Exhibit 4.2
EXECUTION COPY
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INDENTURE
between
AMSOUTH AUTO TRUST 2000-1
as Issuer
and
THE BANK OF NEW YORK TRUST
COMPANY OF FLORIDA, NATIONAL ASSOCIATION
as Indenture Trustee
Dated as of October 1, 2000
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CROSS REFERENCE TABLE/1/
TIA Indenture
Section Section
310 (a) (1).......................................................... 6.11
(a) (2).......................................................... 6.11
(a) (3).......................................................... 6.10
(a) (4).......................................................... N.A/2/
(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
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/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.
(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
TABLE OF CONTENTS
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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............................... 3
ARTICLE II THE NOTES......................................................... 3
SECTION 2.1 Form........................................................ 3
SECTION 2.2 Execution, Authentication and Delivery...................... 4
SECTION 2.3 Temporary Notes............................................. 4
SECTION 2.4 Registration of Transfer and Exchange....................... 5
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes.................. 7
SECTION 2.6 Persons Deemed Owner........................................ 8
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest....... 8
SECTION 2.8 Cancellation................................................ 9
SECTION 2.9 Release of Collateral....................................... 9
SECTION 2.10 Book-Entry Notes............................................ 9
SECTION 2.11 Notices to Clearing Agency.................................. 10
SECTION 2.12 Definitive Notes............................................ 11
SECTION 2.13 Authenticating Agents....................................... 11
SECTION 2.14 Tax Treatment............................................... 12
SECTION 2.15 Note Paying Agents.......................................... 12
ARTICLE III COVENANTS........................................................ 13
SECTION 3.1 Payment of Principal and Interest........................... 13
SECTION 3.2 Maintenance of Office or Agency............................. 13
SECTION 3.3 Money for Payments To Be Held in Trust...................... 13
SECTION 3.4 Existence................................................... 15
SECTION 3.5 Protection of Trust Estate.................................. 15
SECTION 3.6 Opinions as to Trust Estate................................. 16
SECTION 3.7 Performance of Obligations; Servicing of Receivables........ 16
SECTION 3.8 Negative Covenants.......................................... 18
SECTION 3.9 Annual Statement as to Compliance........................... 19
SECTION 3.10 Issuer May Consolidate, Etc................................. 19
SECTION 3.11 Successor or Transferee..................................... 21
SECTION 3.12 No Other Business........................................... 21
SECTION 3.13 No Borrowing................................................ 21
SECTION 3.14 Servicer's Obligations...................................... 21
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities........... 21
SECTION 3.16 Capital Expenditures........................................ 22
(i)
SECTION 3.17 Restricted Payments...................................................... 22
SECTION 3.18 Notice of Events of Default.............................................. 22
SECTION 3.19 Further Instruments and Acts............................................. 22
SECTION 3.20 Removal of Administrator................................................. 22
ARTICLE IV SATISFACTION AND DISCHARGE..................................................... 23
SECTION 4.1 Satisfaction and Discharge of Indenture.................................. 23
SECTION 4.2 Application of Trust Money............................................... 24
SECTION 4.3 Repayment of Moneys Held by Paying Agent................................. 24
ARTICLE V REMEDIES........................................................................ 24
SECTION 5.1 Events of Default........................................................ 24
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment....................... 26
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee..................................................... 27
SECTION 5.4 Remedies; Priorities..................................................... 29
SECTION 5.5 Optional Preservation of the Receivables................................. 32
SECTION 5.6 Limitation of Suits...................................................... 32
SECTION 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest................................................... 33
SECTION 5.8 Restoration of Rights and Remedies....................................... 33
SECTION 5.9 Rights and Remedies Cumulative........................................... 33
SECTION 5.10 Delay or Omission Not a Waiver........................................... 34
SECTION 5.11 Control by Controlling Note Class of Noteholders......................... 34
SECTION 5.12 Waiver of Past Defaults.................................................. 34
SECTION 5.13 Undertaking for Costs.................................................... 35
SECTION 5.14 Waiver of Stay or Extension Laws......................................... 35
SECTION 5.15 Action on Notes.......................................................... 36
SECTION 5.16 Performance and Enforcement of Certain Obligations....................... 36
ARTICLE VI INDENTURE TRUSTEE.............................................................. 37
SECTION 6.1 Duties of Indenture Trustee.............................................. 37
SECTION 6.2 Rights of Indenture Trustee.............................................. 38
SECTION 6.3 Individual Rights of Indenture Trustee................................... 40
SECTION 6.4 Indenture Trustee's Disclaimer........................................... 40
SECTION 6.5 Notice of Defaults....................................................... 40
SECTION 6.6 Reports by Indenture Trustee to Holders.................................. 40
SECTION 6.7 Compensation and Indemnity............................................... 41
SECTION 6.8 Replacement of Indenture Trustee......................................... 41
SECTION 6.9 Successor Indenture Trustee by Merger.................................... 42
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee........ 43
(ii)
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SECTION 6.11 Eligibility; Disqualification.............................. 44
SECTION 6.12 Preferential Collection of Claims Against Issuer........... 45
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS.................................. 45
SECTION 7.1 Issuer to Furnish Indenture Trustee Names and Addresses of
Noteholders................................................ 45
SECTION 7.2 Preservation of Information; Communications to
Noteholders................................................ 46
SECTION 7.3 Reports by Issuer.......................................... 46
SECTION 7.4 Reports by Indenture Trustee............................... 47
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES........................... 47
SECTION 8.1 Collection of Money........................................ 47
SECTION 8.2 Trust Accounts............................................. 47
SECTION 8.3 General Provisions Regarding Accounts...................... 50
SECTION 8.4 Release of Trust Estate.................................... 50
SECTION 8.5 Opinion of Counsel......................................... 51
ARTICLE IX SUPPLEMENTAL INDENTURES.......................................... 51
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders..... 51
SECTION 9.2 Supplemental Indentures with Consent of Noteholders........ 53
SECTION 9.3 Execution of Supplemental Indentures....................... 55
SECTION 9.4 Effect of Supplemental Indenture........................... 55
SECTION 9.5 Conformity With Trust Indenture Act........................ 55
SECTION 9.6 Reference in Notes to Supplemental Indentures.............. 55
ARTICLE X REDEMPTION OF NOTES............................................... 56
SECTION 10.1 Redemption................................................. 56
SECTION 10.2 Form of Redemption Notice.................................. 56
SECTION 10.3 Notes Payable on Redemption Date........................... 57
ARTICLE XI MISCELLANEOUS.................................................... 57
SECTION 11.1 Compliance Certificates and Opinions, etc.................. 57
SECTION 11.2 Form of Documents Delivered to Indenture Trustee........... 59
SECTION 11.3 Acts of Noteholders........................................ 60
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and
Rating Agencies............................................ 60
SECTION 11.5 Notices to Noteholders; Waiver............................. 61
SECTION 11.6 Alternate Payment and Notice Provisions.................... 61
SECTION 11.7 Conflict with Trust Indenture Act.......................... 62
SECTION 11.8 Effect of Headings and Table of Contents................... 62
SECTION 11.9 Successors and Assigns..................................... 62
(iii)
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SECTION 11.10 Separability............................................. 62
SECTION 11.11 Benefits of Indenture.................................... 62
SECTION 11.12 Legal Holidays........................................... 62
SECTION 11.13 GOVERNING LAW............................................ 63
SECTION 11.14 Counterparts............................................. 63
SECTION 11.15 Recording of Indenture................................... 63
SECTION 11.16 Trust Obligation......................................... 63
SECTION 11.17 No Petition.............................................. 64
SECTION 11.18 Inspection............................................... 64
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Exhibit A-1 Form of Class A-1 Note
Exhibit A-2 Form of Class A-2 Note
Exhibit A-3 Form of Class A-3 Note
Exhibit A-4 Form of Class A-4 Note
Exhibit B Form of Class B Note
Exhibit C Form of Class C Note
(iv)
INDENTURE dated as of October 1, 2000, (as from time to time amended,
supplemented or otherwise modified and in effect, this "Indenture") between
AMSOUTH AUTO Trust 2000-1 a New York common law trust ("Issuer"), and The Bank
of New York Trust Company of Florida, National Association, a national banking
association, solely as trustee and not in its individual capacity ("Indenture
Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of Issuer's 6.745% Class A-1 Asset
Backed Notes (the "Class A-1 Notes"), 6.700% Class A-2 Asset Backed Notes (the
"Class A-2 Notes"), 6.670% Class A-3 Asset Backed Notes (the "Class A-3 Notes"),
6.760% 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"), 7.080% Class B Asset Backed Notes (the "Class B Notes") and 7.440%
Class C Asset Backed Notes (the "Class C Notes" and, together with the Class A
Notes and Class B Notes, the "Notes"):
GRANTING CLAUSE
Issuer hereby Grants to Indenture Trustee at the Closing Date, as Indenture
Trustee for the benefit of the Holders of the Notes, all of Issuer's right,
title and interest in and to (a) the Receivables, and all moneys received
thereon after the Cutoff Date; (b) the security interests in the Financed
Vehicles granted by Obligors pursuant to the Receivables and any other interest
of Issuer in the Financed Vehicles and any other property that shall secure the
Receivables; (c) any proceeds with respect to the Receivables from claims on any
Insurance Policies covering Financed Vehicles or the Obligors or from claims
under any lender's single interest insurance policy naming AmSouth 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 all investments and proceeds thereof; (g) under the Purchase
Agreement, including the right of Issuer to cause AmSouth Bank to repurchase
Receivables from Issuer pursuant to the Purchase Agreement; (h) in any
instrument or document relating to the Receivables; (i) the Issuer's rights
under the Sale and Servicing Agreement; and (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
0000-0 Xxxxxxxxx
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 (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.
The Bank of New York Trust Company of Florida, 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.
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 September
1, 2000, among AmSouth Auto Receivables LLC, as Seller, the Issuer and AmSouth
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.
2000-1 Indenture
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"obligor" on the indenture securities means Issuer and any other obligor on
the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
SECTION 1.3 Other Interpretive Provisions. All terms defined in this
Indenture shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Indenture and all such certificates and other documents, unless
the context otherwise requires: (a) accounting terms not otherwise defined in
this Indenture, and accounting terms partly defined in this Indenture to the
extent not defined, shall have the respective meanings given to them under
generally accepted 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, Class B Notes and Class C Notes, in each case together with
Indenture Trustee's certificate of authentication, shall be in substantially the
forms set forth in Exhibits X-0, X-0, X-0, X-0, B and C, respectively, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may, consistently herewith, be determined by the officers executing such Notes,
as evidenced by their execution of the Notes. Any portion of the text of any
Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.
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.
0000-0 Xxxxxxxxx
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Each Note shall be dated the date of its authentication. The terms of the
Notes set forth in Exhibits X-0, X-0, X-0, X-0, B and C are part of the terms of
this Indenture.
SECTION 2.2 Execution, Authentication and Delivery. The Notes shall be
executed on behalf of Issuer by any of its Authorized Officers. The signature of
any such Authorized Officer on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signature of individuals who were at
any time Authorized Officers of Issuer shall bind Issuer, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.
Indenture Trustee shall upon Issuer Order authenticate and deliver Class
A-1 Notes for original issue in an aggregate principal amount of $230,000,000,
Class A-2 Notes for original issue in the aggregate principal amount of
$240,000,000, Class A-3 Notes for original issue in the aggregate principal
amount of $315,000,000, Class A-4 Notes for original issue in the aggregate
principal amount of $103,640,000, Class B Notes for original issue in the
aggregate principal amount of $28,510,000 and Class C Notes for original issue
in the aggregate principal amount of $14,260,000. The aggregate principal amount
of Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, class A-4 Notes, Class B
Notes and Class C Notes outstanding at any time may not exceed such amounts
except as provided in Section 2.5.
Each Note shall be dated the date of its authentication. The Notes shall be
issuable as registered Notes in the minimum denomination of $1,000 and in
integral multiples thereof (except for one Note of each class which may be
issued in a denomination other than an integral multiple of $1,000).
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,
Issuer may execute, and upon receipt of an Issuer Order, Indenture Trustee shall
authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, of the tenor of the Definitive
Notes in lieu of which they are issued and with such variations not inconsistent
with
2000-1 Indenture
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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, Issuer will cause Definitive Notes to be
prepared without unreasonable delay. After the preparation of Definitive Notes,
the temporary Notes shall be exchangeable for Definitive Notes upon surrender of
the temporary Notes at the office or agency of Issuer to be maintained as
provided in Section 3.2, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes, Issuer shall execute and
Indenture Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Notes.
SECTION 2.4 Registration of Transfer and Exchange. Issuer shall cause to
be kept a register (the "Note Register") in which, subject to such reasonable
regulations as it may prescribe, Issuer shall provide for the registration of
Notes and the registration of transfers of Notes. Indenture Trustee or its
designee shall initially be "Note Registrar" for the purpose of registering
Notes and transfers of Notes as herein provided. Upon any resignation of any
Note Registrar, Issuer shall promptly appoint a successor or, if it elects not
to make such an appointment, assume the duties of Note Registrar.
If a Person other than Indenture Trustee is appointed by Issuer as Note
Registrar, Issuer will give Indenture Trustee prompt written notice of the
appointment of such 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.
Upon surrender for registration of transfer of any Note at the office or
agency of Issuer to be maintained as provided in Section 3.2, if the
requirements of Section 8-401(1) of the UCC are met, Issuer shall execute and
upon its written request Indenture Trustee shall authenticate and the Noteholder
shall obtain from Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes, in any authorized denominations, of the same
class and a like aggregate principal amount.
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
2000-1 Indenture
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UCC are met Issuer shall execute and upon its written request Indenture Trustee
shall authenticate and the Noteholder shall obtain from Indenture Trustee, the
Notes which the Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of Issuer, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Notes surrendered upon such
registration of transfer or exchange.
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 Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
The preceding provisions of this section notwithstanding, Issuer shall not
be required to make and Note Registrar need not register transfers or exchanges
of Notes selected for redemption or of any Note for a period of 15 days
preceding the due date for any payment with respect to the Note.
No Note, or any interest therein, may be transferred to an "employee
benefit plan" within the meaning of Section 3(3) of ERISA that is subject to
ERISA, a "plan" described in Section 4975(e)(1) of the Code, any entity that is
deemed to hold "plan assets" of any of the foregoing by reason of an employee
benefit plan's or other plan's investment in such entity, or any governmental
plan subject to applicable law that is substantially similar to the fiduciary
responsibility provisions of ERISA or Section 4975 of the Code, unless such
transferee represents, warrants and covenants that its purchase and holding of
such Note is and will be eligible for, and satisfies and will satisfy all the
requirements of, Department of Labor prohibited transaction class exemption
("PTE") 90-1; PTE 96-23; PTE 95-60: PTE 91-38; PTE 84-14 or another applicable
prohibited transaction exemption (or in the case of a governmental plan, will
not violate any applicable law that is substantially similar to ERISA or Section
4975 of the Code). By its acquisition of a Note or any interest
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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 Issuer and Indenture Trustee
harmless, then, in the absence of notice to Issuer, Note Registrar or Indenture
Trustee that such Note has been acquired by a bona fide purchaser, and provided
that the requirements of Section 8-405 of the UCC are met, Issuer shall execute
and upon its written request Indenture Trustee shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Note, a replacement Note; provided that if any such destroyed, lost or stolen
Note, but not a mutilated Note, shall have become or within seven days shall be
due and payable, or shall have been called for redemption, instead of issuing a
replacement Note, Issuer may upon delivery of the security or indemnity herein
required pay such destroyed, lost or stolen Note when so due or payable or upon
the Redemption Date without surrender thereof. If, after the delivery of such
replacement Note or payment of a destroyed, lost or stolen Note pursuant to the
proviso to the preceding sentence, a bona fide purchaser of the original Note in
lieu of which such replacement Note was issued presents for payment such
original Note, Issuer and Indenture Trustee shall be entitled to recover such
replacement Note (or such payment) from the Person to whom it was delivered or
any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
Issuer or Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, Issuer may
require the payment by the Holder of such Note of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of Indenture Trustee)
connected therewith.
Every replacement Note issued pursuant to this Section in replacement of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any 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.
2000-1 Indenture
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, Issuer, Indenture Trustee and any agent of
Issuer or Indenture Trustee may treat the Person in whose name any Note is
registered (as of the day of determination) as the owner of such Note for the
purpose of receiving payments of principal of and interest, if any, on such Note
and for all other purposes whatsoever, whether or not such Note be overdue, and
neither Issuer, Indenture Trustee nor any agent of Issuer or Indenture Trustee
shall be affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest. (a)
The Notes shall accrue interest as provided in the forms of the Class A-1 Note,
Class A-2 Note, Class A-3 Notes, Class A-4 Notes, Class B Notes, Class C Notes,
set forth in Exhibits X-0, X-0, X-0, X-0, B and C, respectively, and such
interest shall be payable on each Distribution Date as specified therein,
subject to Section 3.1. Any installment of interest or principal, if any,
payable on any Note which is punctually paid or duly provided for by Issuer on
the applicable Distribution Date shall be paid to the Person in whose name such
Note (or one or more Predecessor Notes) is registered on the Record Date, by
check mailed first-class, postage prepaid, to such Person's address as it
appears on the Note Register on such Record Date, except that, unless Definitive
Notes have been issued pursuant to Section 2.12, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment 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 Distribution Date or on the Final Scheduled Distribution 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
Distribution Date as provided in the forms of the Class A-1 Note, Class A-2
Note, Class A-3 Note, Class A-4 Note, Class B Note and Class C Note, set forth
in Exhibits X-0, X-0, X-0, X-0, B and C, respectively. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default shall
have occurred and be continuing, if Indenture Trustee or the Holders of the
Notes representing not less than a majority of the Outstanding Amount of the
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
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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 Distribution Date on which Issuer
expects that the final installment of principal of and interest on such Note
will be paid. Such notice shall be mailed or transmitted by facsimile prior to
such final Distribution 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 Issuer defaults in a payment of interest on the Notes, Issuer shall
pay defaulted interest (plus interest on such defaulted interest to the extent
lawful) at the applicable Note Interest Rate on the Distribution Date following
such default. The Issuer shall pay such defaulted interest to the Holders of
Notes on the Record Date for such following Distribution Date.
SECTION 2.8 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than Indenture Trustee, be delivered to Indenture Trustee and shall
be promptly cancelled by Indenture Trustee. Issuer may at any time deliver to
Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder which Issuer may have acquired in any manner whatsoever, and
all Notes so delivered shall be promptly cancelled by Indenture Trustee. No
Notes shall be authenticated in lieu of or in exchange for any Notes cancelled
as provided in this Section, except as expressly permitted by this Indenture.
All cancelled Notes may be held or disposed of by Indenture Trustee in
accordance with its standard retention or disposal policy as in effect at the
time unless Issuer shall direct by an Issuer Order that they be destroyed or
returned to it; provided that such Issuer Order is timely and the Notes have not
been previously disposed of by Indenture Trustee.
SECTION 2.9 Release of Collateral. Subject to Section 11.1, Indenture
Trustee shall release property from the lien of this Indenture only in
accordance with the Basic Documents and upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates. If the Commission shall
issue an exemptive order under TIA Section 304(d) modifying Owner Trustee's
obligations under TIA Sections 314(c) and 314(d)(1), subject to Section 11.1 and
the terms of the Basic Documents, Indenture Trustee shall release property from
the lien of this Indenture in accordance with the conditions and procedures set
forth in such exemptive order.
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance, will be
issued in the form of typewritten Notes representing the Book-Entry Notes, to be
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delivered to The Bank of New York, as custodian for The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, Issuer. Such Notes
shall initially be registered on the Note Register in the name of Cede & Co.,
the nominee of the initial Clearing Agency, and no Note Owner will receive a
Definitive Note representing such Note Owner's interest in such Note, except as
provided in Section 2.12. Unless and until definitive, fully registered Notes
(the "Definitive Notes") have been issued to Note Owners pursuant to Section
2.12:
(a) the provisions of this Section shall be in full force and effect;
(b) Note Registrar and Indenture Trustee shall be entitled to deal
with the Clearing Agency for all purposes of this Indenture (including the
payment of principal of and interest on the Notes and the giving of
instructions or directions hereunder) as the sole Holder of the Notes, and
shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section conflict with
any other provisions of this Indenture, the provisions of this Section
shall control;
(d) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants or Persons acting through Clearing Agency
Participants. Pursuant to the Note Depository Agreement, unless and until
Definitive Notes are issued pursuant to Section 2.12, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal of and interest
on the Notes to such Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Notes evidencing a
specified percentage of the Outstanding Amount of the Notes (or any class
thereof, including the Controlling Note Class), the Clearing Agency shall
be deemed to represent such percentage only to the extent that it has
received instructions to such effect from Note Owners and/or Clearing
Agency Participants or Persons acting through Clearing Agency Participants
owning or representing, respectively, such required percentage of the
beneficial interest in the Notes (or 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
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to be given to Holders of the Notes to the Clearing Agency, and shall have no
obligation to the Note Owners.
SECTION 2.12 Definitive Notes. If (a) Seller advises Indenture Trustee in
writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Notes, and Seller is unable
to locate a qualified successor, (b) Seller at its option advises Indenture
Trustee in writing that it elects to terminate the book-entry system through the
Clearing Agency or (c) after the occurrence of an Event of Default, Note Owners
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of the Notes advise Indenture Trustee through the Clearing
Agency in writing that the continuation of a book entry system through the
Clearing Agency is no longer in the best interests of the Note Owners, then the
Clearing Agency shall notify all Note Owners and Indenture Trustee of the
occurrence of any such event and of the availability of Definitive Notes to Note
Owners requesting the same. Upon surrender to Indenture Trustee of the
typewritten Note or Notes representing the Book-Entry Notes by the Clearing
Agency, accompanied by registration instructions, Issuer shall execute and
Indenture Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency. None of Issuer, Note Registrar or Indenture
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Notes, Indenture Trustee shall recognize the
Holders of the Definitive Notes as Noteholders.
SECTION 2.13 Authenticating Agents. (a) The Indenture Trustee may
appoint one or more Persons (each, an "Authenticating Agent") with power to act
on its behalf and subject to its direction in the authentication of Notes in
connection with issuance, transfers and exchanges under Sections 2.2, 2.3, 2.4,
2.5 and 9.6, as fully to all intents and purposes as though each such
Authenticating Agent had been expressly authorized by those Sections to
authenticate such Notes. For all purposes of this Indenture, the authentication
of Notes by an Authenticating Agent pursuant to this Section shall be deemed to
be the authentication of Notes "by the Indenture Trustee." The Indenture
Trustee shall be the Authenticating Agent in the absence of any appointment
thereof.
(b) Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, without the execution or filing of any
further act on the part of the parties hereto or such Authenticating Agent or
such successor corporation.
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(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to Indenture Trustee and Owner Trustee. Indenture Trustee
may at any time terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and Owner Trustee.
Upon receiving such notice of resignation or upon such a termination, Indenture
Trustee may appoint a successor Authenticating Agent and shall give written
notice of any such appointment to Owner Trustee.
(d) The Administrator agrees to pay to each Authenticating Agent (other
than the Indenture Trustee) from time to time reasonable compensation for its
services as agreed upon between the Authenticating Agent and the Administrative
Agent. The provisions of Sections 2.8 and 6.4 shall be applicable to any
Authenticating Agent.
SECTION 2.14 Tax Treatment. Issuer has entered into this Indenture, and
the Notes shall be issued, with the intention that, for federal, state and local
income and franchise tax purposes, the Notes shall qualify as indebtedness
secured by the Trust Estate. Issuer, by entering into this Indenture, and each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of an interest in the applicable Book-Entry Note), agree to treat the Notes for
federal, state and local income and franchise tax purposes as indebtedness.
SECTION 2.15 Note Paying Agents. (a) 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 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.
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ARTICLE III COVENANTS.
SECTION 3.1 Payment of Principal and Interest. Issuer will duly and
punctually pay the principal of and interest on the Notes in accordance with the
terms of the Notes and this Indenture. Without limiting the foregoing, subject
to Section 8.2(c), Issuer will cause to be distributed all amounts on deposit in
the Note Distribution Account on a Distribution Date deposited therein pursuant
to the Sale and Servicing Agreement. Amounts properly withheld under the Code
by any Person from a payment to any Noteholder of interest and/or principal
shall be considered as having been paid by Issuer to such Noteholder for all
purposes of this Indenture.
SECTION 3.2 Maintenance of Office or Agency. Issuer will maintain in the
Borough of Manhattan, The City of New York, an office or agency where Notes may
be surrendered for registration of transfer or exchange, and where notices and
demands to or upon Issuer in respect of the Notes and this Indenture may be
served. Issuer hereby initially appoints Indenture Trustee to serve as its agent
for the foregoing purposes. Issuer will give prompt written notice to Indenture
Trustee of the location, and of any change in the location, of any such office
or agency. If at any time Issuer shall fail to maintain any such office or
agency or shall fail to furnish Indenture Trustee with the address thereof, such
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and Issuer hereby appoints Indenture Trustee as its agent to receive all
such surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust. As provided in
Section 8.2, all payments of amounts due and payable with respect to any Notes
that are to be made from amounts withdrawn from the Collection Account and the
Note Distribution Account pursuant to Section 8.2(c) shall be made on behalf of
Issuer by Indenture Trustee or by another Paying Agent, and no amounts so
withdrawn from the Collection Account and the Note Distribution Account for
payments of Notes shall be paid over to Issuer except as provided in this
Section.
On or before each Distribution Date and Redemption Date, Issuer 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 Persons entitled thereto and (unless the
Paying Agent is Indenture Trustee) shall promptly notify Indenture Trustee of
its action or failure so to act.
Issuer will cause each Paying Agent other than Indenture Trustee to execute
and deliver to Indenture Trustee an instrument in which such Paying Agent shall
agree with Indenture Trustee (and if Indenture Trustee acts as Paying Agent, it
hereby so agrees), subject to the provisions of this Section, that such Paying
Agent will:
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(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 Issuer (or any
other obligor upon the Notes) of which it has actual knowledge in the
making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon
the written request of Indenture Trustee, forthwith pay to Indenture
Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
Indenture Trustee all sums held by it in trust for the payment of Notes if
at any time it ceases to meet the standards required to be met by a Paying
Agent at the time of its appointment; and
(v) comply with all requirements of the Code and any State or local
tax law with respect to the withholding from any payments made by it on any
Notes of any applicable withholding taxes imposed thereon and with respect
to any applicable reporting requirements in connection therewith.
Issuer may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, by Issuer Order direct any
Paying Agent to pay to Indenture Trustee all sums held in trust by such Paying
Agent, such sums to be held by Indenture Trustee upon the same trusts as those
upon which the sums were held by such Paying Agent; and upon such a payment by
any Paying Agent to Indenture Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
Subject to applicable laws with respect to the escheat of funds, any money
held by Indenture Trustee or any Paying Agent in trust for the payment of any
amount due with respect to any Note and remaining unclaimed for two years after
such amount has become due and payable shall be discharged from such trust and
be paid to Issuer on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to Issuer for payment
thereof (but only to the extent of the amounts so paid to Issuer), and all
liability of Indenture Trustee or such Paying Agent with respect to such trust
money shall thereupon cease; provided that Indenture Trustee or such Paying
Agent, before being required to make any such repayment, shall at the expense of
Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains
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unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to Issuer. Indenture Trustee shall also adopt and
employ, at the expense of Issuer, any other reasonable means of notification of
such repayment (including, but not limited to, mailing notice of such repayment
to Holders whose Notes have been called but have not been surrendered for
redemption or whose right to or interest in moneys due and payable but not
claimed is determinable from the records of Indenture Trustee or of any Paying
Agent, at the last address of record for each such Holder).
SECTION 3.4 Existence. Except as otherwise permitted by the provisions
of Section 3.10, Issuer will keep in full effect its existence, rights and
franchises as a common law under the laws of the State of New York (unless it
becomes, or any successor Issuer hereunder is or becomes, organized under the
laws of any other state or of the United States of America, in which case Issuer
will keep in full effect its existence, rights and franchises under the laws of
such other jurisdiction) and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Indenture, the
Notes, the Collateral and each other instrument or agreement included in the
Trust Estate.
SECTION 3.5 Protection of Trust Estate. Issuer will from time to time
prepare (or shall cause to be prepared), execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and will take such other action necessary or advisable to:
(a) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(b) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(c) enforce any of the Collateral; or
(d) preserve and defend title to the Trust Estate and the rights of
Indenture Trustee and the Noteholders in such Trust Estate against the
claims of all persons and parties.
Issuer hereby designates Indenture Trustee its agent and attorney-in-fact
to execute any financing statement, continuation statement or other instrument
required by Issuer pursuant to this Section.
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SECTION 3.6 Opinions as to Trust Estate. (a) On the Closing Date,
Issuer shall furnish to Indenture Trustee an Opinion of Counsel either stating
that, in the opinion of such counsel, such action has been taken with respect to
the recording and filing of this Indenture, any indentures supplemental hereto,
and any other requisite documents, and with respect to the execution and filing
of any financing statements and continuation statements, as are necessary to
perfect and make effective the lien and security interest of this Indenture and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and security interest
effective.
(b) Within 120 days after the beginning of each calendar year, beginning
with the first calendar year beginning more than three months after the Cutoff
Date, Issuer shall furnish to Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and with
respect to the execution and filing of any financing statements and continuation
statements as are necessary to maintain the lien and security interest created
by this Indenture and reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to maintain such lien and
security interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that will, in the opinion of
such counsel, be required to maintain the lien and security interest of this
Indenture until April 30 in the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Receivables. (a)
Issuer will not take any action and will use its best efforts not to permit any
action to be taken by others that would release any Person from any of such
Person's material covenants or obligations under any instrument or agreement
included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
ordered by any bankruptcy or other court or as expressly provided in this
Indenture, the Basic Documents or such other instrument or agreement.
(b) Issuer may contract with other Persons to assist it in performing its
duties under this Indenture, and any performance of such duties by a Person
identified to Indenture Trustee in an Officer's Certificate of Issuer shall be
deemed to be action taken by Issuer. Initially, Issuer has contracted with
Servicer and the Administrator to assist Issuer in performing its duties under
this Indenture.
(c) Issuer will punctually perform and observe all of its obligations and
agreements contained in this Indenture, the Basic Documents and in the
instruments
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and agreements included in the Trust Estate, including but not limited to
preparing (or causing to prepared) and filing (or causing to be filed) all UCC
financing statements and continuation statements required to be filed by the
terms of this Indenture and the Sale and Servicing Agreement in accordance with
and within the time periods provided for herein and therein. Except as otherwise
expressly provided therein, Issuer shall not waive, amend, modify, supplement or
terminate any Basic Document or any provision thereof without the consent of
Indenture Trustee or the Holders of at least a majority of the Outstanding
Amount of the Notes.
(d) If Issuer shall have knowledge of the occurrence of a Servicer
Termination Event under the Sale and Servicing Agreement, Issuer shall promptly
notify Indenture Trustee and the Rating Agencies thereof in accordance with
Section 11.4, and shall specify in such notice the action, if any, Issuer is
taking in respect of such default. If a Servicer Termination Event shall arise
from the failure of Servicer to perform any of its duties or obligations under
the Sale and Servicing Agreement with respect to the Receivables, Issuer shall
take all reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination to
Servicer of Servicer's rights and powers pursuant to Section 8.1 of the Sale and
Servicing Agreement or the Servicer's resignation in accordance with the terms
of the Sale and Servicing Agreement, the 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. Issuer shall
enter into an agreement with such successor for the servicing of the Receivables
(such agreement to be in form and substance satisfactory to Indenture Trustee).
(f) Upon any termination of Servicer's rights and powers pursuant to the
Sale and Servicing Agreement, Issuer shall promptly notify Indenture Trustee. As
soon as a Successor Servicer (other than Indenture Trustee) is appointed, Issuer
shall
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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, Issuer 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, Issuer agrees, promptly following a request by Indenture
Trustee to do so, to execute and deliver, in its own name and at its own
expense, such agreements, instruments, consents and other documents as Indenture
Trustee may deem necessary or appropriate in the circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding,
Issuer shall not:
(a) except as expressly permitted by this Indenture or the Basic
Documents, sell, transfer, exchange or otherwise dispose of any of the
properties or assets of Issuer, including those included in the Trust
Estate, unless directed to do so by Indenture Trustee;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly
withheld from such payments under the Code) or assert any claim against any
present or former Noteholder by reason of the payment of the taxes levied
or assessed upon any part of the Trust Estate;
(c) dissolve or liquidate in whole or in part; or
(d) (i) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released
from any covenants or obligations with respect to the Notes under this
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Indenture except as may be expressly permitted hereby, (ii) permit any
lien, charge, excise, claim, security interest, mortgage or other
encumbrance (other than the lien of this Indenture) to be created on or
extend to or otherwise arise upon or burden the Trust Estate or any part
thereof or any interest therein or the proceeds thereof (other than tax
liens, mechanics' liens and other liens that arise by operation of law, in
each case on a Financed Vehicle and arising solely as a result of an action
or omission of the related Obligor) or (iii) permit the lien of this
Indenture not to constitute a valid first priority (other than with respect
to any such tax, mechanics' or other lien) security interest in the Trust
Estate.
SECTION 3.9 Annual Statement as to Compliance. Issuer will deliver to
Indenture Trustee, within 120 days after the end of each fiscal year of Issuer
(commencing 120 days after the fiscal year ended December 30, 2000), and
otherwise in compliance with the requirements of TIA Section 314(a)(4) an
Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that:
(a) a review of the activities of Issuer during such year and of
performance under this Indenture has been made under such Authorized
Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, Issuer has complied with all conditions and covenants under this
Indenture throughout such year, or, if there has been a default in the
compliance of any such condition or covenant, specifying each such default
known to such Authorized Officer and the nature and status thereof.
SECTION 3.10 Issuer May Consolidate, Etc. Only on Certain Terms. (a)
Issuer shall not consolidate or merge with or into any other Person, unless
(i) the Person (if other than Issuer) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the United States of America or any state and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
Indenture Trustee, in form satisfactory to Indenture Trustee, the due and
punctual payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this Indenture
on the part of Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
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(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) Issuer shall have received an Opinion of Counsel (and shall have
delivered copies thereof to Indenture Trustee) to the effect that such
transaction will not have any material adverse tax consequence to the
Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) Issuer shall have delivered to Indenture Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such consolidation
or merger and such supplemental indenture comply with this Article III and
that all conditions precedent herein provided for relating to such
transaction have been complied with (including any filing required by the
Exchange Act).
(b) Except as expressly contemplated by the Basic Documents, Issuer shall
not convey or transfer all or substantially all of its properties or assets,
including those included in the Trust Estate, to any Person, unless
(i) the Person that acquires by conveyance or transfer the properties
and assets of Issuer the conveyance or transfer of which is hereby
restricted shall (A) be a United States citizen or a Person organized and
existing under the laws of the United States of America or any state, (B)
expressly assume, by an indenture supplemental hereto, executed and
delivered to Indenture Trustee, in form satisfactory to Indenture Trustee,
the due and punctual payment of the principal of and interest on all Notes
and the performance or observance of every agreement and covenant of this
Indenture on the part of Issuer to be performed or observed, all as
provided herein, (C) expressly agree by means of such supplemental
indenture that all right, title and interest so conveyed or transferred
shall be subject and subordinate to the rights of Holders of the Notes, (D)
unless otherwise provided in such supplemental indenture, expressly agree
to indemnify, defend and hold harmless Issuer against and from any loss,
liability or expense arising under or related to this Indenture and the
Notes and (E) expressly agree by means of such supplemental indenture that
such Person (or if a group of persons, then one specified Person) shall
prepare (or cause to be prepared) and make all filings with the Commission
(and any other appropriate Person) required by the Exchange Act in
connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
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(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) Issuer shall have received an Opinion of Counsel (and shall have
delivered copies thereof to Indenture Trustee) to the effect that such
transaction will not have any material adverse tax consequence to the
Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) Issuer shall have delivered to Indenture Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such conveyance or
transfer and such supplemental indenture comply with this Article III and
that all conditions precedent herein provided for relating to such
transaction have been complied with (including any filing required by the
Exchange Act).
SECTION 3.11 Successor or Transferee. (a) Upon any consolidation or
merger of Issuer in accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than Issuer) shall succeed to,
and be substituted for, and may exercise every right and power of, Issuer under
this Indenture with the same effect as if such Person had been named as Issuer
herein.
(b) Upon a conveyance or transfer of all the assets and properties of
Issuer pursuant to Section 3.10(b), the Issuer will be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of Issuer with respect to the Notes immediately upon the delivery of written
notice to Indenture Trustee stating that the Issuer is to be so released.
SECTION 3.12 No Other Business. Issuer shall not engage in any business
other than financing, purchasing, owning, selling, managing and pledging the
Receivables in the manner contemplated by this Indenture and the Basic Documents
and activities incidental thereto.
SECTION 3.13 No Borrowing. Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14 Servicer's Obligations. Issuer shall cause Servicer to
comply with the Sale and Servicing Agreement, including Sections 4.9, 4.10 and
4.11 thereof.
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities. Except as
contemplated by the Sale and Servicing Agreement or this Indenture, Issuer shall
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not make any loan or advance or credit to, or guarantee (directly or indirectly
or by an instrument having the effect of assuring another's payment or
performance on any obligation or capability of so doing or otherwise), endorse
or otherwise become contingently liable, directly or indirectly, in connection
with the obligations, stocks or dividends of, or own, purchase, repurchase or
acquire (or agree contingently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital contribution to,
any other Person.
SECTION 3.16 Capital Expenditures. Issuer shall not make any expenditure
(by long-term or operating lease or otherwise) for capital assets (either realty
or personalty).
SECTION 3.17 Restricted Payments. Issuer shall not, directly or
indirectly, (a) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to Owner Trustee or any owner of a beneficial interest in Issuer or
otherwise with respect to any ownership or equity interest or security in or of
Issuer or to Servicer or Administrator, (b) redeem, purchase, retire or
otherwise acquire for value any such ownership or equity interest or security or
(c) set aside or otherwise segregate any amounts for any such purpose; provided
that Issuer may make, or cause to be made, 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. Issuer 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. Issuer agrees to give Indenture
Trustee and the Rating Agencies prompt written notice of each Event of Default
hereunder and each Event of Servicing Termination or default on the part of
Seller of its obligations under the Sale and Servicing Agreement.
SECTION 3.19 Further Instruments and Acts. Upon request of Indenture
Trustee, Issuer will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.20 Removal of Administrator. For so long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition shall have been satisfied in connection therewith.
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ARTICLE IV SATISFACTION AND DISCHARGE.
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to (a)
rights of registration of transfer and exchange, (b) substitution of mutilated,
destroyed, lost or stolen Notes, (c) rights of Noteholders to receive payments
of principal thereof and interest thereon, (d) Sections 3.3, 3.4, 3.5, 3.7(a),
3.8, 3.10, 3.12, 3.13, 3.15, 3.18 and 3.20, (e) the rights, obligations and
immunities of Indenture Trustee hereunder (including the rights of Indenture
Trustee under Section 6.7 and the obligations of Indenture Trustee under Section
4.2) and (f) the rights of Noteholders as beneficiaries hereof with respect to
the property so deposited with Indenture Trustee payable to all or any of them,
and Indenture Trustee, on demand of and at the expense of Issuer, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Notes, when
(i) either
(A) all Notes theretofore authenticated and delivered (other
than (1) Notes that have been destroyed, lost or stolen and that have
been replaced or paid as provided in Section 2.5 and (2) Notes for
which payment money has theretofore been deposited in trust or
segregated and held in trust by Issuer and thereafter repaid to Issuer
or discharged from such trust, as provided in Section 3.3) have been
delivered to Indenture Trustee for cancellation; or
(B) all Notes not theretofore delivered to Indenture Trustee for
cancellation
(1) have become due and payable,
(2) will become due and payable at the Final Scheduled
Distribution Date within one year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to Indenture Trustee for the giving of
notice of redemption by Indenture Trustee in the name, and at the
expense, of Issuer,
and Issuer, in the case of clauses (1), (2) or (3), has irrevocably
deposited or caused to be irrevocably deposited with Indenture Trustee
cash or direct obligations of or obligations guaranteed by the United
States of America (which will mature prior to the date such amounts
are payable), in trust for such purpose, in an amount sufficient to
pay and discharge the entire indebtedness on such Notes
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not theretofore delivered to Indenture Trustee for cancellation when
due to the Final Scheduled Distribution Date or Redemption Date (if
Notes shall have been called for redemption pursuant to Section
10.1(a)), as the case may be;
(ii) Issuer has paid or caused to be paid all other sums payable
hereunder by Issuer; and
(ii) Issuer has delivered to Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or Indenture
Trustee) an Independent Certificate from a firm of certified public
accountants, each meeting the applicable requirements of Section 11.1(a)
and each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with.
SECTION 4.2 Application of Trust Money. All moneys deposited with
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as 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
Issuer, be paid to Indenture Trustee to be held and applied according to Section
3.3 and thereupon such Paying Agent shall be released from all further liability
with respect to such moneys.
ARTICLE V REMEDIES.
SECTION 5.1 Events of Default. "Event of Default", wherever used herein,
means the occurrence of any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest on any Note of the
Controlling Note Class when the same becomes due and payable, and such
default shall continue for a period of five days;
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(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 Issuer made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere
in this Section 5.11 specifically dealt with), or any representation or
warranty of Issuer made in this Indenture or in any certificate or other
writing delivered pursuant hereto or in connection herewith proving to have
been incorrect in any material respect as of the time when the same shall
have been made, and such default shall continue or not be cured, or the
circumstance or condition in respect of which such misrepresentation or
warranty was incorrect shall not have been eliminated or otherwise cured,
for a period of 30 days (or for such longer period, not in excess of 90
days, as may be reasonably necessary to remedy such default; provided that
such default is capable of remedy within 90 days or less and Servicer on
behalf of Owner Trustee delivers an Officer's Certificate to Indenture
Trustee to the effect that Issuer has commenced, or will promptly commence
and diligently pursue, all reasonable efforts to remedy such default) after
the earlier of discovery or the time that there shall have been given, by
registered or certified mail, to Issuer by Indenture Trustee or to Issuer
and Indenture Trustee by the Holders of at least 25% of the Outstanding
Amount of the 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;
(d) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of Issuer or any substantial part
of the Trust Estate in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of Issuer or for any substantial part of
the Trust Estate, or ordering the winding-up or liquidation of Issuer's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(e) the commencement by Issuer of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by Issuer to the entry of an order
for relief in an involuntary case under any such law, or the consent by
Issuer to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of Issuer or
for any substantial part of the Trust Estate, or the making by Issuer of
any general
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assignment for the benefit of creditors, or the failure by Issuer generally
to pay its debts as such debts become due, or the taking of action by
Issuer in furtherance of any of the foregoing.
Issuer shall deliver to Indenture Trustee, within five days after the
occurrence thereof, written notice in the form of an Officer's Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (c), its status and what action Issuer is taking
or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. 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 Issuer
(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 Issuer and Indenture
Trustee, may rescind and annul such declaration and its consequences if:
(a) Issuer 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
(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.
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SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. (a) Issuer covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of five days, or (ii) default is made in the
payment of the principal of or any installment of the principal of any Note when
the same becomes due and payable, Issuer will, upon demand of Indenture Trustee,
pay to it, for the benefit of the Holders of the Notes, the whole amount then
due and payable on such Notes for principal and interest, with interest upon the
overdue principal, and, to the extent payment at such rate of interest shall be
legally enforceable, upon overdue installments of interest, at the rate
specified in Section 2.7 and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of Indenture
Trustee and its agents and counsel.
(b) In case Issuer shall fail forthwith to pay such amounts upon such
demand, Indenture Trustee, in its own name and as trustee of an express trust,
may institute a proceeding for the collection of the sums so due and unpaid, and
may prosecute such proceeding to judgment or final decree, and may enforce the
same against Issuer or other obligor upon such Notes and collect in the manner
provided by law out of the property of Issuer or other obligor upon such Notes,
wherever situated, the moneys adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, Indenture Trustee
may, as more particularly provided in Section 5.4, in its discretion, proceed to
protect and enforce its rights and the rights of the Noteholders, by such
appropriate proceedings as Indenture Trustee shall deem most effective to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Trust Estate, proceedings under Title 11 of the United States Code or any
other applicable Federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of Issuer or its property or such other obligor or Person, or
in case of any other comparable judicial proceedings relative to Issuer or other
obligor upon the Notes, or to the creditors or property of Issuer or such other
obligor, Indenture Trustee, irrespective of whether the principal of any Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether Indenture Trustee shall have made any
demand pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
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(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of Indenture Trustee (including any claim for reasonable
compensation to Indenture Trustee and each predecessor Indenture Trustee,
and their respective agents, attorneys and counsel, and for reimbursement
of all expenses and liabilities incurred, and all advances made, by
Indenture Trustee and each predecessor Indenture Trustee, except as a
result of negligence, bad faith or willful misconduct) and of the
Noteholders allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Notes in any election of a trustee, a standby
trustee or person performing similar functions in any such proceedings;
(iii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Noteholders and of Indenture Trustee on their
behalf; and
(iv) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of Indenture
Trustee or the Holders of Notes allowed in any judicial proceedings
relative to Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Noteholders to make
payments to Indenture Trustee, and, in the event that Indenture Trustee shall
consent to the making of payments directly to such Noteholders, to pay to
Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to Indenture Trustee, each predecessor 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
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any of the Notes or the production thereof in any trial or other proceedings
relative thereto, and any such action or proceedings instituted by Indenture
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the expenses, disbursements and
compensation of Indenture Trustee, each predecessor Indenture Trustee and their
respective agents and attorneys, shall be for the ratable benefit of the Holders
of the Notes.
(g) In any proceedings brought by Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which Indenture Trustee shall be a party), Indenture Trustee shall be held to
represent all the Holders of the Notes, and it shall not be necessary to make
any Noteholder a party to any such proceedings.
SECTION 5.4 Remedies; Priorities. (a) If an Event of Default shall have
occurred and be continuing, Indenture Trustee may do one or more of the
following (subject to Section 5.5):
(i) institute proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes
or under this Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from Issuer and any
other obligor upon such Notes moneys adjudged due;
(ii) institute proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and take
any other appropriate action to protect and enforce the rights and remedies
of Indenture Trustee and the Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
provided that Indenture Trustee may not sell or otherwise liquidate the Trust
Estate following an Event of Default unless:
(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
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(2) the proceeds of such sale or liquidation are sufficient to pay in
full the principal of and accrued interest on the Outstanding Notes and
outstanding Certificates.
(C) with respect to any Event of Default described in Section 5.1(d) and
(e):
(1) the Noteholders of Notes evidencing 100% of the principal amount
of the Controlling Note Class consent thereto; or
(2) the proceeds of such sale or liquidation are sufficient to pay in
full the principal of and the accrued interest on the Outstanding Notes; or
(3) the Indenture Trustee
(x) determines (but shall have no obligation to make such
determination) that the Indenture Trust Estate will not continue to
provide sufficient funds for the payment of principal of and interest
on the Notes as they would have become due if the Notes had not been
declared due and payable; and
(y) the Indenture Trustee obtains the consent of Noteholders of
Notes evidencing not less than 66 2/3% of the principal amount of the
Controlling Note Class; or
In determining such sufficiency or insufficiency with respect to clause (B)(2)
and (C)(2) or (C)(3)(x), Indenture Trustee may, but need not, obtain and rely
upon an opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
(b) Notwithstanding the provisions of Section 8.2, following the
occurrence and during the continuation of an Event of Default specified in
Section 5.1(a), 5.1(b), 5.1(d) or 5.1(e) which has resulted in an acceleration
of the Notes (or following the occurrence of any such event after an Event of
Default specified in Section 5.1(c) has occurred and the Trust has been
liquidated), if Indenture Trustee collects any money or property, it shall pay
out such money or property (and other amounts including amounts held on deposit
in the Reserve Account) held as Collateral for the benefit of the Noteholders,
net of liquidation costs associated with the sale of the Trust Estate, in the
following order:
FIRST: to Indenture Trustee for amounts due under Section 6.7 provided
that such amount shall not exceed $200,000 in the aggregate;
SECOND: to Servicer for due and unpaid Servicing Fees;
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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 Noteholdes of the Class A-1 Notes for amounts and unpaid on
the Class A-1 Notes for principal, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Class A-1
Notes for principal, until principal amount of the Outstanding Class A-1
Notes is reduced to zero;
FIFTH: to Noteholders of the Class A-2 Notes, Class A-3 Notes and
Class A-4 Notes, for amounts due and unpaid on the Class A-2 Notes, Class
A-3 Notes and Class A-4 Notes for principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class
A-2 Notes, Class A-3 Notes and Class A-4 Notes for principal, until the
principal amount of the Outstanding Class A-2 Notes, Class A-3 Notes and
Class A-4 Notes is reduced to zero;
SIXTH: to Noteholders of the Class B Notes for amounts due and unpaid
on the Class B Notes in respect of interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class
B Notes for interest;
SEVENTH: to Noteholders of the Class B Notes for amounts due and
unpaid on the Class B Notes for principal, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class
B Notes for principal, until the principal amount of the Outstanding Class
B Notes is reduced to zero;
EIGHTH: to Noteholders of the Class C Notes for amounts due and unpaid
on the Class C Notes in respect of interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Class
C Notes for interest;
NINTH: to Noteholders of the Class C Notes for amounts due and unpaid
on the Class C Notes for principal, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Class C Notes
for principal, until the principal amount of the Outstanding Class C Notes
is reduced to zero;
TENTH: to the Indenture Trustee, any amounts due under Section 6.7 not
paid pursuant to clause FIRST above; and
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ELEVENTH: to the Certificate Distribution Account, for distribution to
the Certificateholders.
Indenture Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 5.4. At least 15 days before such record
date, Issuer shall mail to each Noteholder and Indenture Trustee a notice that
states the record date, the payment date and, based on information provided by
the Servicer, the amount to be paid. The Indenture Trustee shall not be required
to determine any amount required to be paid pursuant to any of clauses SECOND to
NINTH or clause ELEVENTH above, except in its capacity (if any) as Successor
Servicer.
SECTION 5.5 Optional Preservation of the Receivables. If the Notes have
been declared to be due and payable under Section 5.2 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, Indenture Trustee may, but need not, elect to maintain possession of
the Trust Estate. It is the desire of the parties hereto and the Noteholders
that there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and Indenture Trustee shall take such desire into account
when determining whether or not to maintain possession of the Trust Estate. In
determining whether to maintain possession of the Trust Estate, Indenture
Trustee may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to Indenture
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding Amount of the
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;
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(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 Issuer, Indenture Trustee and the
Noteholders shall, subject to any determination in such Proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of Indenture Trustee and the Noteholders shall continue
as though no such Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise.
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The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of
Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to Indenture Trustee or to the Noteholders may be exercised from time to time,
and as often as may be deemed expedient, by Indenture Trustee or by the
Noteholders, as the case may be.
SECTION 5.11 Control by Controlling Note Class of Noteholders. The Holders
of a majority of the Outstanding Amount of the Controlling Note Class Notes
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to Indenture Trustee with respect to the
Notes or exercising any trust or power conferred on Indenture Trustee; provided
that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(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
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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 waiver, Issuer, Indenture Trustee and the
Holders of the Notes shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Note by such Holder's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes (or in the case of a right or remedy under this
Indenture which is instituted by the Controlling Note Class, more than 10% of
the Outstanding Amount of the Controlling Note Class) or (c) any suit instituted
by any Noteholder for the enforcement of the payment of principal of or interest
on any Note on or after the respective due dates expressed in such Note and in
this Indenture (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. Issuer covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
Issuer (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any
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power herein granted to Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 5.15 Action on Notes. Indenture Trustee's right to seek and recover
judgment on the Notes or under this Indenture shall not be affected by the
seeking, obtaining or application of any other relief under or with respect to
this Indenture. Neither the lien of this Indenture nor any rights or remedies of
Indenture Trustee or the Noteholders shall be impaired by the recovery of any
judgment by Indenture Trustee against Issuer or by the levy of any execution
under such judgment upon any portion of the Trust Estate or upon any of the
assets of Issuer. Any money or property collected by the Indenture Trustee shall
be applied in accordance with Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations. (a)
Promptly following a request from Indenture Trustee to do so and at
Administrator's expense, Issuer agrees to take all such lawful action as
Indenture Trustee may request to compel or secure the performance and observance
by Seller and Servicer, as applicable, of each of their obligations to Issuer
under or in connection with the Sale and Servicing Agreement or by the Seller or
AmSouth Bank, 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 Issuer under or in connection with the Sale and Servicing Agreement
and the Purchase Agreement, as the case may be, to the extent and in the manner
directed by Indenture Trustee, including the transmission of notices of default
on the part of Seller, Servicer or AmSouth Bank 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 AmSouth Bank, 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 Issuer against Seller or
Servicer under or in connection with the Sale and Servicing Agreement, or
against the Seller or AmSouth Bank under the Purchase Agreement, including the
right or power to take any action to compel or secure performance or observance
by Seller, Servicer or AmSouth Bank of each of their obligations to Issuer
thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the Sale and Servicing Agreement or any Purchase
Agreement, as applicable, and any right of Issuer to take such action shall be
suspended.
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ARTICLE VI INDENTURE TRUSTEE.
SECTION 6.1 Duties of Indenture Trustee. (a) If an Event of Default has
occurred and is continuing, of which a Responsible Officer of Indenture Trustee
has actual knowledge, Indenture Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) Indenture Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and the other Basic
Documents to which it is a party and no implied covenants or obligations
shall be read into this Indenture and the other Basic Documents against
Indenture Trustee; and
(ii) in the absence of bad faith on its part, Indenture Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
Indenture Trustee and conforming to the requirements of this Indenture and
the other Basic Documents; however, Indenture Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture and the other Basic Documents.
(c) Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) Indenture Trustee shall not be liable for any error of
judgment made in good faith 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 Issuer.
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(e) Money held in trust by Indenture Trustee need not be segregated from
other funds except to the extent required by law or the terms of this Indenture
or the Sale and Servicing Agreement.
(f) No provision of this Indenture or any other Basic Document shall
require Indenture Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder or
thereunder or in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not assured to it.
(g) Every provision of this Indenture and each other Basic Document
relating to the conduct or affecting the liability of or affording protection to
Indenture Trustee shall be subject to the provisions of this Section and to the
provisions of the TIA.
(h) Indenture Trustee shall take all actions required to be taken by the
Indenture Trustee under the Sale and Servicing Agreement.
SECTION 6.2 Rights of Indenture Trustee. (a) Indenture Trustee may
conclusively rely and shall be protected in acting or refraining from acting on
any document believed by it to be genuine and to have been signed or presented
by the proper person. Indenture Trustee need not investigate any fact or matter
stated in the document. The Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, note or other paper or document, but the Indenture Trustee, in its sole
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Indenture Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, Seller or the Servicer, personally or
by agent or attorney.
(b) Before Indenture Trustee acts or refrains from acting, it may require
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.
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(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, AmSouth Bank, or any other
such agent, attorney, custodian or nominee appointed with due care by it
hereunder. Indenture Trustee shall have no duty to monitor the performance of
Issuer.
(d) Indenture Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, that Indenture Trustee's conduct does not constitute wilful
misconduct, negligence or bad faith.
(e) Indenture Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture, the Notes
and the other Basic Documents shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder or under any other Basic Document in good faith and in accordance
with the advice or opinion of such counsel.
(f) Except in its capacity as Successor Servicer, the Indenture Trustee
shall not have any obligation or other duty to make, arrange or ensure the
completion of any recording, filing or registration of any instrument or other
document (including any UCC financing statements), or any amendments thereof or
supplements thereto, with respect to any Receivable or Financed Vehicle, or to
determine whether any such document, amendment or supplement is in suitable form
for any purpose, and shall not have any obligation or other duty with respect to
the payment of any fee, tax or other charge in connection therewith.
(g) Except in its capacity as Successor Servicer, the Indenture Trustee
shall not have any obligation to see to the payment or discharge of any lien
securing the Receivables, the application of any payment of interest or
principal in respect of any Receivable or the transfer or delivery of property
released from any such lien, or to make any demand or give any notice with
respect thereto.
(h) The Indenture Trustee shall not have any liability for the acts or
omissions of other parties that are not in accordance with the Basic Documents
and shall not be concerned with or accountable for the use or application of
monies deposited or withdrawn, or required to be deposited or withdrawn, to or
from any account by any other party or, to the extent directed to make any such
deposit or withdrawal by any such party, by the Indenture Trustee.
(i) Any request or direction of the Issuer shall be sufficiently evidenced
by an Issuer Request or Issuer Order.
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(j) The Indenture Trustee shall not be required to provide any surety or
bond of any kind in connection with the acceptance or performance of its duties
hereunder or under any other Basic Document.
(k) The Indenture Trustee shall not have any responsibility or liability
with respect to the legality, validity or enforceability of any Receivable or
the sufficiency of any agreement, instrument or other document evidencing or
otherwise related to any Receivable. The Indenture Trustee shall have no
obligation or other duty to inspect, review or otherwise examine any such
document (including any document in a Receivable File) for any purpose.
SECTION 6.3 Individual Rights of Indenture Trustee. Indenture Trustee in
its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with Issuer or its Affiliates with the same rights it
would have if it were not Indenture Trustee. Any 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 Issuer's use of the proceeds from the Notes, and shall not be
responsible for any statement or omission of Issuer in the Indenture or any
other Basic Document or in any document issued in connection with the sale of
the Notes or in the Notes other than Indenture Trustee's certificate of
authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing and
if it is either actually known or written notice of the existence thereof has
been delivered to a Responsible Officer of Indenture Trustee, Indenture Trustee
shall mail to each Noteholder notice of the Default within 90 days after such
knowledge or notice occurs. Except in the case of a Default in payment of
principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), Indenture Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of Noteholders.
The Indenture Trustee shall not be charged with knowledge of a Default, Event of
Default or Servicer Termination Event unless a Responsible Officer of the
Indenture Trustee has actual knowledge thereof or shall have received written
notice thereof.
SECTION 6.6 Reports by Indenture Trustee to Holders. Indenture Trustee
shall deliver to each Noteholder such information as may be reasonably required
to enable such Holder to prepare its Federal and state income tax returns.
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SECTION 6.7 Compensation and Indemnity. Issuer shall cause the
Administrator to pay to Indenture Trustee on the Closing Date and from time to
time reasonable compensation for its services (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,
Issuer shall cause Administrator to 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. Issuer shall cause the Administrator to
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.
Issuer's payment obligations to Indenture Trustee pursuant to this Section
and the Administration Agreement referenced in the preceding paragraph shall
survive the discharge of this Indenture subject to a satisfaction of the Rating
Agency Condition. When Indenture Trustee incurs expenses after the occurrence of
a Default specified in Section 5.1(d) or (e) with respect to Issuer, the
expenses are intended to constitute expenses of administration under Title 11 of
the United States Code or any other applicable Federal or state bankruptcy,
insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee. Indenture Trustee may resign
at any time by so notifying Issuer. 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.
Issuer 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
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(d) Indenture Trustee otherwise becomes incapable of acting.
If Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (Indenture Trustee in such event
being referred to herein as the retiring Indenture Trustee), Issuer shall
promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of Indenture Trustee under this Indenture subject to satisfaction of the Rating
Agency Condition. The successor Indenture Trustee shall mail a notice of its
succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the successor Indenture
Trustee.
If a successor Indenture Trustee does not take office within 30 days after
the retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, Issuer or the Holders of a majority in Outstanding Amount of the
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
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, Issuer'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
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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 have the full force which it is
anywhere in the Notes or in this Indenture provided that the certificate of
Indenture Trustee shall have.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee. (a) Notwithstanding any other provisions of this Indenture, at any
time, after delivering written notice to the Administrator, for the purpose of
meeting any legal requirement of any jurisdiction in which any part of Issuer
may at the time be located, Indenture Trustee shall have the power and may
execute and deliver all instruments to appoint one or more Persons to act as a
co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the Trust, and to vest in such Person or Persons, in such capacity
and for the benefit of the Noteholders, such title to the Trust, or any part
hereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon Indenture Trustee shall be conferred or imposed upon and exercised or
performed by Indenture Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not authorized to act separately without Indenture Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to
Issuer or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by
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such separate trustee or co-trustee, but solely at the direction of
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder, including acts or omissions
of predecessor or successor trustees; and
(iii) Indenture Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to Indenture Trustee shall
be deemed to have been given to each of the then separate trustees and co-
trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, Indenture Trustee. Every such instrument shall be filed with
Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute Indenture
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall invest in and be exercised by
Indenture Trustee, to the extent permitted by law, without the appointment of a
new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. (a) Indenture Trustee shall at
all times satisfy the requirements of TIA (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
Issuer 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
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Notes, the Class B Notes and/or the Class C Notes in accordance with Section 6.8
of this Indenture, and the Issuer shall appoint a successor Indenture Trustee
for two or all of such Classes, as applicable, so that there will be separate
Indenture Trustees for the Class A Notes, the Class B Notes and the Class C
Notes. In the event the Indenture Trustee fails to comply with the terms of the
preceding sentence, the Indenture Trustee shall comply with clauses (ii) and
(iii) of TIA Section 310(b).
(c) In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any Class of Notes pursuant to this Section 6.11,
Issuer, the retiring Indenture Trustee and the successor Indenture Trustee with
respect to such Class of Notes shall execute and deliver an indenture
supplemental hereto wherein each successor Indenture Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, the successor Indenture
Trustee all the rights, powers, trusts and duties of the retiring Indenture
Trustee with respect to the Notes of the Class to which the appointment of such
successor Indenture Trustee relates, (ii) if the retiring Indenture Trustee is
not retiring with respect to all Classes of Notes, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights powers,
trusts and duties of the retiring Indenture Trustee with respect to the Notes of
each Class as to which the retiring Indenture Trustee is not retiring shall
continue to be vested in the Indenture Trustee and (iii) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Indenture
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Indenture Trustees co-trustees of the same trust
and that each such Indenture Trustee shall be a trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Indenture Trustee; and upon the removal of the retiring Indenture
Trustee shall become effective to the extent provided herein.
SECTION 6.12 Preferential Collection of Claims Against Issuer. Indenture
Trustee shall comply with TIA (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 Issuer to Furnish Indenture Trustee Names and Addresses of
Noteholders. Issuer will furnish or cause to be furnished to Indenture Trustee
(a) not more than five days after the earlier of (i) each Record Date and (ii)
three months after the last Record Date, a list, in such form as Indenture
Trustee may reasonably require, of the names and addresses of the Holders as of
such Record Date, (b) at such other times as Indenture Trustee may request in
writing, within 30 days after receipt by Issuer of any such request, a list of
similar form and content as of a date
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not more than 10 days prior to the time such list is furnished; provided that so
long as (i) Indenture Trustee or its designee is Note Registrar, or (ii) the
Notes are Book-Entry Notes, no such list shall be required to be furnished and
in such case, upon the written request of Issuer or Owner Trustee, Indenture
Trustee or its designee will promptly furnish Owner Trustee a list of
Noteholders as of the date specified by Owner Trustee.
SECTION 7.2 Preservation of Information; Communications to Noteholders.
(a) Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders contained in the most recent
list furnished to Indenture Trustee as provided in Section 7.1 and the names and
addresses of Holders received by Indenture Trustee in its capacity as Note
Registrar. Indenture Trustee may destroy any list furnished to it as provided in
such Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA (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) Issuer, Indenture Trustee and Note Registrar shall have the protection
of TIA (S) 312(c).
SECTION 7.3 Reports by Issuer. Issuer shall:
(i) file with Indenture Trustee, at the time that Issuer is required
to file the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which Issuer may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with Indenture Trustee and the Commission in accordance
with rules and regulations prescribed from time to time by the Commission
such additional information, documents and reports with respect to
compliance by Issuer with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations; and
(iii) supply to Indenture Trustee (and Indenture Trustee shall
transmit by mail to all Noteholders described in TIA (S) 313(c)) such
summaries of any
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information, documents and reports required to be filed by Issuer pursuant
to clauses (i) and (ii) of this Section 7.3(a) as may be required by rules
and regulations prescribed from time to time by the Commission.
(b) Unless Issuer otherwise determines, the fiscal year of Issuer shall
end on December 31 of each year.
SECTION 7.4 Reports by Indenture Trustee. If required by TIA (S) 313(a),
within 60 days after each April 30, beginning with April 30, 2001, 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.
Issuer shall notify Indenture Trustee if and when the Notes are listed on any
stock exchange.
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES.
SECTION 8.1 Collection of Money. Except as otherwise expressly provided
herein, Indenture Trustee may demand payment or delivery of, and shall receive
and collect, directly and without intervention or assistance of any fiscal agent
or other intermediary, all money and other property payable to or receivable by
Indenture Trustee pursuant to this Indenture. Indenture Trustee shall apply all
such money received by it as provided in this Indenture. Except as otherwise
expressly provided in this Indenture, if any default occurs in the making of any
payment or performance under any agreement or instrument that is part of the
Trust Estate, Indenture Trustee may take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate proceedings. Any such action shall be without prejudice to any
right to claim a Default or Event of Default under this Indenture and any right
to proceed thereafter as provided in Article V.
SECTION 8.2 Trust Accounts. (a) On or prior to the Closing Date, Issuer
shall cause Servicer to establish, in the name of Indenture Trustee, for the
benefit of the Noteholders and the Certificateholders, the Trust Accounts as
provided in Section 5.1 of the Sale and Servicing Agreement.
(b) On or before each Distribution Date, the Issuer shall cause the Seller
and Servicer to deposit all Available Collections with respect to the Collection
Period preceding such Distribution 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
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Account and deposited to the Collection Account as provided therein, as to which
Issuer shall cause Servicer to timely provide the related instructions.
(c) On each Distribution Date, the Indenture Trustee (based on the
information contained in the Servicer's Report delivered on or before the
related Determination Date pursuant to Section 4.9 of the Sale and Servicing
Agreement) shall make the withdrawals from the Collection Account and make
deposits, distributions and payments, to the extent of funds on deposit in the
Collection Account with respect to the Collection Period preceding such
Distribution Date (including funds, if any, deposited therein from the Reserve
Account), in accordance with the provisions of Section 5.5(b) of the Sale and
Servicing Agreement (as to which Issuer shall cause Servicer to timely provide
the related instructions).
(i) On each Distribution 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 Distribution 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;
(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; and
(C) third, to the Noteholders of Class C Notes, the Accrued Class C Note
Interest; provided that if there are not sufficient funds available to
pay the entire amount of the Accrued Class C Note Interest, the
amounts available shall be applied to the payment of such interest on
the Class C Notes on a pro rata basis.
(d) On each Distribution 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
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respect to the Collection Period preceding such Distribution Date and make
distributions and payments in the following order of priority:
(i) first, to the Noteholders of the Class A-1 Notes in reduction of
principal until the principal amount of the Outstanding Class A-1
Notes has been paid in full; provided that if there are not
sufficient funds available to pay the principal amount of the
Outstanding Class A-1 Notes in full, the amounts available shall be
applied to the payment of principal on the Class A-1 Notes on a pro
rata basis;
(ii) second, to the Noteholders of the Class A-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;
(iii) 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;
(iv) 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 re 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;
(v) 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;
(vi) sixth, to the Noteholders of the Class C Notes in reduction of
principal until the principal amount of the Outstanding Class C
Notes has been paid in full; provided that if there are not
sufficient funds available to pay the principal amount of the
Outstanding Class C Notes in full, the amounts available shall be
applied to the payment of principal on the Class C Notes on a pro
rata basis;
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(vi) seventh, any remaining amounts, to the Certificate Distribution
Account.
SECTION 8.3 General Provisions Regarding Accounts. (a) The funds in the
Trust Accounts shall be invested in Eligible Investments in accordance with and
subject to Section 5.1(b) of the Sale and Servicing Agreement. Indenture Trustee
shall not be directed to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security interest
Granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to Indenture Trustee
to make any such investment or sale, if requested by Indenture Trustee, Issuer
shall deliver to Indenture Trustee an Opinion of Counsel, acceptable to
Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), Indenture Trustee shall not in any way be
held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any loss on any Eligible Investment included therein except for
losses attributable to Indenture Trustee's failure to make payments on such
Eligible Investments issued by Indenture Trustee, in its commercial capacity as
principal obligor and not as trustee, in accordance with their terms.
(c) If (i) investment directions shall not have been given for any funds
on deposit in the Trust Accounts to Indenture Trustee by 11:00 a.m. Eastern Time
(or such other time as may be agreed by Issuer, Servicer and Indenture Trustee)
on any Business Day; (ii) a Default or Event of Default shall have occurred and
be continuing with respect to the Notes but the Notes shall not have been
declared due and payable pursuant to Section 5.2, or (iii) if such Notes shall
have been declared due and payable following an Event of Default, amounts
collected or receivable from the Trust Estate are being applied in accordance
with Section 5.5 as if there had not been such a declaration; then Indenture
Trustee shall, to the fullest extent practicable, invest and reinvest funds in
the Trust Accounts in one or more Eligible Investments in accordance with the
standing instructions most recently given by the Servicer. Indenture Trustee
shall not be liable for losses in respect of such investments in Eligible
Investments that comply with the requirements of the Basic Documents.
SECTION 8.4 Release of Trust Estate. (a) Subject to the payment of its
fees and expenses pursuant to Section 6.7, Indenture Trustee may, and when
required by the provisions of this Indenture shall, execute instruments to
release property from the lien of this Indenture or any other Basic Document, or
convey Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture or
such other document. No party relying upon an instrument executed by Indenture
Trustee as provided in this Article VIII shall be bound to ascertain Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any moneys.
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(b) Indenture Trustee shall, at such time as there are no Notes
outstanding and all sums due Indenture Trustee pursuant to Section 6.7 have been
paid, release any remaining portion of the Trust Estate that secured the Notes
from the lien of this Indenture and release to Issuer or any other Person
entitled thereto any funds then on deposit in the Trust Accounts. Indenture
Trustee shall release property from the lien of this Indenture pursuant to this
Section 8.4(b) only upon receipt of an Issuer Request accompanied by an
Officer's Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA (S)(S) 314(c) and 314(d)(1)
meeting the applicable requirements of Section 11.1.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, acknowledges that from time to
time the Indenture Trustee shall release the lien of this Indenture on any
Receivable to be sold to (i) Seller in accordance with Section 3.3 of the Sale
and Servicing Agreement, (ii) to Servicer in accordance with Section 4.7 of the
Sale and Servicing Agreement and (iii) to AmSouth Bank pursuant to Section 3.4
of the Purchase Agreement.
SECTION 8.5 Opinion of Counsel. Indenture Trustee shall receive at least
seven days' notice when requested by Issuer to take any action pursuant to
Section 8.4(a), accompanied by copies of any instruments involved, and Indenture
Trustee may also require as a condition to such action, an Opinion of Counsel,
in form and substance satisfactory to Indenture Trustee, stating the legal
effect of any such action, outlining the steps required to complete the same,
and concluding that all conditions precedent to the taking of such action have
been complied with and such action will not materially and adversely impair the
security for the Notes or the rights of the Noteholders in contravention of the
provisions of this Indenture; provided that such Opinion of Counsel shall not be
required to express an opinion as to the fair value of the Trust Estate. Counsel
rendering any such opinion may rely, without independent investigation, on the
accuracy and validity of any certificate or other instrument delivered to
Indenture Trustee in connection with any such action.
ARTICLE IX SUPPLEMENTAL INDENTURES.
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.
Without the consent of the Holders of any Notes but with prior written notice to
the Rating Agencies by Issuer, as evidenced to Indenture Trustee, Issuer and
Indenture Trustee, when authorized by an Issuer Order, at any time and from time
to time, may enter into one or more indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as in force at the date of
the execution thereof), in form satisfactory to Indenture Trustee, for any of
the following purposes:
(i) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto Indenture Trustee any property subject or required to be
subjected to the
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lien of this Indenture, or to subject to the lien of this Indenture
additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to Issuer, and the assumption by any
such successor of the covenants of Issuer herein and in the Notes
contained;
(iii) to add to the covenants of Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein conferred
upon Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any
other provision herein or in any supplemental indenture or to make any
other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; provided that such action shall
not materially and adversely affect the interests of the Holders of the
Notes;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI;
(vii) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the TIA or under any similar federal statute hereafter
enacted and to add to this Indenture such other provisions as may be
expressly required by the TIA; or
(viii) (A) to add, modify or eliminate such provisions of the
Indenture as may be necessary or advisable in order to enable all or a
portion of Issuer to qualify as, and to permit an election to be made to
cause all or a portion of Issuer to be treated as, a "financial asset
securitization investment trust" under the Code, and (B) in connection with
any such election, to modify or eliminate existing provisions set forth in
this Indenture relating to the intended federal income tax treatment of the
Notes or Certificates and Issuer in the absence of the election; it being a
condition to any such amendment that the Rating Agency Condition shall have
been satisfied; and
(ix) to add, modify or eliminate such provisions as may be necessary
or advisable in order to enable (a) the transfer to Issuer of all or any
portion
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of the Receivables to be recognized as a sale under GAAP by Seller to
Issuer, (b) Issuer to avoid becoming a member of Seller's consolidated
group under GAAP or (c) the Seller, AmSouth Bank or any of other Affiliates
to otherwise comply with or obtain more favorable treatment under any law
or regulation or any accounting rule or principle; it being a condition to
any such amendment that the Rating Agency Condition shall have been
satisfied.
Indenture Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
Issuer and Indenture Trustee, when authorized by an Issuer Order, may, also
without the consent of any of the Holders of the Notes but with prior written
notice to the Rating Agencies by Issuer, as evidenced to Indenture Trustee,
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided that such action shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Noteholder.
SECTION 9.2 Supplemental Indentures with Consent of Noteholders. Issuer
and Indenture Trustee, when authorized by an Issuer Order, also may, with prior
notice to the Rating Agencies and with the consent of the Holders of not less
than a majority of the Outstanding Amount of the Notes, by Act of such Holders
delivered to Issuer and Indenture Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(i) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest
rate thereon or the Redemption Price with respect thereto, change the
provision of this Indenture relating to the application of collections on,
or the proceeds of the sale of, the Trust Estate to payment of principal of
or interest on the Notes, or change any place of payment where, or the coin
or currency in which, any Note or the interest thereon is payable, or
impair the 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);
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(ii) reduce the percentage of the Outstanding Amount of the Notes or
the Controlling Note Class, the consent of the Holders of which is required
for any such supplemental indenture, or the consent of the Holders of which
is required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided for
in this Indenture;
(iii) modify or alter (x) the provisions of the proviso as to the
definition of the term "Outstanding" or (y) the definition of "Controlling
Note Class";
(iv) reduce the percentage of the Outstanding Amount of the Notes or
Controlling Note Class required to direct Indenture Trustee to direct
Issuer to sell or liquidate the Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified or
waived without the consent of the Holder of each Outstanding Note affected
thereby;
(vi) modify any of the provisions of this Indenture in such manner as
to affect the calculation of the amount of any payment of interest or
principal due on any Note on any Distribution Date (including the
calculation of any of the individual components of such calculation) or to
affect the rights of the Holders of Notes to the benefit of any provisions
for the mandatory redemption of the Notes contained herein; or
(vii) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Trust
Estate or, except as otherwise permitted or contemplated herein 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.
It shall not be necessary for any Act of Noteholders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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Promptly after the execution by Issuer and Indenture Trustee of any
supplemental indenture pursuant to this Section, Indenture Trustee shall mail to
the Holders of the Notes to which such amendment or supplemental indenture
relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of Indenture Trustee to 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 the
additional trusts created by, any supplemental indenture permitted by this
Article IX or the modifications thereby of the trusts created by this Indenture,
Indenture Trustee shall be entitled to receive, and subject to Sections 6.1 and
6.2, shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. Indenture Trustee may, but shall not be obligated to, enter into
any such supplemental indenture that affects Indenture Trustee's own rights,
duties, liabilities or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of
Indenture Trustee, Issuer and the Holders of the Notes shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity With Trust Indenture Act. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in effect
so long as this Indenture shall then be qualified under the Trust Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by Indenture Trustee shall,
bear a notation furnished by Issuer as to any matter provided for in such
supplemental indenture. If Issuer shall so determine, new Notes so modified as
to conform, in the opinion of Issuer, to any such supplemental indenture may be
prepared and executed by Issuer and authenticated and delivered by Indenture
Trustee in exchange for Outstanding Notes.
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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 Distribution Date on which Servicer
exercises its option to purchase the Trust Estate pursuant to said Section
9.1(a), for a purchase price equal to the Redemption Price; provided that Issuer
has available funds sufficient to pay the Redemption Price. Servicer or Issuer
shall furnish the Rating Agencies notice of such redemption. If the Notes are to
be redeemed pursuant to this Section 10.1(a), Servicer or Issuer shall furnish
notice of such election to Indenture Trustee not later than 25 days prior to the
Redemption Date and Issuer shall deposit with Indenture Trustee in the Note
Distribution Account the Redemption Price of the Notes to be redeemed whereupon
all such Notes shall be due and payable on the Redemption Date upon the
furnishing of a notice complying with Section 10.2 to each Holder of the Notes.
SECTION 10.2 Form of Redemption Notice. (a) Notice of redemption under
Section 10.1(a) shall be given by Indenture Trustee by facsimile or by first-
class mail, postage prepaid, transmitted or mailed prior to the applicable
Redemption Date to each Holder of Notes, as of the close of business on the
Record Date preceding the applicable Redemption Date, at such Holder's address
appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such
Redemption Date is not applicable and that payments shall be made only
upon presentation and surrender of such Notes and the place where such
Notes are to be surrendered for payment of the Redemption Price (which
shall be the office or agency of Issuer to be maintained as provided
in Section 3.2); and
(iv) that interest on the Notes shall cease to accrue on the
Redemption Date.
Notice of redemption of the Notes shall be given by Indenture Trustee in
the name and at the expense of Issuer. Failure to give notice of redemption, or
any defect therein, to any Holder of any Note shall not impair or affect the
validity of the redemption of such Note.
2000-1 Indenture
56
(b) Prior notice of redemption under Section 10.1(b) is not required to be
given to Noteholders.
SECTION 10.3 Notes Payable on Redemption Date. The Notes to be redeemed
shall, following notice of redemption as required by Section 10.2 (in the case
of redemption pursuant to Section 10.1(a)), on the Redemption Date become due
and payable at the Redemption Price and (unless Issuer shall default in the
payment of the Redemption Price) no interest shall accrue on the Redemption
Price for any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Price.
ARTICLE XI MISCELLANEOUS.
SECTION 11.1 Compliance Certificates and Opinions, etc. (a) Upon any
application or request by Issuer to Indenture Trustee to take any action under
any provision of this Indenture, Issuer shall furnish to Indenture Trustee (i)
an Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with,
(ii) an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with and (iii) (if required by
the TIA) an Independent Certificate from a firm of certified public accountants
meeting the applicable requirements of this Section, except that, in the case of
any such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory
such condition or covenant has been complied with.
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57
(b) (i) Prior to the deposit of any Collateral or other property or
securities with Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this
Indenture, Issuer shall, in addition to any obligation imposed in Section
11.1(a) or elsewhere in this Indenture, furnish to Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within 90 days of such
deposit) to Issuer of the Collateral or other property or securities to be
so deposited.
(ii) Whenever Issuer is required to furnish to Indenture Trustee an
Officer's Certificate certifying or stating the opinion of any signer
thereof as to the matters described in clause (i), Issuer shall also
deliver to Indenture Trustee an Independent Certificate as to the same
matters, if the fair value to Issuer of the securities to be so deposited
and of all other such securities made the basis of any such withdrawal or
release since the commencement of the then-current fiscal year of Issuer,
as set forth in the certificates delivered pursuant to clause (i) and this
clause (ii), is 10% or more of the Outstanding Amount of the Notes, but
such a certificate need not be furnished with respect to any securities so
deposited, if the fair value thereof to Issuer as set forth in the related
Officer's Certificate is less than $25,000 or less than one percent of the
Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Purchased
Receivables or Defaulted Receivables, whenever any property or securities
are to be released from the lien of this Indenture, Issuer shall also
furnish to Indenture Trustee an Officer's Certificate certifying or stating
the opinion of each person signing such certificate as to the fair value
(within 90 days of such release) of the property or securities proposed to
be released and stating that in the opinion of such person the proposed
release will not impair the security under this Indenture in contravention
of the provisions hereof.
(iv) Whenever Issuer is required to furnish to Indenture Trustee an
Officer's Certificate certifying or stating the opinion of any signer
thereof as to the matters described in clause (iii), Issuer shall also
furnish to Indenture Trustee an Independent Certificate as to the same
matters if the fair value of the property or securities and of all other
property other than Purchased Receivables and Defaulted Receivables, or
securities released from the lien of this Indenture since the commencement
of the then current calendar year, as set forth in the certificates
required by clause (iii) and this clause (iv), equals 10% or more of the
Outstanding Amount of the Notes, but such certificate need not be furnished
in the case of any release of property or securities if the fair value
thereof as set forth in the related Officer's Certificate is less than
$25,000 or less than one percent of the then Outstanding Amount of the
Notes.
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(v) Notwithstanding Section 2.9 or any other provision of this
Section, Issuer may without compliance with the requirements of the other
provisions of this section 11.1, (A) collect, liquidate, sell or otherwise
dispose of Receivables as and to the extent permitted or required by the
Basic Documents and (B) make cash payments out of the Trust Accounts as and
to the extent permitted or required by the Basic Documents.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee. 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 Issuer 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 Issuer, stating that the information with respect to such
factual matters is in the possession of Servicer, Seller, Administrator or
Issuer, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with
respect to such matters are erroneous.
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 Issuer
shall deliver any document as a condition of the granting of such
application, or as evidence of Issuer's compliance with any term hereof, it
is intended that the truth and accuracy, at the time of the granting of
such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall
in such case be conditions precedent to the right of Issuer to have such
application granted or to the sufficiency of such certificate or report.
The foregoing shall not, however, be construed to affect Indenture
Trustee's right to rely upon the truth and accuracy of any statement or
opinion contained in any such document as provided in Article VI.
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59
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 Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1) conclusive in
favor of Indenture Trustee and Issuer, if made in the manner provided in this
Section.
(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 Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to or filed with:
(a) Indenture Trustee by any Noteholder, Administrator or Issuer shall be
sufficient for every purpose hereunder if personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested and shall
be deemed to have been duly given upon receipt to Indenture Trustee at its
Corporate Trust Office, or
(b) Issuer by Indenture Trustee or by any Noteholder shall be sufficient
for every purpose hereunder if personally delivered, delivered by overnight
courier or mailed certified mail, return receipt requested and shall be deemed
to have been duly given upon receipt to Issuer addressed to: AmSouth Auto Trust
2000-1, in care of 0000 0/xx/ Xxxxxx Xxxxx XxXxxxx/XXXXX Xxxxx, Xxxxxxxxxx,
Xxxxxxx, 00000, with a copy to Administrator at Xxxxx Xxxxxx Xxxxx XxXxxxx/XXXXX
Xxxxx, Xxxxxxxxxx, Xxxxxxx, 00000, Attention: Xxxxx Xxxxx, or at any other
address
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60
previously furnished in writing to Indenture Trustee by Issuer or Administrator.
Issuer shall promptly transmit any notice received by it from the Noteholders to
Indenture Trustee.
Notices required to be given to the Rating Agencies by Issuer, Indenture
Trustee or Owner Trustee shall be in writing, personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested to (i) in
the case of Moody's, at the following address: Xxxxx'x Investors Service, Inc.,
00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (ii) in the case of S&P, at the
following address: Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000-0000, Attention of Asset Backed Surveillance Department; or
as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 11.5 Notices to Noteholders; Waiver. 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 manner of giving such
notice as shall be satisfactory to Issuer 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, Issuer may
enter
2000-1 Indenture
61
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. Issuer will furnish to the trustee a copy of each such agreement and
Indenture Trustee will cause payments to be made and notices to be given in
accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and agreements in this
Indenture and the Notes by Issuer shall bind its successors and assigns, whether
so expressed or not. All agreements of Indenture Trustee in this Indenture shall
bind its successors.
SECTION 11.10 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 Business Day with the same force and
effect
2000-1 Indenture
62
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 Issuer 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 Issuer, 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 Issuer, (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 Issuer, 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 Issuer
hereunder, Owner Trustee shall be subject to, and entitled to the benefits of,
the terms and provisions of Article VI, VII and VIII of the Trust Agreement.
(b) In furtherance of and not in derogation of the foregoing, to the extent
Seller enters into other securitization transactions, each Noteholder, by
accepting a
2000-1 Indenture
63
Note, acknowledges and agrees that it shall have no right, title or interest in
or to any assets or interests therein of Seller (other than the Trust Property
and Reserve Account relating to this transaction) conveyed or purported to be
conveyed by Seller to another securitization trust or other Person or Persons in
connection therewith (whether by way of a sale, capital contribution or by
virtue of the granting of a lien) ("Other Assets"). To the extent that,
notwithstanding the agreements and provisions contained in the preceding
sentences of this Section, a Noteholder either (i) asserts an interest or claim
to, or benefit from, Other Assets, whether asserted against or through Seller or
any other Person owned by Seller, or (ii) is deemed to have any such interest,
claim or benefit in or from Other Assets, whether by operation of law, legal
process, pursuant to applicable provisions of insolvency laws or otherwise
(including by virtue of Section 1111(b) of the Federal Bankruptcy Code or any
successor provision having similar effect under the Bankruptcy Code), and
whether deemed asserted against or through Seller or any other Person owned by
Seller, then each Noteholder, by accepting a Note, further acknowledges and
agrees that any such interest, claim or benefit in or from Other Assets is and
shall be expressly subordinated to the indefeasible payment in full of all
obligations and liabilities of Seller which, under the terms of the relevant
documents relating to the securitization of such Other Assets, are entitled to
be paid from, entitled to the benefits of, or otherwise secured by such Other
Assets (whether or not any such entitlement or security interest is legally
perfected or otherwise entitled to priority of distribution or application under
applicable law, including insolvency laws, and whether asserted against Seller
or any other Person owned by Seller), including the payment of post-petition
interest on such other obligations and liabilities. This subordination agreement
shall be deemed a subordination agreement within the meaning of Section 510(a)
of the Bankruptcy Code. Each Noteholder, by acceptance of a Note, further
acknowledges and agrees that no adequate remedy at law exists for a breach of
this Section 11.16(b) and the terms of this Section 11.16(b) may be enforced by
an action for specific performance. The provisions of this Section 11.16(b)
shall be for the third party benefit of those entitled to rely thereon and shall
survive the termination of this Agreement.
SECTION 11.17 No Petition. Indenture Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they will not at any time institute against Seller or Issuer, or join in
any institution against Seller or Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, this Indenture or any of the Basic
Documents.
SECTION 11.18 Inspection. Issuer agrees that, on reasonable prior notice,
it will permit any representative of Indenture Trustee, during Issuer's normal
business hours, to examine all the books of account, records, reports, and other
papers of Issuer, to make copies and extracts therefrom, to cause such books to
be
2000-1 Indenture
64
audited by Independent certified public accountants, and to discuss Issuer's
affairs, finances and accounts with Issuer's officers, employees, and
independent certified public accountants, all at such reasonable times and as
often as may be reasonably requested. Indenture Trustee shall and shall cause
its representatives to hold in confidence all such information except to the
extent disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that Indenture
Trustee may reasonably determine that such disclosure is consistent with its
obligations hereunder.
SECTION 11.19 Confidential Information. Any Holder, by its acceptance of a
Note, shall be deemed to have agreed to keep any information obtained by it
pursuant to Section 4.12 of the Sale and Servicing Agreement confidential and
not to use such information for any other purpose, except as required by
applicable law.
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65
IN WITNESS WHEREOF, Issuer and Indenture Trustee have caused this Indenture
to be duly executed by their respective officers, thereunto duly authorized, all
as of the day and year first above written.
AMSOUTH AUTO TRUST 2000-1
By: THE CHASE MANHATTAN BANK, not in
its individual capacity but solely
as Owner Trustee,
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
THE BANK OF NEW YORK TRUST COMPANY OF
FLORIDA, NATIONAL ASSOCIATION
not in its individual capacity
but solely as Indenture Trustee,
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
2000-1 Indenture
D-1
EXHIBIT A-1
FORM OF CLASS A-1 NOTE
REGISTERED $230,000,000
Xx. X-0 XXXXX XX. 00000XXX0
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.
AMSOUTH AUTO TRUST 2000-1
6.745% CLASS A-1 ASSET BACKED NOTES
AmSouth Auto Trust 2000-1, a trust existing under the laws of the State of
New York (herein referred to as the "Issuer"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of TWO
HUNDRED THIRTY MILLION DOLLARS ($230,000,000) payable on each Distribution Date
in an amount equal to the aggregate amount, if any, payable to Noteholders of
Class A-1 Notes on such Distribution 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 1, 2000 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), between the
Issuer and The Bank of New York Trust Company of Florida, National Association,
a national banking association, as Indenture Trustee (in such capacity the
"Indenture Trustee"); provided, however, that the entire unpaid principal amount
of this Note shall be due and payable on the November 15, 2001 Distribution Date
(the "Class A-1 Final Scheduled Distribution Date"). Capitalized terms used but
not defined herein are defined in Article I of the Indenture, which also
contains rules as to construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Distribution Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Distribution Date (after giving effect
1
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 previous
Distribution Date on which interest has been paid (or, in the case of the
initial Distribution Date, from the Closing Date) to but excluding such
Distribution Date. Interest will be computed on the basis of actual days elapsed
and a 360-day year. Such principal of and interest on this Note shall be paid in
the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: October 19, 2000
AMSOUTH AUTO TRUST 2000-1
By: THE CHASE MANHATTAN BANK, not
in its individual capacity but solely as
Owner Trustee of AmSouth Auto Trust 2000-1
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 19, 0000
XXX XXXX XX XXX XXXX, not in its individual
capacity but solely as Authenticating Agent
By:
----------------------------------
Authorized Officer
3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 6.745% Class A-1 Asset Backed Notes (the "Class A-1 Notes")
which, together with the Issuer's 6.700% Class A-2 Asset Backed Notes (the
"Class A-2 Notes"), 6.670% Class A-3 Asset Backed Notes (the "Class A-3 Notes"),
6.760% 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"), 7.080% Class B Asset Backed Notes (the "Class B Notes") and 7.440%
Class C Asset Backed Notes (the "Class C Notes" and, together with the Class A
Notes and the Class B Notes, the "Notes"), are issued under the Indenture, to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Noteholders. The Notes are subject to all
terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-1 Notes are senior in right of payment to the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes, each as and
to the extent provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each Distribution Date
in an amount described on the face hereof. "Distribution Date" means the
fifteenth day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2000. 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 Distribution
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 Issuer (and to the Indenture Trustee if
given by Noteholders), and upon any such declaration the unpaid principal amount
of such Notes, together with accrued and unpaid interest thereon through the
date of acceleration, shall become immediately due and payable in the manner
provided in Section 5.2 of the Indenture. In such event, all payments on the
Class A-1 Notes will be made in accordance with the provisions of the Indenture.
Payments of interest on this Note on each Distribution 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
4
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 Distribution Date or on the
Final Scheduled Distribution 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
Distribution Date on which Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be mailed
or transmitted by facsimile prior to such final Distribution 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.
Payments of interest on this Note on each Distribution 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 Distribution Date or on the Final Scheduled Distribution 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 Distribution
5
Date on which Issuer expects that the final installment of principal of and
interest on such Note will be paid. Such notice shall be mailed or transmitted
by facsimile prior to such final Distribution Date and shall specify that such
final installment will be payable only upon presentation and surrender of such
Note and shall specify the place where such Note may be presented and
surrendered for payment of such installment. Notices in connection with
redemptions of Notes shall be mailed to Noteholders as provided in Section 10.2
of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class A-1 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes and the
Class C Notes may be redeemed, in whole but not in part, in the manner and to
the extent described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer,
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in
6
the Basic Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property 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 Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
7
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of the Outstanding Amount or of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
8
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 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.
10
EXHIBIT A-2
FORM OF CLASS A-2 NOTE
REGISTERED $240,000,000
Xx. X-0 XXXXX XX. 00000XXX0
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.
AMSOUTH AUTO TRUST 2000-1
6.700 % CLASS A-2 ASSET BACKED NOTES
AmSouth Auto Trust 2000-1, a trust existing under the laws of the State of
New York (herein referred to as the "Issuer"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of TWO
HUNDRED FORTY MILLION DOLLARS ($240,000,000) payable on each Distribution Date
in an amount equal to the aggregate amount, if any, payable to Noteholders of
Class A-2 Notes on such Distribution 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 1, 2000 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), between the
Issuer and The Bank of New York Trust Company of Florida, National Association,
a national banking association, as Indenture Trustee (in such capacity the
"Indenture Trustee"); provided, however, that the entire unpaid principal amount
of this Note shall be due and payable on the February 17, 2003 Distribution Date
(the "Class A-2 Final Scheduled Distribution Date"). Capitalized terms used but
not defined herein are defined in Article I of the Indenture, which also
contains rules as to construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Distribution Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Distribution Date (after giving effect
to all payments of principal made on the preceding Distribution Date), subject
to certain limitations contained in Section 3.1 of the Indenture. Interest on
this Note will accrue for each Distribution Date from and including the
fifteenth day of the calendar month immediately preceding such Distribution Date
(or, in the case of the initial Distribution Date, from the Closing Date) to but
excluding the fifteenth day of the following calendar month. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: October 19, 2000
AMSOUTH AUTO TRUST 2000-1
By: THE CHASE MANHATTAN BANK, not
in its individual capacity but solely
as Owner Trustee of AmSouth Auto
Trust 2000-1
By: __________________________________
Authorized Officer
3
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Notes designated above and referred to in the
within-mentioned Indenture.
Date: October 19, 0000
XXX XXXX XX XXX XXXX, not in its individual
capacity but solely as Authenticating Agent
By: __________________________________
Authorized Officer
4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 6.700% Class A-2 Asset Backed Notes (the "Class A-2 Notes")
which, together with the Issuer's 6.745% Class A-1 Asset Backed Notes (the
"Class A-1 Notes"), 6.670% Class A-3 Asset Backed Notes (the "Class A-3 Notes")
and 6.760% 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"), 7.080% Class B Asset Backed Notes (the "Class B Notes") and
7.440% Class C Asset Backed Notes (the "Class C Notes" and, together with the
Class A Notes and the Class B Notes, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Notes
are subject to all terms of the Indenture.
The Class A-2 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-2 Notes are subordinated in right of payment to the Class A-1 Notes and are
senior in right of payment to the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes and the Class C Notes, each as and to the extent provided in the
Indenture.
Principal of the Class A-2 Notes will be payable on each Distribution Date
in an amount described on the face hereof. "Distribution Date" means the
fifteenth day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2000. 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 Distribution
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 Issuer (and to the Indenture Trustee if
given by Noteholders), and upon any such declaration the unpaid principal amount
of such Notes, together with accrued and unpaid interest thereon through the
date of acceleration, shall become immediately due and payable in the manner
provided in Section 5.2 of the Indenture. In such event, all payments on the
Class A-2 Notes will be made in accordance with the provisions of the Indenture.
Payments of interest on this Note on each Distribution 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
5
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 Distribution Date or on the
Final Scheduled Distribution 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
Distribution Date on which Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be mailed
or transmitted by facsimile prior to such final Distribution Date and shall
specify that such final installment will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment. Notices in connection
with redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class A-2 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes and the
Class C Notes may be redeemed, in whole but not in part, in the manner and to
the extent described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
6
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer,
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property 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
7
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 Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of the Outstanding Amount or of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
8
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 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.
10
EXHIBIT A-3
FORM OF CLASS A-3 NOTE
REGISTERED $315,000,000
No. R-1 CUSIP NO. 00000XXX0
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.
AMSOUTH AUTO TRUST 2000-1
6.670% CLASS A-3 ASSET BACKED NOTES
AmSouth Auto Trust 2000-1, a trust existing under the laws of the State of
New York (herein referred to as the "Issuer"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of THREE
HUNDRED FIFTEEN MILLION DOLLARS ($315,000,000) payable on each Distribution Date
in an amount equal to the aggregate amount, if any, payable to Noteholders of
Class A-3 Notes on such Distribution 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 1, 2000 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), between the
Issuer and The Bank of New York Trust Company of Florida, National Association,
a national banking association, as Indenture Trustee (in such capacity the
"Indenture Trustee"); provided, however, that the entire unpaid principal amount
of this Note shall be due and payable on the July 15, 2004 Distribution Date
(the "Class A-3 Final Scheduled Distribution Date"). Capitalized terms used but
not defined herein are defined in Article I of the Indenture, which also
contains rules as to construction that shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Distribution Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date), subject to certain
1
limitations contained in Section 3.1 of the Indenture. Interest on this Note
will accrue for each Distribution Date from and including the fifteenth day of
the calendar month immediately preceding such Distribution Date (or, in the case
of the initial Distribution Date, from the Closing Date) to but excluding the
fifteenth day of the following calendar month. Interest will be computed on the
basis of a 360-day year of twelve 30-day months. Such principal of and interest
on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: October 19, 2000
AMSOUTH AUTO TRUST 2000-1
By: THE CHASE MANHATTAN BANK, not in
its individual capacity but solely
as Owner Trustee of AmSouth Auto
Trust 2000-1
By:
----------------------------------
Authorized Officer
3
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Notes designated above and referred to in the
within-mentioned Indenture.
Date: October 19, 0000
XXX XXXX XX XXX XXXX, not in its
individual capacity but solely as
Authenticating Agent
By:
----------------------------------
Authorized Officer
4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 6.670% Class A-3 Asset Backed Notes (the "Class A-3 Notes")
which, together with the Issuer's 6.745% Class A-1 Asset Backed Notes (the
"Class A-1 Notes"), 6.700% Class A-2 Asset Backed Notes (the "Class A-2 Notes"),
6.760% 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"), 7.080% Class B Asset Backed Notes (the "Class B Notes") and 7.440%
Class C Asset Backed Notes (the "Class C Notes" and, together with the Class A
Notes and the Class B Notes, the "Notes"), are issued under the Indenture, to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Noteholders. The Notes are subject to all
terms of the Indenture.
The Class A-3 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-3 Notes are subordinated in right of payment to the Class A-1 Notes and the
Class A-2 Notes and are senior in right of payment to the Class A-4 Notes, the
Class B Notes and the Class C Notes, each as and to the extent provided in the
Indenture.
Principal of the Class A-3 Notes will be payable on each Distribution Date
in an amount described on the face hereof. "Distribution Date" means the
fifteenth day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2000. 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 Distribution
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 Issuer (and to the Indenture Trustee if
given by Noteholders), and upon any such declaration the unpaid principal amount
of such Notes, together with accrued and unpaid interest thereon through the
date of acceleration, shall become immediately due and payable in the manner
provided in Section 5.2 of the Indenture. In such event, all payments on the
Class A-3 Notes will be made in accordance with the provisions of the Indenture.
Payments of interest on this Note on each Distribution 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
5
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 Distribution Date or on the
Final Scheduled Distribution 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
Distribution Date on which Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be mailed
or transmitted by facsimile prior to such final Distribution Date and shall
specify that such final installment will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment. Notices in connection
with redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class A-3 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes and the
Class C Notes may be redeemed, in whole but not in part, in the manner and to
the extent described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
6
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer,
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property 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
7
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 Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more Supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of the Outstanding Amount or of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
8
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 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.
10
EXHIBIT A-4
FORM OF CLASS A - 4 NOTE
REGISTERED $103,640,000
Xx. X-0 XXXXX XX. 00000XXX0
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.
AMSOUTH AUTO TRUST 2000-1
6.760% CLASS A-4 ASSET BACKED NOTES
AmSouth Auto Trust 2000-1, a trust existing under the laws of the State of New
York (herein referred to as the "Issuer"), for value received, hereby promises
to pay to CEDE & CO., or registered assigns, the principal sum of ONE HUNDRED
THREE MILLION SIX HUNDRED FORTY THOUSAND DOLLARS ($103,640,000) payable on each
Distribution Date in an amount equal to the aggregate amount, if any, payable to
Noteholders of Class A-4 Notes on such Distribution 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 1, 2000 (as from time to time
amended, supplemented or otherwise modified and in effect, the "Indenture"),
between the Issuer and The Bank of New York Trust Company of Florida, National
Association, a national banking association, as Indenture Trustee (in such
capacity the "Indenture Trustee"); provided, however, that the entire unpaid
principal amount of this Note shall be due and payable on the February 15, 2005
Distribution Date (the "Class A-4 Final Scheduled Distribution Date").
Capitalized terms used but not defined herein are defined in Article I of the
Indenture, which also contains rules as to construction that shall be applicable
herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Distribution Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Distribution Date (after giving effect
1
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
fifteenth day of the calendar month immediately preceding such Distribution Date
(or, in the case of the initial Distribution Date, from the Closing Date) to but
excluding the fifteenth day of the following calendar month. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: October 19, 2000
AMSOUTH AUTO TRUST 2000-1
By: THE CHASE MANHATTAN BANK, not
in its individual capacity but solely
as Owner Trustee of AmSouth Auto
Trust 2000-1
By: _______________________________
Authorized Officer
3
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Notes designated above and referred to in the
within-mentioned Indenture.
Date: October 19, 0000
XXX XXXX XX XXX XXXX, not in its individual
capacity but solely as Authenticating Agent
By: __________________________________
Authorized Officer
4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 6.760% Class A-4 Asset Backed Notes (the "Class A-4 Notes")
which, together with the Issuer's 6.745% Class A-1 Asset Backed Notes (the
"Class A-1 Notes"), 6.700% Class A-2 Asset Backed Notes (the "Class A-2 Notes"),
6.670% 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"), 7.080% Class B Asset Backed Notes (the "Class B Notes") and 7.440%
Class C Asset Backed Notes (the "Class C Notes" and, together with the Class A
Notes and the Class B Notes, the "Notes"), are issued under the Indenture, to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Noteholders. The Notes are subject to all
terms of the Indenture.
The Class A-4 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-4 Notes are subordinated in right of payment to the Class A-1 Notes, the Class
A-2 Notes and the Class A-3 Notes and are senior in right of payment to the
Class B Notes and the Class C Notes, each as and to the extent provided in the
Indenture.
Principal of the Class A-4 Notes will be payable on each Distribution Date
in an amount described on the face hereof. "Distribution Date" means the
fifteenth day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2000. 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 Distribution
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 Issuer (and to the Indenture Trustee if
given by Noteholders), and upon any such declaration the unpaid principal amount
of such Notes, together with accrued and unpaid interest thereon through the
date of acceleration, shall become immediately due and payable in the manner
provided in Section 5.2 of the Indenture. In such event, all payments on the
Class A-1 Notes will be made in accordance with the provisions of the Indenture.
Payments of interest on this Note on each Distribution 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
5
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 Distribution Date or on the
Final Scheduled Distribution 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
Distribution Date on which Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be mailed
or transmitted by facsimile prior to such final Distribution Date and shall
specify that such final installment will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment. Notices in connection
with redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class A-4 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes and the
Class C Notes may be redeemed, in whole but not in part, in the manner and to
the extent described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
6
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer,
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property 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
7
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 Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of Outstanding Amount or of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
8
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
THE NOTES ARE ISSUABLE ONLY IN REGISTERED FORM IN DENOMINATIONS AS PROVIDED
IN THE INDENTURE, SUBJECT TO CERTAIN LIMITATIONS THEREIN SET FORTH.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 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.
10
EXHIBIT B
FORM OF CLASS B NOTE
REGISTERED $28,510,000
Xx. X-0 XXXXX XX. 00000XXX0
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.
AMSOUTH AUTO TRUST 2000-1
7.080% CLASS B ASSET BACKED NOTES
AmSouth Auto Trust 2000-1, a trust existing under the laws of the State of
New York (herein referred to as the "Issuer"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of
TWENTY-EIGHT MILLION FIVE HUNDRED TEN THOUSAND DOLLARS ($28,510,000) payable on
each Distribution Date in an amount equal to the aggregate amount, if any,
payable to Noteholders of Class B Notes on such Distribution 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 1, 2000 (as from
time to time amended, supplemented or otherwise modified and in effect, the
"Indenture"), between the Issuer and The Bank of New York Trust Company of
Florida, National Association, a national banking association, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the July 15, 2005 Distribution Date (the "Class B Final Scheduled
Distribution Date") and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. Capitalized terms used but not defined herein are defined in
Article I of the Indenture, which also contains rules as to construction that
shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Distribution Date until the principal of this Note is paid, or
made available for payment, on the
1
principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date), subject to certain limitations contained in Section 3.1 of
the Indenture. Interest on this Note will accrue for each Distribution Date from
and including the fifteenth day of the calendar month immediately preceding such
Distribution Date (or, in the case of the initial Distribution Date, from the
Closing Date) to but excluding the fifteenth day of the following calendar
month. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: October 19, 2000
AMSOUTH AUTO TRUST 2000-1
By: THE CHASE MANHATTAN BANK, not in
its individual capacity but solely
as Owner Trustee of AmSouth Auto
Trust 2000-1
By: __________________________________
Authorized Officer
3
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes designated above and referred to in the
within-mentioned Indenture.
Date: October 19, 0000
XXX XXXX XX XXX XXXX, not in its
individual capacity but solely as
Authenticating Agent
By: __________________________________
Authorized Officer
4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 7.080% Class B Asset Backed Notes (the "Class B Notes") which,
together with the Issuer's 6.745% Class A-1 Asset Backed Notes (the "Class A-1
Notes"), 6.700% Class A-2 Asset Backed Notes (the "Class A-2 Notes"), 6.670%
Class A-3 Asset Backed Notes (the "Class A-3 Notes"), 6.760% 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 7.440% Class
C Asset Backed Notes (the "Class C Notes" and, together with the Class A Notes
and the Class B Notes, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class B Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
B Notes are subordinated in right of payment to the Class A Notes and are senior
in right of payment to the Class C Notes, each as and to the extent provided in
the Indenture.
Principal of the Class B Notes will be payable on each Distribution Date in
an amount described on the face hereof. "Distribution Date" means the fifteenth
day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2000. 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
Distribution 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 of Notes may declare all the Notes to be
immediately due and payable, by a notice in writing to Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class B Notes will be made in accordance with the provisions
of the Indenture.
Payments of interest on this Note on each Distribution 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
5
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 Distribution Date or on the
Final Scheduled Distribution 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
Distribution Date on which Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be mailed
or transmitted by facsimile prior to such final Distribution Date and shall
specify that such final installment will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment. Notices in connection
with redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class B Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes and the
Class C Notes may be redeemed, in whole but not in part, in the manner and to
the extent described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
6
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer,
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property 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
7
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 Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of the Outstanding Amount or of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
8
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 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.
10
EXHIBIT C
FORM OF CLASS C NOTE
REGISTERED $14,260,000
No. R-1 CUSIP NO. 00000XXX0
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.
AMSOUTH AUTO TRUST 2000-1
7.440% CLASS C ASSET BACKED NOTES
AmSouth Auto Trust 2000-1, a trust existing under the laws of the State of
New York (herein referred to as the "Issuer"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of
FOURTEEN MILLION TWO HUNDRED SIXTY THOUSAND DOLLARS ($14,260,000) payable on
each Distribution Date in an amount equal to the aggregate amount, if any,
payable to Noteholders of Class C Notes on such Distribution Date from the
Principal Distribution Account in respect of principal on the Class C Notes
pursuant to Section 3.1 of the Indenture dated as of October 1, 2000 (as from
time to time amended, supplemented or otherwise modified and in effect, the
"Indenture"), between the Issuer and The Bank of New York Trust Company of
Florida, National Association, a national banking association, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the February 15, 2007 Distribution Date (the "Class C Final Scheduled
Distribution Date") and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. Capitalized terms used but not defined herein are defined in
Article I of the Indenture, which also contains rules as to construction that
shall be applicable herein.
The Issuer shall pay interest on this Note at the rate per annum shown
above on each Distribution Date until the principal of this Note is paid, or
made available for payment, on the
1
principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date), subject to certain limitations contained in Section 3.1 of
the Indenture. Interest on this Note will accrue for each Distribution Date
from and including the fifteenth day of the calendar month immediately preceding
such Distribution Date (or, in the case of the initial Distribution Date, from
the Closing Date) to but excluding the fifteenth day of the following calendar
month. Interest will be computed on the basis of a 360-day year of twelve
30-day months. Such principal of and interest on this Note shall be paid in the
manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed pursuant
to Section 2.13 of the Indenture by the Authenticating Agent whose name appears
below by manual signature, this Note shall not be entitled to any benefit under
the Indenture referred to on the reverse hereof, or be valid or obligatory for
any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: October 19, 2000
AMSOUTH AUTO TRUST 2000-1
By: THE CHASE MANHATTAN BANK, not
in its individual capacity but solely as
Owner Trustee of AmSouth Auto
Trust 2000-1
By: __________________________________
Authorized Officer
3
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Notes designated above and referred to in the
within-mentioned Indenture.
Date: October 19, 0000
XXX XXXX XX XXX XXXX, not in its individual
capacity but solely as Authenticating Agent
By: __________________________________
Authorized Officer
4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 7.440% Class C Asset Backed Notes (the "Class C Notes") which,
together with the Issuer's 6.745% Class A-1 Asset Backed Notes (the "Class A-1
Notes"), 6.700% Class A-2 Asset Backed Notes (the "Class A-2 Notes"), 6.670%
Class A-3 Asset Backed Notes (the "Class A-3 Notes"), 6.760% 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 7.080% Class B
Asset Backed Notes (the "Class B Notes" and, together with the Class A Notes and
the Class C Notes, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class C Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
C Notes are subordinated in right of payment to the Class A Notes and the Class
B Notes as and to the extent provided in the Indenture.
Principal of the Class C Notes will be payable on each Distribution Date in
an amount described on the face hereof. "Distribution Date" means the fifteenth
day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2000. All principal payments
on the Class C Notes shall be made pro rata to the Class C Noteholders entitled
thereto.
As described on the face hereof, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of the Class C Final Scheduled
Distribution Date and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. Notwithstanding the foregoing, if an Event of Default should
occur and be continuing, then and in every such case the Indenture Trustee or
the Holders of Notes representing not less than a majority of the Outstanding
Amount of the Controlling Note Class of Notes may declare all the Notes to be
immediately due and payable, by a notice in writing to Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class C Notes will be made in accordance with the provisions
of the Indenture.
Payments of interest on this Note on each Distribution 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
5
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 Distribution Date or on the
Final Scheduled Distribution 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
Distribution Date on which Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be mailed
or transmitted by facsimile prior to such final Distribution Date and shall
specify that such final installment will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment. Notices in connection
with redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2 of the Indenture.
The Issuer shall pay interest on overdue installments of interest at the
Class C Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes, the Class B Notes and the
Class C Notes may be redeemed, in whole but not in part, in the manner and to
the extent described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or such Noteholder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
6
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer,
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee, each in its individual capacity, or
(iv) any holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee, each in its individual capacity, except as any such Person may
have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to the
extent Seller enters into other securitization transactions, each Noteholder or
Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Seller
(other than the Trust Property 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
7
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 Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the other Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, and franchise tax purposes,
the Notes will qualify as indebtedness secured by the Trust Estate. Each
Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance
of a beneficial interest in a Note), will be deemed to agree to treat the Notes
for federal, state and local income, single business and franchise tax purposes
as indebtedness.
Prior to the due presentment for registration of transfer of this Note, the
Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of all
Noteholders adversely affected) the Issuer and the Indenture Trustee to enter
into one or more supplemental indentures without the consent of the Noteholders
provided certain conditions are satisfied. The Indenture also contains
provisions permitting the Noteholders of Notes evidencing specified percentages
of the Outstanding Amount or of the Controlling Note Class, on behalf of all
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder of this Note (or any one or more
Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon
all future Noteholders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
8
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
______________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated: ___________________, 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.
10
