Administrator
shall not be liable for or required to indemnify Indenture Trustee from and
against any of the foregoing expenses arising or resulting from Indenture
Trustee's own willful misconduct, negligence or bad faith or to the extent
arising from the breach by Indenture Trustee of any of its representations and
warranties and covenants set forth herein.
Administrator's payment obligations and indemnifications to Indenture
Trustee pursuant to this Section 6.7 and the Administration Agreement referenced
in the preceding paragraph shall survive the resignation or removal of Indenture
Trustee and the termination, satisfaction and discharge of this Indenture
subject to a satisfaction of the Rating Agency Condition. When Indenture Trustee
incurs expenses after the occurrence of a Default specified in Section 5.1(d) or
(e) with respect to Owner Trustee, the expenses are intended to constitute
expenses of administration under Title 11 of the United States Code or any other
applicable Federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee. Indenture Trustee may resign
at any time by so notifying Owner Trustee. The Holders of a majority in
Outstanding Amount of the Controlling Note Class of Notes may remove Indenture
Trustee by so notifying Indenture Trustee and may appoint a successor Indenture
Trustee. Owner Trustee shall remove Indenture Trustee if:
(a) Indenture Trustee fails to comply with Section 6.11;
(b) an Insolvency Event occurs with respect to Indenture Trustee;
(c) a receiver or other public officer takes charge of Indenture Trustee
or its property; or
(d) Indenture Trustee otherwise becomes incapable of acting.
-36- 2002-1 Indenture
If Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (Indenture Trustee in such event
being referred to herein as the retiring Indenture Trustee), Owner Trustee shall
promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to Owner Trustee. Thereupon
the resignation or removal of the retiring Indenture Trustee shall become
effective, and the successor Indenture Trustee shall have all the rights, powers
and duties of Indenture Trustee under this Indenture subject to satisfaction of
the Rating Agency Condition. The successor Indenture Trustee shall mail a notice
of its succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the successor Indenture
Trustee.
If a successor Indenture Trustee does not take office within 30 days after
the retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, Owner Trustee or the Holders of a majority in Outstanding Amount of the
Controlling Note Class of Notes may petition any court of competent jurisdiction
for the appointment of a successor Indenture Trustee.
If Indenture Trustee fails to comply with Section 6.11, any Noteholder may
petition any court of competent jurisdiction for the removal of Indenture
Trustee and the appointment of a successor Indenture Trustee.
Any resignation or removal of Indenture Trustee and appointment of a
Successor Indenture Trustee pursuant to any of the provisions of this Section
6.8 shall not become effective until acceptance of appointment by the successor
Indenture Trustee pursuant to this Section 6.8 and payment of all fees and
expenses owed to the outgoing Indenture Trustee.
Notwithstanding the resignation or removal of Indenture Trustee pursuant to
this Section 6.8, Owner Trustee's and Administrator's obligations under Section
6.7 shall continue for the benefit of the retiring Indenture Trustee.
Indenture Trustee shall not be liable for the acts or omissions of any
successor Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. If Indenture Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Indenture Trustee; provided that such
corporation or banking association shall be otherwise qualified and eligible
under Section 6.11. Indenture Trustee shall provide the Rating Agencies and the
Administrator prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion or
consolidation to Indenture Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to Indenture Trustee may adopt the certificate of authentication
of any predecessor trustee, and deliver such Notes so authenticated; and in case
at that time any of the Notes shall not have been authenticated, any successor
to Indenture Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor to Indenture Trustee; and
in all such cases such certificates shall
-37- 2002-1 Indenture
have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of Indenture Trustee shall have.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee. (a) Notwithstanding any other provisions of this Indenture, at any
time, after delivering written notice to the Administrator, for the purpose of
meeting any legal requirement of any jurisdiction in which any part of Owner
Trustee may at the time be located, Indenture Trustee shall have the power and
may execute and deliver all instruments to appoint one or more Persons to act as
a co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the Trust, and to vest in such Person or Persons, in such capacity
and for the benefit of the Noteholders, such title to the Trust, or any part
hereof, and, subject to the other provisions of this Section 6.10, such powers,
duties, obligations, rights and trusts as Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon Indenture Trustee shall be conferred or imposed upon and exercised or
performed by Indenture Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not authorized to act separately without Indenture Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to
Owner Trustee or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder, including acts or omissions
of predecessor or successor trustees; and
(iii) Indenture Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to Indenture Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, Indenture Trustee. Every such instrument shall be filed with
Indenture Trustee.
-38- 2002-1 Indenture
(d) Any separate trustee or co-trustee may at any time constitute
Indenture Trustee its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall invest in and be
exercised by Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. (a) Indenture Trustee shall at
all times satisfy the requirements of TIA (S) 310(a). Indenture Trustee shall
have a combined capital and surplus of at least $20,000,000 as set forth in its
most recent published annual report of condition and shall have a long term debt
rating of investment grade or better by the Rating Agencies or shall otherwise
be acceptable to the Rating Agencies. Indenture Trustee shall comply with TIA
(S) 310(b), including the optional provision permitted by the second sentence of
TIA (S) 310(b)(9); provided that there shall be excluded from the operation of
TIA (S) 310(b)(1) any indenture or indentures under which other securities of
Owner Trustee are outstanding if the requirements for such exclusion set forth
in TIA (S) 310(b)(1) are met.
(b) Within ninety (90) days after ascertaining the occurrence of an Event
of Default which shall not have been cured or waived, unless authorized by the
TIA or the Commission, the Indenture Trustee shall resign with respect to the
Class A Notes and/or the Class B Notes in accordance with Section 6.8 of this
Indenture, and the Owner Trustee shall appoint a successor Indenture Trustee for
two or all of such Classes, as applicable, so that there will be separate
Indenture Trustees for the Class A Notes and the Class B Notes. In the event the
Indenture Trustee fails to comply with the terms of the preceding sentence, the
Indenture Trustee shall comply with clauses (ii) and (iii) of TIA Section
310(b).
(c) In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any Class of Notes pursuant to this Section 6.11, Owner
Trustee, 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.
-39- 2002-1 Indenture
SECTION 6.12 Preferential Collection of Claims Against Owner Trustee.
Indenture Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). An Indenture Trustee who has resigned or
been removed shall be subject to TIA (S) 311(a) to the extent indicated.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Owner Trustee to Furnish Indenture Trustee Names and Addresses
of Noteholders. Owner Trustee will furnish or cause to be furnished to Indenture
Trustee (a)not more than five days after the earlier of (i) each Record Date and
(ii) three months after the last Record Date, a list, in such form as Indenture
Trustee may reasonably require, of the names and addresses of the Holders as of
such Record Date, (b) at such other times as Indenture Trustee may request in
writing, within 30 days after receipt by Owner Trustee of any such request, a
list of similar form and content as of a date not more than 10 days prior to the
time such list is furnished; provided that so long as (i) Indenture Trustee or
its designee is Note Registrar, or (ii) the Notes are Book-Entry Notes, no such
list shall be required to be furnished and in such case, upon the written
request of Owner Trustee or Owner Trustee, Indenture Trustee or its designee
will promptly furnish Owner Trustee a list of Noteholders as of the date
specified by Owner Trustee.
SECTION 7.2 Preservation of Information; Communications to Noteholders. (a)
Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders contained in the most recent
list furnished to Indenture Trustee as provided in Section 7.1 and the names and
addresses of Holders received by Indenture Trustee in its capacity as Note
Registrar. Indenture Trustee may destroy any list furnished to it as provided in
such Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA (S) 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes. Upon receipt by the Indenture Trustee of any request by three or more
Noteholders or by one or more Noteholders of Notes evidencing not less than 25%
of the Outstanding Amount of Notes to receive a copy of the current list of
Noteholders (whether or not made pursuant to TIA (S) 312(b)), the Indenture
Trustee shall promptly notify the Administrator thereof by providing to the
Administrator a copy of such request and a copy of the list of Noteholders
produced in response thereto.
(c) Owner Trustee, Indenture Trustee and Note Registrar shall have the
protection of TIA (S) 312(c).
SECTION 7.3 Reports by Owner Trustee. Owner Trustee shall:
(i) file with Indenture Trustee, at the time that the Trust is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Trust may be required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
-40- 2002-1 Indenture
(ii) file with Indenture Trustee and the Commission in accordance
with rules and regulations prescribed from time to time by the Commission
such additional information, documents and reports with respect to
compliance by the Trust with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations; and
(iii) supply to Indenture Trustee (and Indenture Trustee shall
transmit by mail to all Noteholders described in TIA (S) 313(c)) such
summaries of any information, documents and reports required to be filed by
the Trust pursuant to clauses (i) and (ii) of this Section 7.3(a) as may be
required by rules and regulations prescribed from time to time by the
Commission.
(a) Unless Owner Trustee otherwise determines, the fiscal year of the
Trust shall end on December 31 of each year.
SECTION 7.4 Reports by Indenture Trustee. (a) If required by TIA (S)
313(a), within 60 days after each May 15, beginning with May 15, 2002, Indenture
Trustee shall mail to each Noteholder as required by TIA (S) 313(c) a brief
report dated as of such date that complies with TIA (S) 313(a). Indenture
Trustee also shall comply with TIA (S) 313(b)(1). A copy of each report at the
time of its mailing to Noteholders shall be filed by Indenture Trustee with the
Commission and each stock exchange, if any, on which the Notes are listed. Owner
Trustee shall notify Indenture Trustee if and when the Notes are listed on any
stock exchange.
(b) Unless otherwise directed by the Seller in writing, the Indenture
Trustee shall prepare, sign and file with the Commission, on behalf of the
Seller, no later than ten days after each Payment Date, the Servicer's Report on
the appropriate form and in the appropriate medium authorized or prescribed
therefor under the Exchange Act of 1934. The Indenture Trustee shall promptly
forward copies of all filings made pursuant to this Section 7.4(b) to the
Seller.
(c) Within the prescribed period of time for tax reporting purposed after
the end of each calendar year during the term of this Agreement, the Indenture
Trustee shall mail, to each Person who at any time during such calendar year
shall have been a holder of Notes and received any payments thereon, a statement
containing such information as may be required by the Code and applicable
Treasury Regulations to enable such security holder to prepare its federal
income tax returns.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise expressly provided
herein, Indenture Trustee may demand payment or delivery of, and shall receive
and collect, directly and without intervention or assistance of any fiscal agent
or other intermediary, all money and other property payable to or receivable by
Indenture Trustee pursuant to this Indenture. Indenture Trustee shall apply all
such money received by it as provided in this Indenture. Except as otherwise
expressly provided in this Indenture, if any default occurs in the making of any
payment or performance under any agreement or instrument that is part of the
Trust Estate, Indenture Trustee may take such action as may be appropriate to
enforce such payment or
-41- 2002-1 Indenture
performance, including the institution and prosecution of appropriate
proceedings. Any such action shall be without prejudice to any right to claim a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.
SECTION 8.2 Trust Accounts. (a) On or prior to the Closing Date, Owner
Trustee shall cause Servicer to establish, in the name of Indenture Trustee, for
the benefit of the Noteholders and the Certificateholders, the Trust Accounts as
provided in Section 5.1 of the Sale and Servicing Agreement.
(b) On or before each Payment Date, the Owner Trustee shall cause the
Servicer to deposit all Available Collections with respect to the Collection
Period preceding such Payment Date in the Collection Account as provided in
Sections 5.2 and 5.4 of the Sale and Servicing Agreement. On or before each
Deposit Date, all amounts required to be withdrawn from the Reserve Account and
deposited in the Collection Account pursuant to Section 5.5 of the Sale and
Servicing Agreement shall be withdrawn by the Indenture Trustee from the Reserve
Account and deposited to the Collection Account as provided therein, as to which
Owner Trustee shall cause Servicer to timely provide the related instructions.
(c) On each Payment Date (after deposits have been made in the Collection
Account), the Indenture Trustee shall make the withdrawal from the Collection
Account and make a deposit to the Note Distribution Account in accordance with
Section 5.5(c) of the Sale and Servicing Agreement.
(d) On each Payment Date, the Indenture Trustee (based on the information
contained in the Servicer's Report delivered on or before the related
Determination Date pursuant to Section 4.9 of the Sale and Servicing Agreement)
shall allocate funds on deposit in the Note Distribution Account to the
Principal Distribution Account, the Interest Distribution Account, the Reserve
Account and the Certificate Distribution Account and make distributions and
payments, to the extent of funds on deposit in the Note Distribution Account
with respect to the Collection Period preceding such Payment Date (including
funds, if any, deposited therein from the Reserve Account), in accordance with
the provisions of Section 5.5(b) of the Sale and Servicing Agreement (as to
which Owner Trustee shall cause Servicer to timely provide the related
instructions):
(i) On each Payment Date, the Indenture Trustee (based on the
information contained in the Servicer's Report delivered on or before the
related Determination Date pursuant to Section 4.9 of the Sale and
Servicing Agreement) shall withdraw the funds on deposit in the Interest
Distribution Account with respect to the Collection Period preceding such
Payment Date and make distributions and payments in the following order of
priority:
(A) first, to the Noteholders of Class A Notes, the Accrued
Class A Note Interest; provided that if there are not sufficient funds
available to pay the entire amount of the Accrued Class A Note
Interest, the amounts available shall be applied to the payment of
such interest on the Class A Notes on a pro rata basis based upon the
amount of interest due on each Class of Class A Notes; and
-42- 2002-1 Indenture
(B) second, to the Noteholders of Class B Notes, the Accrued
Class B Note Interest; provided that if there are not sufficient
funds available to pay the entire amount of the Accrued Class B
Note Interest, the amounts available shall be applied to the
payment of such interest on the Class B Notes on a pro rata
basis.
(ii) On each Payment Date, the Indenture Trustee (based on the
information contained in the Servicer's Report delivered on or before
the related Determination Date pursuant to Section 4.9 of the Sale and
Servicing Agreement) shall withdraw the funds on deposit in the
Principal Distribution Account with respect to the Collection Period
preceding such Payment Date and make distributions and payments in the
following order of priority:
(A) first, to the Noteholders of the Class A-1 Notes in
reduction of principal until the principal amount of the
Outstanding Class A-1 Notes has been paid in full; provided that
if there are not sufficient funds available to pay the principal
amount of the Outstanding Class A-1 Notes in full, the amounts
available shall be applied to the payment of principal on the
Class A-1 Notes on a pro rata basis;
(B) second, to the Noteholders of the Class A-2 Notes in
reduction of principal until the principal amount of the
Outstanding Class A-2 Notes has been paid in full; provided that
if there are not sufficient funds available to pay the principal
amount of the Outstanding Class A-2 Notes in full, the amounts
available shall be applied to the payment of principal on the
Class A-2 Notes on a pro rata basis;
(C) third, to the Noteholders of the Class A-3 Notes in
reduction of principal until the principal amount of the
Outstanding Class A-3 Notes has been paid in full; provided that
if there are not sufficient funds available to pay the principal
amount of the Outstanding Class A-3 Notes in full, the amounts
available shall be applied to the payment of principal on the
Class A-3 Notes on a pro rata basis;
(D) fourth, to the Noteholders of the Class A-4 Notes in
reduction of principal until the principal amount of the
Outstanding Class A-4 Notes has been paid in full; provided that
if there are not sufficient funds available to pay the principal
amount of the Outstanding Class A-4 Notes in full, the amounts
available shall be applied to the payment of principal on the
Class A-4 Notes on a pro rata basis;
(E) fifth, to the Noteholders of the Class B Notes in
reduction of principal until the principal amount of the
Outstanding Class B Notes has been paid in full; provided that if
there are not sufficient funds available to pay the principal
amount of the Outstanding Class B Notes in full, the amounts
available shall be applied to the payment of principal on the
Class B Notes on a pro rata basis;
-43- 2002-1 Indenture
(F) sixth, any remaining amounts, to the Certificate
Distribution Account.
(e) On the first Payment Date following the termination of the
Pre-Funding Period, the Indenture Trustee shall, based on the information set
forth in the related Servicer Report, withdraw any remaining funds on deposit in
the Pre-Funding Account (other than investment earnings or income) and pay an
amount equal to the amount of such funds to each Class of Notes on a pro rata
basis (based on the Outstanding Principal Balance of each Class Notes as a
fraction of the original Principal Balance of the Notes); provided that if the
pro rata portion of such amount payable to any Class of Class A Notes exceeds
the aggregate Outstanding Principal Balance of such Class, such excess shall be
distributed to each other Class of Class A Notes on a pro rata basis; and
provided further that if the aggregate amount of such funds is less than or
equal to $100,000, pay an amount equal to the amount of such funds to the
Holders of the Class A Notes in sequential order of priority beginning with the
Class A-1 Notes until the Aggregate Outstanding Principal Balance of each Class
is reduced to zero.
SECTION 8.3 General Provisions Regarding Accounts. (a) The funds in
the Trust Accounts shall be invested in Eligible Investments in accordance with
and subject to Section 5.1(b) of the Sale and Servicing Agreement. Indenture
Trustee shall not be directed to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security interest
Granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to Indenture Trustee
to make any such investment or sale, if requested by Indenture Trustee, Owner
Trustee shall deliver to Indenture Trustee an Opinion of Counsel, acceptable to
Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), Indenture Trustee shall not in any way
be held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any loss on any Eligible Investment included therein except for
losses attributable to Indenture Trustee's failure to make payments on such
Eligible Investments issued by Indenture Trustee, in its commercial capacity as
principal obligor and not as trustee, in accordance with their terms.
(c) If (i) investment directions shall not have been given for any
funds on deposit in the Trust Accounts to Indenture Trustee by 11:00 a.m.
Eastern Time (or such other time as may be agreed by Owner Trustee, Servicer and
Indenture Trustee) on any Business Day; (ii) a Default or Event of Default shall
have occurred and be continuing with respect to the Notes but the Notes shall
not have been declared due and payable pursuant to Section 5.2, or (iii) if such
Notes shall have been declared due and payable following an Event of Default,
amounts collected or receivable from the Trust Estate are being applied in
accordance with Section 5.5 as if there had not been such a declaration; then
Indenture Trustee shall, to the fullest extent practicable, invest and reinvest
funds in the Trust Accounts in one or more Eligible Investments in accordance
with the standing instructions most recently given by the Servicer. Indenture
Trustee shall not be liable for losses in respect of such investments in
Eligible Investments that comply with the requirements of the Basic Documents.
SECTION 8.4 Release of Trust Estate. (a) Subject to the payment of its
fees and expenses pursuant to Section 6.7, Indenture Trustee may, and when
required by the provisions of
-44- 2002-1 Indenture
this Indenture will execute instruments to release property from the Lien of
this Indenture or any other Basic Document, or convey Indenture Trustee's
interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture or such other document. No
party relying upon an instrument executed by Indenture Trustee as provided in
this Article VIII shall be bound to ascertain Indenture Trustee's authority,
inquire into the satisfaction of any conditions precedent or see to the
application of any moneys.
(b) Indenture Trustee shall, at such time as there are no Notes
outstanding and all sums due Indenture Trustee pursuant to Section 6.7 have been
paid, release any remaining portion of the Trust Estate that secured the Notes
from the Lien of this Indenture and release to Owner Trustee or any other Person
entitled thereto any funds then on deposit in the Trust Accounts. Indenture
Trustee shall release property from the Lien of this Indenture pursuant to this
Section 8.4(b) only upon receipt of an Issuer Request accompanied by an
Officer's Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA xx.xx. 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, acknowledges that from
time to time the Indenture Trustee shall release the Lien of this Indenture on
any Receivable to be sold to Servicer (i) in accordance with Section 3.3 of the
Sale and Servicing Agreement, and (ii) in accordance with Section 4.7 of the
Sale and Servicing Agreement.
SECTION 8.5 Opinion of Counsel. Indenture Trustee shall receive at
least seven days' notice when requested by Owner Trustee to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and Indenture Trustee may also require as a condition to such action, an Opinion
of Counsel, in form and substance satisfactory to Indenture Trustee, stating the
legal effect of any such action, outlining the steps required to complete the
same, and concluding that all conditions precedent to the taking of such action
have been complied with and such action will not materially and adversely impair
the security for the Notes or the rights of the Noteholders in contravention of
the provisions of this Indenture; provided that such Opinion of Counsel shall
not be required to express an opinion as to the fair value of the Trust Estate.
Counsel rendering any such opinion may rely, without independent investigation,
on the accuracy and validity of any certificate or other instrument delivered to
Indenture Trustee in connection with any such action.
SECTION 8.6 Reserve Account. (a) On or prior to the Closing Date, the
Owner Trustee will establish or cause to be established, in the name of the
Indenture Trustee, for the benefit of the Noteholders and the Certificateholder,
an Eligible Deposit Account (the "Reserve Account"), being a designation clearly
indicating that funds on deposit therein are held for the benefit of the
Noteholders and the Certificateholder, which Eligible Deposit Account shall be
established and maintained with the Indenture Trustee or its designees.
(b) Owner Trustee, on behalf of itself and its successors and
assigns, and solely for the purpose of providing for payment of the
distributions provided for in Section 5.5 of the Sale and Servicing Agreement,
hereby grants a security interest in and pledges to Indenture Trustee and its
successors and assigns, as agent for the benefit of the Noteholders and the
-45- 2002-1 Indenture
Certificateholder, all of its right, title and interest in and to the Reserve
Account, subject, however, to the limitations set forth in this Indenture, and
all proceeds of the foregoing, including all securities, investments, general
intangibles, financial assets and investment property from time to time credited
to and any security entitlement to the Reserve Account.
(c) Owner Trustee hereby grants a security interest and pledges to
Indenture Trustee and its successors and assigns as agent for the benefit of the
Owner Trustee, the Noteholders and the Certificateholder, the Reserve Account
Deposit and all proceeds thereof; and solely for the purpose of providing for
payment of the distributions provided for in Section 5.5 of the Sale and
Servicing Agreement (all of the foregoing, subject to the limitations set forth
in this Section 8.6, the "Reserve Account Property"), to have and to hold all
the aforesaid property, rights and privileges unto Indenture Trustee, its
successors and assigns, in trust for the uses and purposes, and subject to the
terms and provisions, set forth in this Section 8.6. Indenture Trustee hereby
acknowledges such transfer and accepts the trust hereunder and shall hold and
distribute the Reserve Account Property in accordance with the terms and
provisions of this Section 8.6.
(d) Indenture Trustee shall, at the written direction of Servicer,
direct the Securities Intermediary to invest funds on deposit in the Reserve
Account in Eligible Investments selected by Servicer and confirmed in writing by
Servicer to Indenture Trustee; provided that it is understood and agreed that
none of Indenture Trustee, Securities Intermediary or Owner Trustee shall be
liable for any loss arising from such investment in Eligible Investments;
provided, that on each Payment Date all interest and investment income (net of
losses and investment expenses) on funds on deposit in the Reserve Account shall
be distributed to the Servicer. Funds on deposit in the Reserve Account shall be
invested in Eligible Investments that will mature so that all such funds will be
available at the close of business on the Business Day preceding the next
Deposit Date; provided that to the extent permitted by the Rating Agencies
following written request by Servicer, funds on deposit in the Reserve Account
may be invested in Eligible Investments that mature later than such Deposit
Date. Funds deposited in the Reserve Account on a Deposit Date upon the maturity
of any Eligible Investments are not required to be (but may be) invested
overnight.
Owner Trustee will treat the funds, Eligible Investments and other
assets in the Reserve Account as its own for federal, state and local income tax
and franchise tax purposes and will report on its tax returns all income, gain
and loss from the Reserve Account.
(e) The Securities Intermediary hereby expressly agrees with the
Indenture Trustee that: (i) all matters relating to the Reserve Account shall be
governed by the laws of the State of New York; (ii) all Eligible Investments
held by the Securities Intermediary on behalf of the Indenture Trustee in the
Reserve Account shall be treated as "financial assets" (as defined in Article 8
of the New York Uniform Commercial Code; (iii) the Securities Intermediary will
treat the Indenture Trustee as entitled to exercise the rights comprising the
investments or financial assets credited to the Reserve Account; (iv) the
financial assets credited to the Reserve Account shall not be registered in the
name of, payable to the order of, or specially indorsed to the Indenture
Trustee; and (v) the Securities Intermediary will not agree to comply with
entitlement orders originated by any Person with respect to the investments or
financial assets held in the Reserve Account other than the Indenture Trustee.
-46- 2002-1 Indenture
(f) The Reserve Account shall be under the sole custody and control
of Indenture Trustee. If, at any time, the Reserve Account ceases to be an
Eligible Deposit Account, the Owner Trustee shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish or cause to be established a new Reserve Account
as an Eligible Deposit Account and shall transfer or cause to be transferred any
cash and/or any investments that are in the existing account which is no longer
an Eligible Deposit Account to such new Reserve Account.
(g) With respect to the Reserve Account Property, Servicer, Owner
Trustee and the Indenture Trustee agree that the Reserve Account Deposit and all
other funds and Reserve Account Property shall be delivered to Indenture Trustee
or its designee for credit to the Reserve Account. In addition:
(i) any Reserve Account Property that constitutes Physical
Property shall be delivered to Indenture Trustee or its designee in
accordance with paragraph (a) of the definition of "Delivery" and
shall be held, pending maturity or disposition, solely by Indenture
Trustee;
(ii) any Reserve Account Property that is a book entry security
held through the Federal Reserve System pursuant to Federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by Indenture Trustee
or its designee, pending maturity or disposition, through continued
book entry registration of such Reserve Account Property as described
in such paragraph; and
(iii) any Reserve Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (ii) above shall be delivered to Indenture Trustee or its
designee in accordance with paragraph (c) of the definition of
"Delivery" and shall be maintained by Indenture Trustee or such
designee acting solely for Indenture Trustee or such designee, pending
maturity or disposition, through continued registration of Indenture
Trustee's (or its designee's) ownership of such security.
Effective upon the crediting of any Reserve Account Property to the Reserve
Account, the Owner Trustee shall be deemed to have represented that it has
purchased such Reserve Account Property for value, in good faith and without
notice of any adverse claim thereto.
SECTION 8.7 Pre-Funding Account.
(a) On or prior to the Closing Date, the Owner Trustee will establish
or cause to be established, in the name of the Indenture Trustee, for the
benefit of the Noteholders and the Certificateholder, an Eligible Deposit
Account (the "Pre-Funding Account"), being a designation clearly indicating that
funds on deposit therein are held for the benefit of the Noteholders and the
Certificateholder, which Eligible Deposit Account shall be established and
maintained with the Indenture Trustee or its designees.
(b) Owner Trustee, on behalf of itself and its successors and
assigns, and solely for the purpose of providing for payment of the
distributions provided for in Section 8.2(e) and
-47- 2002-1 Indenture
Section 8.7 of this Indenture and Section 5.5 of the Sale and Servicing
Agreement, hereby grants a security interest in and pledges to Indenture Trustee
and its successors and assigns, as agent for the benefit of the Noteholders and
the Certificateholder, all of its right, title and interest in and to the
Pre-Funding Account, subject, however, to the limitations set forth in this
Indenture, and all proceeds of the foregoing, including all securities,
investments, general intangibles, financial assets and investment property from
time to time credited to and any security entitlement to the Pre-Funding
Account.
(c) Owner Trustee hereby grants a security interest and pledges to
Indenture Trustee and its successors and assigns as agent for the benefit of the
Owner Trustee, the Noteholders and the Certificateholder, the Initial
Pre-Funding Account Deposit and all proceeds thereof; and solely for the purpose
of providing for payment of the distributions provided for in Section 5.5 of the
Sale and Servicing Agreement (all of the foregoing, subject to the limitations
set forth in this Section 8.7, the "Initial Pre-Funding Account Property"), to
have and to hold all the aforesaid property, rights and privileges unto
Indenture Trustee, its successors and assigns, in trust for the uses and
purposes, and subject to the terms and provisions, set forth in this Section
8.7. Indenture Trustee hereby acknowledges such transfer and accepts the trust
hereunder and shall hold and distribute the Pre-Funding Account Property in
accordance with the terms and provisions of this Section 8.7.
(d) Indenture Trustee shall, at the written direction of Servicer,
direct the Securities Intermediary to invest funds on deposit in the Pre-Funding
Account in Eligible Investments selected by Servicer and confirmed in writing by
Servicer to Indenture Trustee; provided that it is understood and agreed that
none of Indenture Trustee, Securities Intermediary or Owner Trustee shall be
liable for any loss arising from such investment in Eligible Investments. Funds
on deposit in the Pre-Funding Account shall be invested in Eligible Investments
that will mature so that all such funds will be available at the close of
business on the Business Day preceding the next Funding Date; provided that to
the extent permitted by the Rating Agencies following written request by
Servicer, funds on deposit in the Pre-Funding Account may be invested in
Eligible Investments that mature later than such Funding Date. Funds deposited
in the Pre-Funding Account on a Funding Date upon the maturity of any Eligible
Investments are not required to be (but may be) invested overnight.
Owner Trustee will treat the funds, Eligible Investments and other assets
in the Pre-Funding Account as its own for federal, state and local income tax
and franchise tax purposes and will report on its tax returns all income, gain
and loss from the Pre-Funding Account.
(e) The Securities Intermediary hereby expressly agrees with the
Indenture Trustee that: (i) all matters relating to the Pre-Funding Account
shall be governed by the laws of the State of New York; (ii) all Eligible
Investments held by the Securities Intermediary on behalf of the Indenture
Trustee in the Pre-Funding Account shall be treated as "financial assets" (as
defined in Article 8 of the New York Uniform Commercial Code; (iii) the
Securities Intermediary will treat the Indenture Trustee as entitled to exercise
the rights comprising the investments or financial assets credited to the
Pre-Funding Account; (iv) the financial assets credited to the Pre-Funding
Account shall not be registered in the name of, payable to the order of, or
specially indorsed to the Indenture Trustee; and (v) the Securities Intermediary
will not
-48- 2002-1 Indenture
agree to comply with entitlement orders originated by any Person with respect to
the investments or financial assets held in the Pre-Funding Account other than
the Indenture Trustee.
(f) The Pre-Funding Account shall be under the sole custody and control
of Indenture Trustee. If, at any time, the Pre-Funding Account ceases to be an
Eligible Deposit Account, the Owner Trustee shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish or cause to be established a new Pre-Funding
Account as an Eligible Deposit Account and shall transfer or cause to be
transferred any cash and/or any investments that are in the existing account
which is no longer an Eligible Deposit Account to such new Pre-Funding Account.
(g) With respect to the Pre-Funding Account Property, Servicer, Owner
Trustee and the Indenture Trustee agree that the Pre-Funding Account Deposit and
all other funds and Pre-Funding Account Property shall be delivered to Indenture
Trustee or its designee for credit to the Pre-Funding Account. In addition:
(i) any Pre-Funding Account Property that constitutes Physical
Property shall be delivered to Indenture Trustee or its designee in
accordance with paragraph (a) of the definition of "Delivery" and shall
be held, pending maturity or disposition, solely by Indenture Trustee;
(ii) any Pre-Funding Account Property that is a book entry
security held through the Federal Reserve System pursuant to Federal
book-entry regulations shall be delivered in accordance with paragraph
(b) of the definition of "Delivery" and shall be maintained by Indenture
Trustee or its designee, pending maturity or disposition, through
continued book entry registration of such Pre-Funding Account Property as
described in such paragraph; and
(iii) any Pre-Funding Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by clause
(ii) above shall be delivered to Indenture Trustee or its designee in
accordance with paragraph (c) of the definition of "Delivery" and shall
be maintained by Indenture Trustee or such designee acting solely for
Indenture Trustee or such designee, pending maturity or disposition,
through continued registration of Indenture Trustee's (or its designee's)
ownership of such security.
Effective upon the crediting of any Pre-Funding Account Property to the
Pre-Funding Account, the Owner Trustee shall be deemed to have represented that
it has purchased such Pre-Funding Account Property for value, in good faith and
without notice of any adverse claim thereto.
(h) The Indenture Trustee shall, upon receipt of written direction from
the Owner Trustee, withdraw funds on deposit in the Pre-Funding Account on a
Funding Date and remit such amount to M&I Bank (on behalf of the Seller) for the
acquisition, transfer and Grant of the Subsequent Receivables on the related
Funding Date. The amount of funds withdrawn from the Pre-Funding Account for
such acquisition of Subsequent Receivables on a Funding Date will be equal to of
the Subsequent Purchase Price of the Subsequent Receivables, as of the related
Subsequent Cutoff Date; provided that such Subsequent Receivables may not be
purchased
-49- 2002-1 Indenture
through the Pre-Funding Account unless the acquisition of such Subsequent
Receivables meets the requirements set forth in Section 2.16(b) hereof. Except
as expressly set forth herein and in the Sale and Servicing Agreement, the
Indenture Trustee shall have no duty to verify that the Subsequent Receivables
meet the requirements set forth in Section 2.16 hereof.
(i) To the extent that any funds remain in the Pre-Funding Account
after termination of the Pre-Funding Period, such funds (other than interest and
other investment income) will be paid on the first Payment Date occurring after
termination of the Pre-Funding Period in accordance with Section 8.2(e) hereof.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.
Without the consent of the Holders of any Notes but with prior written notice to
the Rating Agencies by Owner Trustee, as evidenced to Indenture Trustee, Owner
Trustee and Indenture Trustee, when authorized by an Owner Trustee Order, at any
time and from time to time, may enter into one or more indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as in
force at the date of the execution thereof), in form satisfactory to Indenture
Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture, or better to assure, convey
and confirm unto Indenture Trustee any property subject or required to be
subjected to the Lien of this Indenture, or to subject to the Lien of
this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to Owner Trustee, and the
assumption by any such successor of the covenants of Owner Trustee herein
and in the Notes contained;
(iii) to add to the covenants of Owner Trustee, for the benefit of
the Holders of the Notes, or to surrender any right or power herein
conferred upon Owner Trustee;
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental indenture;
provided that such action shall not materially and adversely affect the
interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as shall
be necessary to facilitate the administration of the trusts hereunder by
more than one trustee, pursuant to the requirements of Article VI;
-50- 0000-0 Xxxxxxxxx
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such other
provisions as may be expressly required by the TIA; or
(viii) (A) to add, modify or eliminate such provisions of the
Indenture as may be necessary or advisable in order to enable all or a
portion of the Trust to qualify as, and to permit an election to be made
to cause all or a portion of the Trust to be treated as, a "financial
asset securitization investment trust" under the Code, and (B) in
connection with any such election, to modify or eliminate existing
provisions set forth in this Indenture relating to the intended federal
income tax treatment of the Notes or Certificates and the Trust in the
absence of the election; it being a condition to any such amendment that
the Rating Agency Condition shall have been satisfied; and
(ix) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable (a) the transfer to Owner
Trustee of all or any portion of the Receivables to be recognized as a
sale under GAAP by Seller to Owner Trustee, (b) the Trust to avoid
becoming a member of Seller's consolidated group under GAAP or (c) M&I
Bank or any of its Affiliates to otherwise comply with or obtain more
favorable treatment under any law or regulation or any accounting rule or
principle; it being a condition to any such amendment that the Rating
Agency Condition shall have been satisfied.
Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
Owner Trustee and Indenture Trustee, when authorized by an Issuer Order,
may, also without the consent of any of the Holders of the Notes but with prior
written notice to the Rating Agencies by Owner Trustee, as evidenced to
Indenture Trustee, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Holders of the Notes under this Indenture; provided
that such action shall not adversely affect in any material respect the
interests of any Noteholder; and provided further that any supplemental
indenture entered into pursuant to this Section 9.1 shall not significantly
change the permitted activities of the Trust.
SECTION 9.2 Supplemental Indentures with Consent of Noteholders. Owner
Trustee and Indenture Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies and with the consent of the Holders of
not less than a majority of the Outstanding Amount of the Controlling Note
Class, by Act of such Holders delivered to Owner Trustee and Indenture Trustee,
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:
-51- 2002-1 Indenture
(i) change the date of payment of any installment of principal
of or interest on any Note, or reduce the principal amount thereof, the
interest rate thereon or the Redemption Price with respect thereto,
change the provision of this Indenture relating to the application of
collections on, or the proceeds of the sale of, the Trust Estate to
payment of principal of or interest on the Notes, or change any place
of payment where, or the coin or currency in which, any Note or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to
the payment of any such amount due on the Notes on or after the
respective due dates thereof (or, in the case of redemption, on or
after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes or the Controlling Note Class, the consent of the Holders of
which is required for any such supplemental indenture, or the consent
of the Holders of which is required for any waiver of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture;
(iii) modify or alter (x) the provisions of the proviso as to
the definition of the term "Outstanding" or (y) the definition of
"Controlling Note Class";
(iv) reduce the percentage of the Outstanding Amount of the
Notes or Controlling Note Class required to direct Indenture Trustee to
direct Owner Trustee to sell or liquidate the Trust Estate pursuant to
Section 5.4;
(v) modify any provision of this Section 9.2 except to
increase any percentage specified herein or to provide that certain
additional provisions of this Indenture or the Basic Documents cannot
be modified or waived without the consent of the Holder of each
Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Payment Date (including
the calculation of any of the individual components of such
calculation) or to affect the rights of the Holders of Notes to the
benefit of any provisions for the mandatory redemption of the Notes
contained herein; or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the Lien of this Indenture with respect to any part of the
Trust Estate or, except as otherwise permitted or contemplated herein
or in the Basic Documents, terminate the Lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note
of the security provided by the Lien of this Indenture.
Indenture Trustee may determine whether or not any Notes would be
affected by any supplemental indenture and any such determination shall be
conclusive upon the Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. Indenture Trustee shall not be liable for
any such determination made in good faith.
-52- 2002-1 Indenture
It shall not be necessary for any Act of Noteholders under this Section
9.2 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by Owner Trustee and Indenture Trustee of
any supplemental indenture pursuant to this Section 9.2, Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of Indenture Trustee to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, Indenture Trustee shall be entitled to receive, and subject
to Sections 6.1 and 6.2, shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects Indenture
Trustee's own rights, duties, liabilities or immunities under this Indenture or
otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of
Indenture Trustee, Owner Trustee and the Holders of the Notes shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity With Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by Indenture Trustee shall,
bear a notation furnished by Owner Trustee as to any matter provided for in such
supplemental indenture. If Owner Trustee shall so determine, new Notes so
modified as to conform, in the opinion of Owner Trustee, to any such
supplemental indenture may be prepared and executed by Owner Trustee and
authenticated and delivered by Indenture Trustee in exchange for Outstanding
Notes.
-53- 2002-1 Indenture
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. The Notes are subject to redemption in whole,
but not in part, at the direction of Servicer pursuant to Section 9.1(a) of the
Sale and Servicing Agreement, on any Payment Date on which Servicer exercises
its option to purchase the Trust Estate pursuant to said Section 9.1(a), for a
purchase price equal to the Redemption Price; provided that Owner Trustee has
available funds sufficient to pay the Redemption Price. Servicer or Owner
Trustee shall furnish the Rating Agencies notice of such redemption. If the
Notes are to be redeemed pursuant to this Section 10.1, Servicer or Owner
Trustee shall furnish notice of such election to Indenture Trustee not later
than 25 days prior to the Redemption Date and Owner Trustee shall deposit with
Indenture Trustee in the Note Distribution Account the Redemption Price of the
Notes to be redeemed whereupon all such Notes shall be due and payable on the
Redemption Date upon the furnishing of a notice complying with Section 10.2 to
each Holder of the Notes.
SECTION 10.2 Form of Redemption Notice. Notice of redemption under
Section 10.1 shall be given by Indenture Trustee by facsimile or by first-class
mail, postage prepaid, transmitted or mailed prior to the applicable Redemption
Date to each Holder of Notes, as of the close of business on the Record Date
preceding the applicable Redemption Date, at such Holder's address appearing in
the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such Redemption
Date is not applicable and that payments shall be made only upon
presentation and surrender of such Notes and the place where such Notes
are to be surrendered for payment of the Redemption Price (which shall
be the office or agency of Owner Trustee to be maintained as provided
in Section 3.2); and
(iv) that interest on the Notes shall cease to accrue on the
Redemption Date.
Notice of redemption of the Notes shall be given by Indenture Trustee
in the name and at the expense of Owner Trustee. Failure to give notice of
redemption, or any defect therein, to any Holder of any Note shall not impair or
affect the validity of the redemption of such Note.
SECTION 10.3 Notes Payable on Redemption Date. The Notes to be redeemed
shall, following notice of redemption as required by Section 10.2 (in the case
of redemption pursuant to Section 10.1), on the Redemption Date become due and
payable at the Redemption Price and (unless Owner Trustee 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.
-54- 2002-1 Indenture
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc. (a) Upon any
application or request by Owner Trustee to Indenture Trustee to take any action
under any provision of this Indenture, Owner Trustee shall furnish to Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with, (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and (iii)
(if required by the TIA) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of this Section 11.1,
except that, in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with Indenture Trustee that is to be made the basis for the release
of any property or securities subject to the Lien of this Indenture, Owner
Trustee shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to Owner
Trustee of the Collateral or other property or securities to be so deposited.
(ii) Whenever Owner Trustee is required to furnish to Indenture
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (i), Owner
Trustee shall also deliver to Indenture Trustee an Independent
Certificate as to the same matters, if the fair value to Owner Trustee
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 Owner Trustee, as set forth in the
certificates delivered pursuant to clause (i) and this clause (ii),
-55- 2002-1 Indenture
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 Owner Trustee as set forth in
the related Officer's Certificate is less than $25,000 or less than
one percent of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Purchased
Receivables or Defaulted Receivables, whenever any property or
securities are to be released from the Lien of this Indenture, Owner
Trustee shall also furnish to Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 90 days of such release)
of the property or securities proposed to be released and stating that
in the opinion of such person the proposed release will not impair the
security under this Indenture in contravention of the provisions
hereof.
(iv) Whenever Owner Trustee is required to furnish to Indenture
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (iii), Owner
Trustee shall also furnish to Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property
or securities and of all other property other than Purchased
Receivables and Defaulted Receivables, or securities released from the
Lien of this Indenture since the commencement of the then current
calendar year, as set forth in the certificates required by clause
(iii) and this clause (iv), equals 10% or more of the Outstanding
Amount of the Notes, but such certificate need not be furnished in the
case of any release of property or securities if the fair value
thereof as set forth in the related Officer's Certificate is less than
$25,000 or less than one percent of the then Outstanding Amount of the
Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section 11.b, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of Receivables as and to the extent permitted or required by
the Basic Documents and (B) make cash payments out of the Trust
Accounts as and to the extent permitted or required by the Basic
Documents.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee. 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 Owner Trustee
may be based, insofar as it relates to legal matters, upon an opinion of
counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the opinion with respect to the matters upon which his or her
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of Servicer, Seller, Administrator or Owner Trustee, stating
that the information with respect to such factual matters is in the possession
of Servicer, Seller, Administrator or Owner Trustee, unless such counsel
-56- 0000-0 Xxxxxxxxx
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 Indenture Trustee, it is provided that Owner Trustee
shall deliver any document as a condition of the granting of such application,
or as evidence of Owner Trustee'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 Owner Trustee to have such application
granted or to the sufficiency of such certificate or report. The foregoing shall
not, however, be construed to affect Indenture Trustee's right to rely upon the
truth and accuracy of any statement or opinion contained in any such document as
provided in Article VI.
SECTION 11.3 Acts of Noteholders. (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 Indenture Trustee, and, where it is
hereby expressly required, to Owner Trustee. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of Indenture Trustee and Owner Trustee, if made in the
manner provided in this Section 11.3.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any customary manner of Indenture
Trustee.
(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
Indenture Trustee or Owner Trustee in reliance thereon, whether or not notation
of such action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Owner Trustee and
Rating Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to or filed with:
(a) Indenture Trustee by any Noteholder, Administrator or Owner
Trustee shall be sufficient for every purpose hereunder if personally delivered,
delivered by overnight courier or
-57- 2002-1 Indenture
mailed certified mail, return receipt requested and shall be deemed to have been
duly given upon receipt to Indenture Trustee at its Corporate Trust Office, or
(b) Owner Trustee by Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested and shall
be deemed to have been duly given upon receipt to Owner Trustee addressed to:
M&I Auto Loan Trust 2002-1, in care of The Bank of New York (Delaware), Xxxxx
Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, with a copy to Administrator at
M&I Xxxxxxxx & Ilsley Bank, 000 Xxxxx Xxxxx Xxxxxx XX0, Xxxxxxxxx, Xxxxxxxxx
00000, Attention: Xxxxxxx X. Xxxx, or at any other address previously furnished
in writing to Indenture Trustee by Owner Trustee or Administrator. Owner Trustee
shall promptly transmit any notice received by it from the Noteholders to
Indenture Trustee.
Notices required to be given to the Rating Agencies by Owner Trustee,
Indenture Trustee or Owner Trustee shall be in writing, personally delivered,
delivered by overnight courier or mailed certified mail, return receipt
requested to (i) in the case of Moody's, at the following address: Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Asset Backed Securities Group and (ii) in the case of S&P, at the following
address: Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention of Asset Backed Surveillance Department; or as to each of
the foregoing, at such other address as shall be designated by written notice to
the other parties.
Notices required to be given to Indenture Trustee shall be in writing,
personally delivered by overnight courier or mailed certified mail, return
receipt requested to: Bank One, National Association, 1 Bank One Plaza, Mail
Code IL1-0481, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Global Corporate Trust
Services Division.
SECTION 11.5 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 his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with Indenture Trustee
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
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
-58- 2002-1 Indenture
manner of giving such notice as shall be satisfactory to Owner 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 11.6 Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, Owner
Trustee may enter into any agreement with any Holder of a Note providing for a
method of payment, or notice by Indenture Trustee or any Paying Agent to such
Holder, that is different from the methods provided for in this Indenture for
such payments or notices, provided that such methods are reasonable and
consented to by Indenture Trustee. Owner Trustee will furnish to the trustee a
copy of each such agreement and Indenture Trustee will cause payments to be made
and notices to be given in accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by Owner Trustee shall bind its successors and
assigns, whether so expressed or not. All agreements of Indenture Trustee in
this Indenture shall bind its successors.
SECTION 11.10 Separability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, and any other party
secured hereunder, and any other person with an ownership interest in any part
of the Trust Estate, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 11.12 Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding
-59- 2002-1 Indenture
Business Day with the same force and effect as if made on the date on which
nominally due, and no interest shall accrue for the period from and after any
such nominal date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts. This Indenture may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by Owner Trustee and at its expense accompanied by an Opinion of
Counsel delivered to the Indenture Trustee (which may be counsel to Owner
Trustee or any other counsel reasonably acceptable to Indenture Trustee) to the
effect that such recording is necessary either for the protection of the
Noteholders or any other person secured hereunder or for the enforcement of any
right or remedy granted to Indenture Trustee under this Indenture.
SECTION 11.16 Trust Obligation. (a) No recourse may be taken, directly or
indirectly, with respect to the obligations of Owner Trustee or Indenture
Trustee on the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) Seller, (ii)
Indenture Trustee or Owner Trustee in its individual capacity, (iii) any owner
of a beneficial interest in Owner Trustee, (iv) any partner, owner, member,
beneficiary, agent, officer, director, employee or agent of Seller, Indenture
Trustee or Owner Trustee in its individual capacity as such, (v) or any holder
of a beneficial interest in Seller, Owner Trustee or Indenture Trustee or of any
successor or assign of Seller, Indenture Trustee or Owner Trustee in its
individual capacity as such, except as any such Person may have expressly agreed
(it being understood that Indenture Trustee and Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or obligations of Owner Trustee
hereunder, Owner Trustee shall be subject to, and entitled to the benefits of,
the terms and provisions of Article VI, VII and VIII of the Trust Agreement.
(b) In furtherance of and not in derogation of the foregoing, to the
extent Seller enters into other securitization transactions, each Noteholder, by
accepting a Note, acknowledges and agrees that it shall have no right, title or
interest in or to any assets or interests therein of Seller (other than the
Trust Property and Reserve Account relating to this transaction) conveyed or
purported to be conveyed by Seller to another securitization trust or other
Person or Persons in connection therewith (whether by way of a sale, capital
contribution or by virtue of the granting of a Lien) ("Other Assets"). To the
extent that, notwithstanding the agreements and provisions contained in the
preceding sentences of this Section 11.6, a Noteholder either (i) asserts an
interest or claim to, or benefit from, Other Assets, whether asserted against or
through Seller or
-60- 2002-1 Indenture
any other Person owned by Seller, or (ii) is deemed to have any such interest,
claim or benefit in or from Other Assets, whether by operation of law, legal
process, pursuant to applicable provisions of insolvency laws or otherwise
(including by virtue of Section 1111(b) of the Federal Bankruptcy Code or any
successor provision having similar effect under the Bankruptcy Code), and
whether deemed asserted against or through Seller or any other Person owned by
Seller, then each Noteholder, by accepting a Note, further acknowledges and
agrees that any such interest, claim or benefit in or from Other Assets is and
shall be expressly subordinated to the indefeasible payment in full of all
obligations and liabilities of Seller which, under the terms of the relevant
documents relating to the securitization of such Other Assets, are entitled to
be paid from, entitled to the benefits of, or otherwise secured by such Other
Assets (whether or not any such entitlement or security interest is legally
perfected or otherwise entitled to priority of distribution or application under
applicable law, including insolvency laws, and whether asserted against Seller
or any other Person owned by Seller), including the payment of post-petition
interest on such other obligations and liabilities. This subordination agreement
shall be deemed a subordination agreement within the meaning of Section 510(a)
of the Bankruptcy Code. Each Noteholder, by acceptance of a Note, further
acknowledges and agrees that no adequate remedy at law exists for a breach of
this Section 11.16(b) and the terms of this Section 11.16(b) may be enforced by
an action for specific performance. The provisions of this Section 11.16(b)
shall be for the third party benefit of those entitled to rely thereon and shall
survive the termination of this Agreement.
SECTION 11.17 No Petition. Indenture Trustee and M&I Bank, by entering
into this Indenture, and each Noteholder, by accepting a Note, hereby covenant
and agree that they will not at any time institute against Seller or the Trust,
or join in any institution against Seller or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, this Indenture or any
of the Basic Documents.
SECTION 11.18 Inspection. Owner Trustee agrees that, on reasonable prior
notice, it will permit any representative of Indenture Trustee, during Owner
Trustee's normal business hours, to examine all the books of account, records,
reports, and other papers of Owner Trustee, to make copies and extracts
therefrom, to cause such books to be audited by Independent certified public
accountants, and to discuss Owner Trustee's affairs, finances and accounts with
Owner Trustee's officers, employees, and independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. Indenture Trustee shall and shall cause its representatives to hold
in confidence all such information except to the extent disclosure may be
required by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.
SECTION 11.19 Confidential Information. Any Holder, by its acceptance of
a Note, shall be deemed to have agreed to keep any information obtained by it
pursuant to Section 4.12 of the Sale and Servicing Agreement confidential and
not to use such information for any other purpose, except as required by
applicable law.
-61- 2002-1 Indenture
SECTION 11.20 Limitation of Liability. It is expressly understood and
agreed by and between the parties hereto (i) that this Agreement is executed and
delivered by The Bank of New York (Delaware), not in its individual capacity but
solely as Owner Trustee under the Trust Agreement dated as of October 10, 2002
with M&I Dealer Auto Securitization, LLC and M&I Xxxxxxxx & Xxxxxx Bank (the
"Trust Agreement") in the exercise of the power and authority conferred and
vested in it as such Owner Trustee, (ii) each of the representations,
undertakings and agreements made herein by the Owner Trustee are not personal
representations, undertakings and agreements of The Bank of New York (Delaware),
but are binding only on the trust estate created pursuant to the Trust
Agreement, (iii) nothing contained herein shall be construed as creating any
liability on The Bank of New York (Delaware), individually or personally, to
perform any covenant of the Owner Trustee 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 any such party, and (iv) under
no circumstances shall The Bank of New York (Delaware) be personally liable for
the payment of any indebtedness or expense of the Owner Trustee or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Owner Trustee under this Agreement.
-62- 2002-1 Indenture
IN WITNESS WHEREOF, M&I Bank, Owner Trustee and Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above written.
THE BANK OF NEW YORK (DELAWARE), not in its
individual capacity but solely as Owner
Trustee of M&I Auto Loan Trust 2002-1
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
S-1 2002-1 Indenture
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
S-2 2002-1 Indenture
M&I XXXXXXXX & ILSLEY BANK, as Servicer
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
S-3 2002-1 Indenture
EXHIBIT A-1
[Form of Class A-1 Note]
REGISTERED $133,000,000
No. R-1 CUSIP NO.: 00000XXX0
ISIN NO.: US55255PAF71
Common Code: 015586281
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
M&I AUTO LOAN TRUST 2002-1
1.77% CLASS A-1 ASSET BACKED NOTES
M&I Auto Loan Trust 2002-1, a trust existing under the laws of the State of
Delaware (herein referred to as the "Trust"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of ONE
HUNDRED THIRTY-THREE MILLION DOLLARS ($133,000,000) payable on each Payment Date
in an amount equal to the aggregate amount, if any, payable to Noteholders of
Class A-1 Notes on such Payment Date from the Principal Distribution Account in
respect of principal on the Class A-1 Notes pursuant to Section 3.1 of the
Indenture dated as of October 10, 2002 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), among Bank
One, National Association, a national banking association, as Indenture Trustee
(in such capacity the "Indenture Trustee"), The Bank of New York (Delaware), a
Delaware banking corporation, not in its individual capacity but solely as owner
trustee of the Trust (the "Owner Trustee"), and M&I Xxxxxxxx & Xxxxxx Bank, as
the Servicer ("M&I Bank"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the October 20, 2003, Payment
Date (the "Class A-1 Final Scheduled Payment Date"). Capitalized terms used but
not defined herein are defined in Appendix X to the Sale and Servicing
Agreement, dated as of October 10, 2002, among M&I Bank, M&I Dealer Auto
Securitization, LLC, as the seller (the "Seller"), the Owner Trustee and the
Indenture Trustee (the "Sale and Servicing Agreement"), which also contains
rules as to construction that shall be applicable herein.
The Owner Trustee shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the previous Payment Date on which interest has been
paid (or, in the case of the initial Payment Date, from the Closing Date) to but
excluding such Payment Date. Interest will be computed on the basis of actual
days elapsed and a 360-day year. Such principal of and interest on this Note
shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Owner
Trustee with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: October 10, 0000
XXX XXXX XX XXX XXXX (DELAWARE), not in its
individual capacity but solely as Owner
Trustee of M&I Auto Loan Trust 2002-1
By:___________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Notes designated above and referred to in the
within-mentioned Indenture.
Date: October 10, 2002
BANK ONE, NATIONAL ASSOCIATION, not in
its individual capacity but solely as Authenticating
Agent
By: _______________________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Trust,
designated as its 1.77% Class A-1 Asset Backed Notes (the "Class A-1 Notes")
which, together with the Trust's 1.95% Class A-2 Asset Backed Notes (the "Class
A-2 Notes"), 2.49% Class A-3 Asset Backed Notes (the "Class A-3 Notes"), 3.04%
Class A-4 Asset Backed Notes (the "Class A-4 Notes" and, together with the Class
A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the "Class A Notes") and
3.52% Class B Asset Backed Notes (the "Class B Notes" and, together with the
Class A Notes and the Class B Notes, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Trust, the Indenture Trustee and the Noteholders. The Notes
are subject to all terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-1 Notes are senior in right of payment to the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes and the Class B Notes, each as and to the extent
provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth day of
each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 20, 2002. All principal payments on the Class
A-1 Notes shall be made pro rata to the Class A-1 Noteholders entitled thereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the Class A-1 Final Scheduled Payment Date.
Notwithstanding the foregoing, if an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class of Notes may declare all the Notes to be immediately due
and payable, by a notice in writing to Owner Trustee (and to the Indenture
Trustee if given by Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class A-1 Notes will be made in accordance with the
provisions of the Indenture.
Payments of interest on this Note on each Payment Date, together with the
installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture and, in such event, all
principal payments on each class of Notes shall be made pro rata to the
Noteholders of such class entitled thereto. Indenture Trustee shall notify the
Person in whose name a Note is registered at the close of business on the Record
Date preceding the Payment Date on which Indenture Trustee expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such final Payment
Date and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2 of the Indenture.
The Owner Trustee shall pay interest on overdue installments of interest at
the Class A-1 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and the Class B Notes may
be redeemed, in whole but not in part, in the manner and to the extent described
in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Owner Trustee pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Indenture Trustee or the Owner Trustee, each in its individual
capacity, (ii) any owner of a beneficial interest in the Trust, (iii) any
partner, owner, beneficiary, agent, officer, director or employee of the
Indenture Trustee or the Owner Trustee, each in its individual capacity, or (iv)
any holder of a beneficial interest in the Trust or the Indenture Trustee or of
any successor or assign of the Indenture Trustee or the Owner Trustee, each in
its individual capacity, except as any such Person may have expressly agreed and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity. Each Noteholder or Note Owner,
by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Trust for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Estate and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller to another securitization trust
or other Person or Persons in connection therewith (whether by way of a sale,
capital contribution or by virtue of the granting of a lien) ("Other Assets").
To the extent that, notwithstanding the agreements and provisions contained in
the preceding sentences of this paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, or (ii) is deemed
to have any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of insolvency
laws or otherwise (including by virtue of Section 1111(b) of the Federal
Bankruptcy Code or any successor provision having similar effect under the
Bankruptcy Code), and whether deemed asserted against or through Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, further acknowledges and agrees that any such interest, claim or benefit
in or from Other Assets is and shall be expressly subordinated to the
indefeasible payment in full of all obligations and liabilities of Seller which,
under the terms of the relevant documents relating to the securitization of such
Other Assets, are entitled to be paid from, entitled to the benefits of, or
otherwise secured by such Other Assets (whether or not any such entitlement or
security interest is legally perfected or otherwise entitled to priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against Seller or any other Person owned by Seller), including
the payment of post-petition interest on such other obligations and liabilities.
This subordination agreement shall be deemed a subordination agreement within
the meaning of Section 510(a) of the Bankruptcy Code. Each Noteholder or Note
Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, further acknowledges and agrees that no adequate remedy at
law exists for a breach of this paragraph and the terms of this paragraph may be
enforced by an action for specific performance. The provisions of this paragraph
shall be for the third party benefit of those entitled to rely thereon and shall
survive the termination of this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller or the Trust, or join in any institution
against the Seller or the Trust of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, the Indenture or the other Basic Documents.
The Owner Trustee has entered into the Indenture and this Note is issued
with the intention that, for federal, state and local income, and franchise tax
purposes, the Notes will qualify as indebtedness secured by the Trust Estate.
Each Noteholder, by its acceptance of a Note (and each Note Owner by its
acceptance of a beneficial interest in a Note), will be deemed to agree to treat
the Notes for federal, state and local income, single business and franchise tax
purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Owner Trustee, the Indenture Trustee or any such agent
shall be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Owner Trustee and the Indenture Trustee to
enter into one or more supplemental indentures without the consent of the
Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of the Outstanding Amount or of the Controlling Note Class, on
behalf of all Noteholders, to waive compliance by the Owner Trustee with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder of this Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Owner Trustee", as used in this Note, includes any successor to
the Owner Trustee under the Indenture.
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Owner Trustee, 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.
Each Noteholder or Note Owner expressly understands and agrees (i) that
this Note is executed and delivered by The Bank of New York (Delaware), not in
its individual capacity but solely as Owner Trustee under the Trust Agreement
dated as of October 10, 2002 with M&I Dealer Auto Securitization, LLC and M&I
Xxxxxxxx & Ilsley Bank (the "Trust Agreement") in the exercise of the power and
authority conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Owner Trustee
are not personal representations, undertakings and agreements of The Bank of New
York (Delaware), but are binding only on the trust estate created pursuant to
the Trust Agreement, (iii) nothing contained herein shall be construed as
creating any liability on The Bank of New York (Delaware), individually or
personally, to perform any covenant of the Owner Trustee either expressed or
implied contained herein, all such liability, if any, being expressly waived by
the Noteholder or Note Owner and by any person claiming by, through or under any
such Noteholder or Note Owner, and (iv) under no circumstances shall The Bank of
New York (Delaware) be personally liable for the payment of any indebtedness or
expense of the Owner Trustee or be liable for the payment of any indebtedness or
expense of the Owner Trustee or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the Owner
Trustee under this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_____________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200_
By: */____________________________
Signature Guaranteed:
*/____________________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
A-1 2002-1 Indenture
EXHIBIT A-2
[Form of Class A-2 Note]
REGISTERED $122,000,000
No. R-1 CUSIP NO.: 00000XXX0
ISIN NO.: US55255PAG54
Common Code: 015586290
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTOR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
M&I AUTO LOAN TRUST 2002-1
1.95% CLASS A-2 ASSET BACKED NOTES
M&I Auto Loan Trust 2002-1, a trust existing under the laws of the
State of Delaware (herein referred to as the "Trust"), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum
of ONE HUNDRED TWENTY-TWO MILLION DOLLARS ($122,000,000) payable on each Payment
Date in an amount equal to the aggregate amount, if any, payable to Noteholders
of Class A-2 Notes on such Payment Date from the Principal Distribution Account
in respect of principal on the Class A-2 Notes pursuant to Section 3.1 of the
Indenture dated as of October 10, 2002 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), among The
Bank of New York (Delaware), not in its individual capacity but solely as owner
trustee of the Trust (the "Owner Trustee"), Bank One, National Association, a
national banking association, as Indenture Trustee (in such capacity the
"Indenture Trustee") and M&I Xxxxxxxx & Xxxxxx Bank, as Servicer ("M&I Bank");
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on the July 20, 2005, Payment Date (the "Class A-2 Final
Scheduled Payment Date"). Capitalized terms used but not defined herein are
defined in Appendix X to the Sale and Servicing Agreement, dated as of October
10, 2002, among M&I Bank, M&I Dealer Auto Securitization, LLC, as the seller
(the "Seller"), the Owner Trustee and the Indenture Trustee (the "Sale and
Servicing Agreement"), which also contains rules as to construction that shall
be applicable herein.
The Owner Trustee shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Distribution Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue for
each Distribution Date from and including the twentieth day of the calendar
month immediately preceding such Payment Date (or, in the case of the initial
Payment Date, from the Closing Date) to but excluding the twentieth day of the
following calendar month. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. Such principal of and interest on this Note shall
be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Owner
Trustee with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed
pursuant to Section 2.13 of the Indenture by the Authenticating Agent whose name
appears below by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: October 10, 0000
XXX XXXX XX XXX XXXX (DELAWARE), not
in its individual capacity but solely as Owner
Trustee of M&I Auto Loan Trust 2002-1
By: _________________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Notes designated above and referred to in
the within-mentioned Indenture.
Date: October 10, 2002
BANK ONE, NATIONAL ASSOCIATION, not in
its individual capacity but solely as Authenticating
Agent
By:_________________________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Trust,
designated as its 1.95% Class A-2 Asset Backed Notes (the "Class A-2 Notes")
which, together with the Trust's 1.77% Class A-1 Asset Backed Notes (the "Class
A-1 Notes"), 2.79% Class A-3 Asset Backed Notes (the "Class A-3 Notes") and
3.04% Class A-4 Asset Backed Notes (the "Class A-4 Notes" and, together with the
Class A-1 Notes, the Class A-3 Notes and the Class A-4 Notes, the "Class A
Notes") and 3.52% Class B Asset Backed Notes (the "Class B Notes" and, together
with the Class A Notes, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Trust, the
Indenture Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class A-2 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-2 Notes are subordinated in right of payment to the Class A-1 Notes and are
senior in right of payment to the Class A-3 Notes, the Class A-4 Notes and the
Class B Notes each as and to the extent provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the twentieth
day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 20, 2002. All principal payments on
the Class A-2 Notes shall be made pro rata to the Class A-2 Noteholders entitled
thereto.
As described on the face hereof, the entire unpaid principal amount of
this Note shall be due and payable on the Class A-2 Final Scheduled Payment
Date. Notwithstanding the foregoing, if an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class may declare all the Notes to be immediately due and
payable, by a notice in writing to the Owner Trustee (and to the Indenture
Trustee if given by Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class A-2 Notes will be made in accordance with the
provisions of the Indenture.
Payments of interest on this Note on each Payment Date, together with
the installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture and, in such event, all
principal payments on each class of Notes shall be made pro rata to the
Noteholders of such class entitled thereto. Indenture Trustee shall notify the
Person in whose name a Note is registered at the close of business on the Record
Date preceding the Payment Date on which Indenture Trustee expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such final Payment
Date and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2 of the Indenture.
The Owner Trustee shall pay interest on overdue installments of
interest at the Class A-2 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and the Class B Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Owner Trustee pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in its
individual capacity, (ii) any owner of a beneficial interest in the Trust, (iii)
any partner, owner, beneficiary, agent, officer, director or employee of the
Indenture Trustee or the Owner Trustee, each in its individual capacity, or (iv)
any holder of a beneficial interest in the Trust or the Indenture Trustee or of
any successor or assign of the Indenture Trustee or the Owner Trustee, each in
its individual capacity, except as any such Person may have expressly agreed and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity. Each Noteholder or Note Owner,
by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Trust for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to
the extent Seller enters into other securitization transactions, each Noteholder
or Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Estate and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller to another securitization trust
or other Person or Persons in connection therewith (whether by way of a sale,
capital contribution or by virtue of the granting of a lien) ("Other Assets").
To the extent that, notwithstanding the agreements and provisions contained in
the preceding sentences of this paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, or (ii) is deemed
to have any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of insolvency
laws or otherwise (including by virtue of Section 1111(b) of the Federal
Bankruptcy Code or any successor provision having similar effect under the
Bankruptcy Code), and whether deemed asserted against or through Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, further acknowledges and agrees that any such interest, claim or benefit
in or from Other Assets is and shall be expressly subordinated to the
indefeasible payment in full of all obligations and liabilities of Seller which,
under the terms of the relevant documents relating to the securitization of such
Other Assets, are entitled to be paid from, entitled to the benefits of, or
otherwise secured by such Other Assets (whether or not any such entitlement or
security interest is legally perfected or otherwise entitled to priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against Seller or any other Person owned by Seller), including
the payment of post-petition interest on such other obligations and liabilities.
This subordination agreement shall be deemed a subordination agreement within
the meaning of Section 510(a) of the Bankruptcy Code. each Noteholder or Note
Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, further acknowledges and agrees that no adequate remedy at
law exists for a breach of this paragraph and the terms of this paragraph may be
enforced by an action for specific performance. The provisions of this paragraph
shall be for the third party benefit of those entitled to rely thereon and shall
survive the termination of this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Noteholder or Note Owner will
not at any time institute against the Seller or the Trust, or join in any
institution against the Seller or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Owner Trustee has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness secured by the
Trust Estate. Each Noteholder, by its acceptance of a Note (and each Note Owner
by its acceptance of a beneficial interest in a Note), will be deemed to agree
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note,
the Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Owner Trustee, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of
all Noteholders adversely affected) the Owner Trustee and the Indenture Trustee
to enter into one or more supplemental indentures without the consent of the
Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of the Outstanding Amount or of the Controlling Note Class, on
behalf of all Noteholders, to waive compliance by the Owner Trustee with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder of this Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Owner Trustee", as used in this Note, includes any successor
to the Owner Trustee under the Indenture.
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Owner Trustee,
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.
Each Noteholder or Note Owner expressly understands and agrees (i) that
this Note is executed and delivered by The Bank of New York (Delaware), not in
its individual capacity but solely as Owner Trustee under the Trust Agreement
dated as of October 10, 2002 with M&I Dealer Auto Securitization, LLC and M&I
Xxxxxxxx & Ilsley Bank (the "Trust Agreement") in the exercise of the power and
authority conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Owner Trustee
are not personal representations, undertakings and agreements of The Bank of New
York (Delaware), but are binding only on the trust estate created pursuant to
the Trust Agreement, (iii) nothing contained herein shall be construed as
creating any liability on The Bank of New York (Delaware), individually or
personally, to perform any covenant of the Owner Trustee either expressed or
implied contained herein, all such liability, if any, being expressly waived by
the Noteholder or Note Owner and by any person claiming by, through or under any
such Noteholder or Note Owner, and (iv) under no circumstances shall The Bank of
New York (Delaware) be personally liable for the payment of any indebtedness or
expense of the Owner Trustee or be liable for the payment of any indebtedness or
expense of the Owner Trustee or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the Owner
Trustee under this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200_
By: */____________________________
Signature Guaranteed:
*/____________________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
A-2 2002-1 Indenture
EXHIBIT A-3
[Form of Class A-3 Note]
REGISTERED $190,000,000
No. R-1 CUSIP NO.: 00000XXX0
ISIN NO.: US55255PAH38
Common Code: 015586320
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
M&I AUTO LOAN TRUST 2002-1
2.49% CLASS A-3 ASSET BACKED NOTES
M&I Auto Loan Trust 2002-1, a trust existing under the laws of the State of
Delaware (herein referred to as the "Trust"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of ONE
HUNDRED NINETY MILLION DOLLARS ($190,000,000) payable on each Payment Date in an
amount equal to the aggregate amount, if any, payable to Noteholders of Class
A-3 Notes on such Payment Date from the Principal Distribution Account in
respect of principal on the Class A-3 Notes pursuant to Section 3.1 of the
Indenture dated as of October 10, 2002 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), among The
Bank of New York (Delaware), not in its individual capacity but solely as owner
trustee of the Trust (the "Owner Trustee"), Bank One, National Association, a
national banking association, as Indenture Trustee (in such capacity the
"Indenture Trustee") and M&I Xxxxxxxx & Xxxxxx Bank, as Servicer ("M&I Bank");
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on the October 22, 2007, Payment Date (the "Class A-3 Final
Scheduled Payment Date"). Capitalized terms used but not defined herein are
defined in Appendix X to the Sale and Servicing Agreement, dated as of October
10, 2002, among M&I Bank, M&I Dealer Auto Securitization, LLC, as the seller
(the "Seller"), the Owner Trustee and the Indenture Trustee (the "Sale and
Servicing Agreement"), which also contains rules as to construction that shall
be applicable herein.
The Owner Trustee shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the twentieth day of the calendar month immediately
preceding such Payment Date (or, in the case of the initial Payment Date, from
the Closing Date) to but excluding the twentieth day of the following calendar
month. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Owner
Trustee with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: October 10, 0000
XXX XXXX XX XXX XXXX (DELAWARE), not in its
individual capacity but solely as Owner
Trustee of M&I Auto Loan Trust 2002-1
By: _______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Notes designated above and referred to in the
within-mentioned Indenture.
Date: October 10, 2002
BANK ONE, NATIONAL ASSOCIATION, not in
its individual capacity but solely as
Authenticating Agent
By: __________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Trust,
designated as its 2.49% Class A-3 Asset Backed Notes (the "Class A-3 Notes")
which, together with the Trust's 1.77% Class A-1 Asset Backed Notes (the "Class
A-1 Notes"), 1.95% Class A-2 Asset Backed Notes (the "Class A-2 Notes"), 3.04%
Class A-4 Asset Backed Notes (the "Class A-4 Notes" and, together with the Class
A-1 Notes, the Class A-2 Notes and the Class A-4 Notes, the "Class A Notes") and
3.52% Class B Asset Backed Notes (the "Class B Notes" and, together with the
Class A Notes, the "Notes"), are issued under the Indenture, to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Owner Trustee, the
Indenture Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class A-3 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-3 Notes are subordinated in right of payment to the Class A-1 Notes and the
Class A-2 Notes and are senior in right of payment to the Class A-4 Notes and
the Class B Notes, each as and to the extent provided in the Indenture.
Principal of the Class A-3 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth day of
each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 20, 2002. All principal payments on the Class
A-3 Notes shall be made pro rata to the Class A-3 Noteholders entitled hereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the Class A-3 Final Scheduled Payment Date.
Notwithstanding the foregoing, if an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class may declare all the Notes to be immediately due and
payable, by a notice in writing to the Owner Trustee (and to the Indenture
Trustee if given by Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class A-3 Notes will be made in accordance with the
provisions of the Indenture.
Payments of interest on this Note on each Payment Date, together with the
installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture and, in such event, all
principal payments on each class of Notes shall be made pro rata to the
Noteholders of such class entitled thereto. Indenture Trustee shall notify the
Person in whose name a Note is registered at the close of business on the Record
Date preceding the Payment Date on which Indenture Trustee expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such final Payment
Date and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2 of the Indenture.
The Owner Trustee shall pay interest on overdue installments of interest at
the Class A-3 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and the Class B Notes may
be redeemed, in whole but not in part, in the manner and to the extent described
in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Owner Trustee pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Indenture Trustee or the Owner Trustee, each in its individual
capacity, (ii) any owner of a beneficial interest in the Trust, (iii) any
partner, owner, beneficiary, agent, officer, director or employee of the
Indenture Trustee or the Owner Trustee, each in its individual capacity, or (iv)
any holder of a beneficial interest in the Trust or the Indenture Trustee or of
any successor or assign of the Indenture Trustee or the Owner Trustee, each in
its individual capacity, except as any such Person may have expressly agreed and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity. Each Noteholder or Note Owner,
by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Trust for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Estate and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller to another securitization trust
or other Person or Persons in connection therewith (whether by way of a sale,
capital contribution or by virtue of the granting of a lien) ("Other Assets").
To the extent that, notwithstanding the agreements and provisions contained in
the preceding sentences of this paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, or (ii) is deemed
to have any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of insolvency
laws or otherwise (including by virtue of Section 1111(b) of the Federal
Bankruptcy Code or any successor provision having similar effect under the
Bankruptcy Code), and whether deemed asserted against or through Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, further acknowledges and agrees that any such interest, claim or benefit
in or from Other Assets is and shall be expressly subordinated to the
indefeasible payment in full of all obligations and liabilities of Seller which,
under the terms of the relevant documents relating to the securitization of such
Other Assets, are entitled to be paid from, entitled to the benefits of, or
otherwise secured by such Other Assets (whether or not any such entitlement or
security interest is legally perfected or otherwise entitled to priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against Seller or any other Person owned by Seller), including
the payment of post-petition interest on such other obligations and liabilities.
This subordination agreement shall be deemed a subordination agreement within
the meaning of Section 510(a) of the Bankruptcy Code. each Noteholder or Note
Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, further acknowledges and agrees that no adequate remedy at
law exists for a breach of this paragraph and the terms of this paragraph may be
enforced by an action for specific performance. The provisions of this paragraph
shall be for the third party benefit of those entitled to rely thereon and shall
survive the termination of this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller or the Trust, or join in any institution
against the Seller or the Trust of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, the Indenture or the other Basic Documents.
The Owner Trustee has entered into the Indenture and this Note is issued
with the intention that, for federal, state and local income, and franchise tax
purposes, the Notes will qualify as indebtedness secured by the Trust Estate.
Each Noteholder, by its acceptance of a Note (and each Note Owner by its
acceptance of a beneficial interest in a Note), will be deemed to agree to treat
the Notes for federal, state and local income, single business and franchise tax
purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Owner Trustee, the Indenture Trustee or any such agent
shall be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Owner Trustee and the Indenture Trustee to
enter into one or more Supplemental indentures without the consent of the
Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of the Outstanding Amount or of the Controlling Note Class, on
behalf of all Noteholders, to waive compliance by the Owner Trustee with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder of this Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Owner Trustee", as used in this Note, includes any successor to
the Owner Trustee under the Indenture.
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Owner Trustee, 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.
Each Noteholder or Note Owner expressly understands and agrees (i) that
this Note is executed and delivered by The Bank of New York (Delaware), not in
its individual capacity but solely as Owner Trustee under the Trust Agreement
dated as of October 10, 2002 with M&I Dealer Auto Securitization, LLC and M&I
Xxxxxxxx & Xxxxxx Bank (the "Trust Agreement") in the exercise of the power and
authority conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Owner Trustee
are not personal representations, undertakings and agreements of The Bank of New
York (Delaware), but are binding only on the trust estate created pursuant to
the Trust Agreement, (iii) nothing contained herein shall be construed as
creating any liability on The Bank of New York (Delaware), individually or
personally, to perform any covenant of the Owner Trustee either expressed or
implied contained herein, all such liability, if any, being expressly waived by
the Noteholder or Note Owner and by any person claiming by, through or under any
such Noteholder or Note Owner, and (iv) under no circumstances shall The Bank of
New York (Delaware) be personally liable for the payment of any indebtedness or
expense of the Owner Trustee or be liable for the payment of any indebtedness or
expense of the Owner Trustee or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the Owner
Trustee under this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
____________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200_
By: */____________________________
Signature Guaranteed:
*/____________________________
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
A-3 2002-1 Indenture
EXHIBIT A-4
[Form of Class A-4 Note]
REGISTERED $68,187,500
No. R-1 CUSIP NO.: 00000XXX0
ISIN NO.: US55255PAJ93
Common Code: 015586389
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
M&I AUTO LOAN TRUST 2002-1
3.04% CLASS A-4 ASSET BACKED NOTES
M&I Auto Loan Trust 2002-1, a trust existing under the laws of the State of
Delaware (herein referred to as the "Trust"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of
SIXTY-EIGHT MILLION ONE HUNDRED EIGHTY-SEVEN THOUSAND FIVE HUNDRED DOLLARS
($68,187,500) payable on each Payment Date in an amount equal to the aggregate
amount, if any, payable to Noteholders of Class A-4 Notes on such Payment Date
from the Principal Distribution Account in respect of principal on the Class A-4
Notes pursuant to Section 3.1 of the Indenture dated as of October 10, 2002 (as
from time to time amended, supplemented or otherwise modified and in effect, the
"Indenture"), among The Bank of New York (Delaware), not in its individual
capacity but solely as owner trustee of the Trust (the "Owner Trustee"), Bank
One, National Association, a national banking association, as Indenture Trustee
(in such capacity the "Indenture Trustee") and M&I Xxxxxxxx & Ilsley Bank, as
Servicer ("M&I Bank"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the October 20, 2008, Payment
Date (the "Class A-4 Final Scheduled Payment Date"). Capitalized terms used but
not defined herein are defined in Appendix X to the Sale and Servicing
Agreement, dated as of October 10, 2002, among M&I Bank, M&I Dealer Auto
Securitization, LLC, as the seller (the "Seller"), the Owner Trustee and the
Indenture Trustee (the "Sale and Servicing Agreement"), which also contains
rules as to construction that shall be applicable herein.
The Owner Trustee shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the twentieth day of the calendar month immediately
preceding such Payment Date (or, in the case of the initial Payment Date, from
the Closing Date) to but excluding the twentieth day of the following calendar
month. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Owner
Trustee with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: October 10, 0000
XXX XXXX XX XXX XXXX (DELAWARE), not in its
individual capacity but solely as Owner
Trustee of M&I Auto Loan Trust 2002-1
By: ______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Notes designated above and referred to in the
within-mentioned Indenture.
Date: October 10, 2002
BANK ONE, NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Authenticating Agent
By: ______________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Trust,
designated as its 3.04% Class A-4 Asset Backed Notes (the "Class A-4 Notes")
which, together with the Trust's 1.77% Class A-1 Asset Backed Notes (the "Class
A-1 Notes"), 1.95% Class A-2 Asset Backed Notes (the "Class A-2 Notes"), 2.49%
Class A-3 Asset Backed Notes (the "Class A-3 Notes" and, together with the Class
A-1 Notes, the Class A-2 Notes and the Class A-4 Notes, the "Class A Notes") and
3.52% Class B Asset Backed Notes (the "Class B Notes" and, together with the
Class A Notes and the Class B Notes, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Owner Trustee, the Indenture Trustee and the Noteholders. The
Notes are subject to all terms of the Indenture.
The Class A-4 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-4 Notes are subordinated in right of payment to the Class A-1 Notes, the Class
A-2 Notes and the Class A-3 Notes and are senior in right of payment to the
Class B Notes, each as and to the extent provided in the Indenture.
Principal of the Class A-4 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth day of
each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 15, 2001. All principal payments on the Class
A-4 Notes shall be made pro rata to the Class A-4 Noteholders entitled thereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the Class A-4 Final Scheduled Payment Date.
Notwithstanding the foregoing, if an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class may declare all the Notes to be immediately due and
payable, by a notice in writing to Owner Trustee (and to the Indenture Trustee
if given by Noteholders), and upon any such declaration the unpaid principal
amount of such Notes, together with accrued and unpaid interest thereon through
the date of acceleration, shall become immediately due and payable in the manner
provided in Section 5.2 of the Indenture. In such event, all payments on the
Class A-1 Notes will be made in accordance with the provisions of the Indenture.
Payments of interest on this Note on each Payment Date, together with the
installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture and, in such event, all
principal payments on each class of Notes shall be made pro rata to the
Noteholders of such class entitled thereto. Indenture Trustee shall notify the
Person in whose name a Note is registered at the close of business on the Record
Date preceding the Payment Date on which Indenture Trustee expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such final Payment
Date and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2 of the Indenture.
The Owner Trustee shall pay interest on overdue installments of interest at
the Class A-4 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and the Class B Notes may
be redeemed, in whole but not in part, in the manner and to the extent described
in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Owner Trustee pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Indenture Trustee or the Owner Trustee, each in its individual
capacity, (ii) any owner of a beneficial interest in the Trust, (iii) any
partner, owner, beneficiary, agent, officer, director or employee of the
Indenture Trustee or the Owner Trustee, each in its individual capacity, or (iv)
any holder of a beneficial interest in the Trust, or the Indenture Trustee or of
any successor or assign of the Indenture Trustee or the Owner Trustee, each in
its individual capacity, except as any such Person may have expressly agreed and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity. Each Noteholder or Note Owner,
by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Trust for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Estate and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller to another securitization trust
or other Person or Persons in connection therewith (whether by way of a sale,
capital contribution or by virtue of the granting of a lien) ("Other Assets").
To the extent that, notwithstanding the agreements and provisions contained in
the preceding sentences of this paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, or (ii) is deemed
to have any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of insolvency
laws or otherwise (including by virtue of Section 1111(b) of the Federal
Bankruptcy Code or any successor provision having similar effect under the
Bankruptcy Code), and whether deemed asserted against or through Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, further acknowledges and agrees that any such interest, claim or benefit
in or from Other Assets is and shall be expressly subordinated to the
indefeasible payment in full of all obligations and liabilities of Seller which,
under the terms of the relevant documents relating to the securitization of such
Other Assets, are entitled to be paid from, entitled to the benefits of, or
otherwise secured by such Other Assets (whether or not any such entitlement or
security interest is legally perfected or otherwise entitled to priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against Seller or any other Person owned by Seller), including
the payment of post-petition interest on such other obligations and liabilities.
This subordination agreement shall be deemed a subordination agreement within
the meaning of Section 510(a) of the Bankruptcy Code. each Noteholder or Note
Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, further acknowledges and agrees that no adequate remedy at
law exists for a breach of this paragraph and the terms of this paragraph may be
enforced by an action for specific performance. The provisions of this paragraph
shall be for the third party benefit of those entitled to rely thereon and shall
survive the termination of this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller or the Trust, or join in any institution
against the Seller or the Trust of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, the Indenture or the other Basic Documents.
The Owner Trustee has entered into the Indenture and this Note is issued
with the intention that, for federal, state and local income, and franchise tax
purposes, the Notes will qualify as indebtedness secured by the Trust Estate.
Each Noteholder, by its acceptance of a Note (and each Note Owner by its
acceptance of a beneficial interest in a Note), will be deemed to agree to treat
the Notes for federal, state and local income, single business and franchise tax
purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Owner Trustee, the Indenture Trustee or any such agent
shall be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Owner Trustee and the Indenture Trustee to
enter into one or more supplemental indentures without the consent of the
Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of Outstanding Amount or of the Controlling Note Class, on behalf of
all Noteholders, to waive compliance by the Owner Trustee with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder of this Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Owner Trustee", as used in this Note, includes any successor to
the Owner Trustee under the Indenture.
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
THE NOTES ARE ISSUABLE ONLY IN REGISTERED FORM IN DENOMINATIONS AS PROVIDED
IN THE INDENTURE, SUBJECT TO CERTAIN LIMITATIONS THEREIN SET FORTH.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Owner Trustee, 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.
Each Noteholder or Note Owner expressly understands and agrees (i) that
this Note is executed and delivered by The Bank of New York (Delaware), not in
its individual capacity but solely as Owner Trustee under the Trust Agreement
dated as of October 10, 2002 with M&I Dealer Auto Securitization, LLC and M&I
Xxxxxxxx & Xxxxxx Bank (the "Trust Agreement") in the exercise of the power and
authority conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Owner Trustee
are not personal representations, undertakings and agreements of The Bank of New
York (Delaware), but are binding only on the trust estate created pursuant to
the Trust Agreement, (iii) nothing contained herein shall be construed as
creating any liability on The Bank of New York (Delaware), individually or
personally, to perform any covenant of the Owner Trustee either expressed or
implied contained herein, all such liability, if any, being expressly waived by
the Noteholder or Note Owner and by any person claiming by, through or under any
such Noteholder or Note Owner, and (iv) under no circumstances shall The Bank of
New York (Delaware) be personally liable for the payment of any indebtedness or
expense of the Owner Trustee or be liable for the payment of any indebtedness or
expense of the Owner Trustee or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the Owner
Trustee under this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200_
By: */____________________________
Signature Guaranteed:
*/____________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
A-4 2002-1 Indenture
EXHIBIT B
[Form of Class B Note]
REGISTERED $11,812,500
No. R-1 CUSIP NO.: 00000XXX0
ISIN NO.: US55255PAK66
Common Code: 015586443
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
M&I AUTO LOAN TRUST 2002-1
3.52% CLASS B ASSET BACKED NOTES
M&I Auto Loan Trust 2002-1, a trust existing under the laws of the State of
Delaware (herein referred to as the "Trust"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of
ELEVEN MILLION EIGHT HUNDRED TWELVE THOUSAND FIVE HUNDRED DOLLARS ($11,812,500)
payable on each Payment Date in an amount equal to the aggregate amount, if any,
payable to Noteholders of Class B Notes on such Payment Date from the Principal
Distribution Account in respect of principal on the Class B Notes pursuant to
Section 3.1 of the Indenture dated as of October 10, 2002 (as from time to time
amended, supplemented or otherwise modified and in effect, the "Indenture"),
among The Bank of New York (Delaware), not in its individual capacity but solely
as owner trustee of the Trust (the "Owner Trustee"), Bank One, National
Association, a national banking association, as Indenture Trustee (in such
capacity the "Indenture Trustee") and M&I Xxxxxxxx Xxxxxx Bank, as Servicer
("M&I Bank"); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the September 21, 2009, Payment
Date (the "Class B Final Scheduled Payment Date") and the Redemption Date, if
any, pursuant to Section 10.1(a) of the Indenture. Capitalized terms used but
not defined herein are defined in Appendix X to the Sale and Servicing
Agreement, dated as of October 10, 2002, among M&I Bank, M&I Dealer Auto
Securitization, LLC, as the seller (the "Seller"), the Owner Trustee and the
Indenture Trustee (the "Sale and Servicing Agreement"), which also contains
rules as to construction that shall be applicable herein.
The Owner Trustee shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the twentieth day of the calendar month immediately
preceding such Payment Date (or, in the case of the initial Payment Date, from
the Closing Date) to but excluding the twentieth day of the following calendar
month. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Owner
Trustee with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: October 10, 0000
XXX XXXX XX XXX XXXX (DELAWARE), not in its
individual capacity but solely as Owner
Trustee of M&I Auto Loan Trust 2002-1
By: __________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes designated above and referred to in the
within-mentioned Indenture.
Date: October 10, 2002
BANK ONE, NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Authenticating Agent
By:
__________________________________
Authorized Officer
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Trust,
designated as its 3.52% Class B Asset Backed Notes (the "Class B Notes") which,
together with the Trust's 1.77% Class A-1 Asset Backed Notes (the "Class A-1
Notes"), 1.95% Class A-2 Asset Backed Notes (the "Class A-2 Notes"), 2.49% Class
A-3 Asset Backed Notes (the "Class A-3 Notes") and 3.04% Class A-4 Asset Backed
Notes (the "Class A-4 Notes" and, together with the Class A-1 Notes, the Class
A-2 Notes and the Class A-3 Notes, the "Class A Notes", and, together with the
Class B Notes, the "Notes"), are issued under the Indenture, to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Owner Trustee, the
Indenture Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class B Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
B Notes are subordinated in right of payment to the Class A Notes, each as and
to the extent provided in the Indenture.
Principal of the Class B Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth day of
each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing November 20, 2002. All principal payments on the Class
B Notes shall be made pro rata to the Class B Noteholders entitled thereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class B Final Scheduled
Payment Date or the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. Notwithstanding the foregoing, if an Event of Default should occur
and be continuing, then and in every such case the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Controlling Note Class may declare all the Notes to be immediately due
and payable, by a notice in writing to Owner Trustee (and to the Indenture
Trustee if given by Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class B Notes will be made in accordance with the provisions
of the Indenture.
Payments of interest on this Note on each Payment Date, together with the
installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such
Class (and except for the Redemption Price for any Note called for redemption
pursuant to Section 10.1(a) of the Indenture) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3 of the Indenture. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class of Notes have declared the Notes to be immediately due
and payable in the manner provided in Section 5.2 of the Indenture and, in such
event, all principal payments on each class of Notes shall be made pro rata to
the Noteholders of such class entitled thereto. Indenture Trustee shall notify
the Person in whose name a Note is registered at the close of business on the
Record Date preceding the Payment Date on which Indenture Trustee expects that
the final installment of principal of and interest on such Note will be paid.
Such notice shall be mailed or transmitted by facsimile prior to such final
Payment Date and shall specify that such final installment will be payable only
upon presentation and surrender of such Note and shall specify the place where
such Note may be presented and surrendered for payment of such installment.
Notices in connection with redemptions of Notes shall be mailed to Noteholders
as provided in Section 10.2 of the Indenture.
The Owner Trustee shall pay interest on overdue installments of interest at
the Class B Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and the Class B Notes may
be redeemed, in whole but not in part, in the manner and to the extent described
in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Owner Trustee pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations,
the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture
or any certificate or other writing delivered in connection therewith, against
(i) the Indenture Trustee or the Owner Trustee, each in its individual capacity,
(ii) any owner of a beneficial interest in the Trust, (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Indenture Trustee or
the Owner Trustee, each in its individual capacity, or (iv) any holder of a
beneficial interest in the Trust or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee, each in its individual
capacity, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution for stock, unpaid capital contribution or failure to pay
any installment or call owing to such entity. Each Noteholder or Note Owner, by
its acceptance of a Note or, in the case of a Note Owner, a beneficial interest
in a Note, agrees that, except as expressly provided in the Basic Documents, in
the case of an Event of Default under the Indenture, the Noteholder shall have
no claim against any of the foregoing for any deficiency, loss or claim
therefrom; provided, however, that nothing contained herein shall be taken to
prevent recourse to, and enforcement against, the assets of the Trust for any
and all liabilities, obligations and undertakings contained in the Indenture or
in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Estate and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Seller to another securitization trust
or other Person or Persons in connection therewith (whether by way of a sale,
capital contribution or by virtue of the granting of a lien) ("Other Assets").
To the extent that, notwithstanding the agreements and provisions contained in
the preceding sentences of this paragraph, a Noteholder or Note Owner either (i)
asserts an interest or claim to, or benefit from, Other Assets, whether asserted
against or through Seller or any other Person owned by Seller, or (ii) is deemed
to have any such interest, claim or benefit in or from Other Assets, whether by
operation of law, legal process, pursuant to applicable provisions of insolvency
laws or otherwise (including by virtue of Section 1111(b) of the Federal
Bankruptcy Code or any successor provision having similar effect under the
Bankruptcy Code), and whether deemed asserted against or through Seller or any
other Person owned by Seller, then each Noteholder or Note Owner, by its
acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a
Note, further acknowledges and agrees that any such interest, claim or benefit
in or from Other Assets is and shall be expressly subordinated to the
indefeasible payment in full of all obligations and liabilities of Seller which,
under the terms of the relevant documents relating to the securitization of such
Other Assets, are entitled to be paid from, entitled to the benefits of, or
otherwise secured by such Other Assets (whether or not any such entitlement or
security interest is legally perfected or otherwise entitled to priority of
distribution or application under applicable law, including insolvency laws, and
whether asserted against Seller or any other Person owned by Seller), including
the payment of post-petition interest on such other obligations and liabilities.
This subordination agreement shall be deemed a subordination agreement within
the meaning of Section 510(a) of the Bankruptcy Code. each Noteholder or Note
Owner, by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, further acknowledges and agrees that no adequate remedy at
law exists for a breach of this paragraph and the terms of this paragraph may be
enforced by an action for specific performance. The provisions of this paragraph
shall be for the third party benefit of those entitled to rely thereon and shall
survive the termination of this Agreement.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller or the Trust, or join in any institution
against the Seller or the Trust of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, the Indenture or the other Basic Documents.
The Owner Trustee has entered into the Indenture and this Note is issued
with the intention that, for federal, state and local income, and franchise tax
purposes, the Notes will qualify as indebtedness secured by the Trust Estate.
Each Noteholder, by its acceptance of a Note (and each Note Owner by its
acceptance of a beneficial interest in a Note), will be deemed to agree to treat
the Notes for federal, state and local income, single business and franchise tax
purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Owner Trustee, the Indenture Trustee or any such agent
shall be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Owner Trustee and the Indenture Trustee to
enter into one or more supplemental indentures without the consent of the
Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of the Outstanding Amount or of the Controlling Note Class, on
behalf of all Noteholders, to waive compliance by the Owner Trustee with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder of this Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Owner Trustee", as used in this Note, includes any successor to
the Owner Trustee under the Indenture.
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Owner Trustee, 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.
Each Noteholder or Note Owner expressly understands and agrees (i) that
this Note is executed and delivered by The Bank of New York (Delaware), not in
its individual capacity but solely as Owner Trustee under the Trust Agreement
dated as of October 10, 2002 with M&I Dealer Auto Securitization, LLC and M&I
Xxxxxxxx & Xxxxxx Bank (the "Trust Agreement") in the exercise of the power and
authority conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Owner Trustee
are not personal representations, undertakings and agreements of The Bank of New
York (Delaware), but are binding only on the trust estate created pursuant to
the Trust Agreement, (iii) nothing contained herein shall be construed as
creating any liability on The Bank of New York (Delaware), individually or
personally, to perform any covenant of the Owner Trustee either expressed or
implied contained herein, all such liability, if any, being expressly waived by
the Noteholder or Note Owner and by any person claiming by, through or under any
such Noteholder or Note Owner, and (iv) under no circumstances shall The Bank of
New York (Delaware) be personally liable for the payment of any indebtedness or
expense of the Owner Trustee or be liable for the payment of any indebtedness or
expense of the Owner Trustee or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the Owner
Trustee under this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
_________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 200_
By: */____________________________
Signature Guaranteed:
*/____________________________
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar.
B-1 2002-1 Indenture
EXHIBIT C
NOTICE OF FUNDING DATE
In accordance with the Indenture dated as of October 10, 2002 by and
between The Bank of New York (Delaware) as owner trustee (the "Owner Trustee"),
and Bank One, National Association, as indenture trustee (the "Indenture"), the
undersigned hereby gives notice of the Funding Date to occur on or before
__________________, 200_ for each of the Receivables listed on the Schedule of
Receivables attached hereto executed by the undersigned an accompanying this
Notice of Funding. Unless otherwise defined herein, capitalized terms have the
meanings set forth in the Indenture.
Such Subsequent Receivables represent the following amounts:
Aggregate Principal Balance of Subsequent Receivables
as of the Subsequent Cutoff Date: $__________________
Amount to be wired to M&I Bank in
payment for such Subsequent Receivables: $__________________
The undersigned hereby certifies that, in connection with the Funding
Date specified above, the undersigned has complied with all terms and provisions
specified in Section 2.16 of the Indenture, including, but not limited to,
delivery of the Officer's Certificate, as specified therein.
Date: ________________________, 200_
THE BANK OF NEW YORK (DELAWARE), not
in its individual capacity but
solely in its capacity as Owner
Trustee for M&I Auto Loan Trust
2002-1
By:__________________________________
Authorized Officer
C-1 2002-1 Indenture
EXHIBIT D
OFFICER'S CERTIFICATE
re: Funding Date
M&I XXXXXXXX & XXXXXX BANK
M&I DEALER AUTO SECURITIZATION, LLC
THE BANK OF NEW YORK (DELAWARE), not in its
individual capacity but solely as Owner Trustee of
M&I AUTO LOAN TRUST 2002-1
To: Bank One, National Association
This Officer's Certificate is being issued in accordance with Section
2.16 of that certain Indenture dated as of October 10, 2002 (the "Indenture") by
and between The Bank of New York (Delaware), not in its individual capacity but
solely as Owner Trustee (the "Owner Trustee") for M&I Auto Loan Trust 2002-1,
and Bank One, National Association, as indenture trustee. Terms not otherwise
defined herein shall have the meanings ascribed thereto in the Indenture.
By his or her signature below, the undersigned officer[s] of M&I Bank,
the Seller, and the Owner Trustee, as the case may be, certif[ies][y] that:
(a) The representations and warranties of the Seller contained in
Section 6.1 of the Sale and Servicing Agreement are true and correct as of the
date hereof are true and correct;
(b) the representations and warranties of M&I Bank set forth in Section 7.1
of the Sale and Servicing Agreement are true and correct as of the date hereof;
(c) the documents listed in Section 2.16(c)(ii) of the Indenture will be
delivered to the Custodian within two (2) Business Days preceding the Funding
Date specified herein; and
(d) the requirements stated in Section 2.16 of the Indenture regarding the
Subsequent Receivables to be acquired on the Funding Date have been met.
All conditions in the Purchase Agreement and the Sale and Servicing
Agreement have been met.
X-0 0000-0 Xxxxxxxxx
Date: ____________________, 200_
THE BANK OF NEW YORK (DELAWARE), not in its
individual capacity but solely in its
capacity as Owner Trustee for M&I Auto Loan
Trust 2002-1
By:
------------------------------------------
Authorized Officer
M&I DEALER AUTO SECURITIZATION, LLC
By:
------------------------------------------
Name:
Title:
M&I XXXXXXXX & ILSLEY BANK
By:
Name:
Title:
X-0 0000-0 Xxxxxxxxx
EXHIBIT E
FORM OF FINAL FUNDING DATE CERTIFICATE OF
M&I XXXXXXXX & XXXXXX BANK
OFFICER'S CERTIFICATE
I, _____________, officer of M&I Xxxxxxxx & Ilsley Bank, a banking
corporation organized under the laws of the State of Wisconsin ("M&I Bank"),
hereby certify that:
Pursuant to Section 2.16 of the Indenture dated as of October 10, 2002
between The Bank of New York (Delaware), not in its individual capacity but
solely as owner trustee of M&I Auto Loan Trust 2002-1 and Bank One, National
Association, as indenture trustee (the "Indenture"):
1. The originals of all documents required to be delivered to the
Custodian pursuant to Section 2.16 of the Indenture have been
or will be delivered pursuant to such Section.
2. All representations and warranties of M&I Bank contained in
he Purchase Agreement are true and correct and no defaults
exist under the Purchase Agreement.
3. M&I Bank is not in default under the Purchase Agreement and
the sale of the Receivables to the Seller will not result in
any material breach of any of the terms, conditions or
provisions of, or constitute a material default under, the
organizational documents or any other constituting documents
of M&I Bank or any indenture, mortgage, deed of trust or other
agreement or instrument to which M&I Bank is a party or by
which it is bound, or any order of any court or administrative
agency entered in any proceeding to which M&I Bank is a party
or by which it may be bound or to which it may be subject.
Unless otherwise indicated, all capitalized terms used herein have the
meanings assigned to them in the Indenture.
X-0 0000-0 Xxxxxxxxx
IN WITNESS WHEREOF, I have executed this Certificate as of this __ /th/
day of ________, 200_ on behalf of M&I Xxxxxxxx & Xxxxxx Bank.
By:__________________________________________
Name:
Title:
X-0 0000-0 Xxxxxxxxx
FORM OF FINAL FUNDING DATE CERTIFICATE OF MIDAS
M&I DEALER AUTO SECURITIZATION, LLC
OFFICER'S CERTIFICATE
I, ____________, President of M&I Dealer Auto Securitization, LLC, a
limited liability company organized under the laws of the State of Delaware (the
"Seller"), hereby certify that:
Pursuant to Section 2.16 of the Indenture dated as of October 10, 2002
between The Bank of New York (Delaware), not in its individual capacity but
solely as owner trustee of M&I Auto Loan Trust 2002-1 and Bank One, National
Association (the "Indenture"):
1. The Seller is not in default under the Purchase Agreement or
the Sale and Servicing Agreement, the transfer of the
Subsequent Receivables to the Owner Trustee will not result in
any breach of any of the terms, conditions or provisions of,
or constitute a material default under, the organizational
documents or any other constituent documents of the Seller or
any indenture, mortgage, deed of trust or other agreement or
instrument to which the Seller is a party or by which it is
bound, or any order of any court or administrative agency
entered in any proceeding to which the Seller is a party or by
which it may be bound or to which it may be subject.
2. All representations and warranties of the Seller contained in
the Sale and Servicing Agreement are true and correct.
3. The Seller has transferred to the Owner Trustee, without
recourse except as provided in the Sale and Servicing
Agreement, all of its right, title and interest in the
Subsequent Receivables free and clear of any lien, security
interest or charge.
4. The Seller has not assigned any interest or participation in
any of the Subsequent Receivables transferred to the Owner
Trustee pursuant to the Sale and Servicing Agreement and has
the right to contribute all such Subsequent Receivables to the
Owner Trustee.
Unless otherwise indicated, all capitalized terms used herein have the
meanings assigned to them in the Indenture.
X-0 0000-0 Xxxxxxxxx
IN WITNESS WHEREOF, I have executed this Certificate as of this __th
day of _________, 2002 on behalf of M&I Dealer Auto Securitization, LLC.
By:
---------------------------------
Name:
Title: President
X-0 0000-0 Xxxxxxxxx
FORM OF FINAL FUNDING DATE CERTIFICATE OF OWNER TRUSTEE
THE BANK OF NEW YORK (DELAWARE), NOT IN ITS INDIVIDUAL CAPACITY
BUT SOLELY AS OWNER TRUSTEE OF M&I AUTO LOAN TRUST 2002-1
I, ____________, officer of The Bank of New York (Delaware) on behalf
of M&I Auto Loan Trust 2002-1 a common law trust organized under the laws of the
State of Delaware (the "Owner Trustee"), hereby certify that:
Pursuant to Section 2.16 of the Indenture dated as of October 10, 2002
between The Bank of New York (Delaware), not in its individual capacity but
solely as owner trustee of M&I Auto Loan Trust 2002-1 and Bank One, National
Association (the "Indenture"):
(a) The Owner Trustee is not in default under the Sale and Servicing
Agreement or the Indenture, the Grant of the Subsequent Receivables to
the Indenture Trustee will not result in any breach of any of the
terms, conditions or provisions of, or constitute a material default
under, the organizational documents or any other constituent documents
of the Owner trustee or any indenture, mortgage, deed of trust or other
agreement or instrument to which the Owner Trustee is a party or by
which it is bound, or any order of any court or administrative agency
entered in any proceeding to which the Owner Trustee is a party or by
which it may be bound or to which it may be subject.
(b) All representations and warranties of the Owner Trustee contained
in the Sale and Servicing Agreement and in the Indenture are true and
correct.
(c) The Owner Trustee has Granted to the Indenture Trustee, without
recourse except as provided in the Indenture, all of its right, title
and interest in the Subsequent Receivables free and clear of any lien,
security interest or charge.
(d) The Owner Trustee has not assigned any interest or participation
in any of the Subsequent Receivables Granted to the Indenture Trustee
pursuant to the Indenture and has the right to contribute all such
Receivables to the Indenture Trustee.
Unless otherwise indicated, all capitalized terms used herein have the
meanings assigned to them in the Indenture.
X-0 0000-0 Xxxxxxxxx
IN WITNESS WHEREOF, I have executed this Certificate as of this __th
day of _________, 2002 on behalf of The Bank of New York (Delaware) not in its
individual capacity but solely as owner trustee of M&I Auto Loan Trust 2002-1.
By:
---------------------------------
Name:
Title: President
X-0 0000-0 Xxxxxxxxx
