EXHIBIT 4.2
EXECUTION COPY
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INDENTURE
between
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
owner trustee of M&I Auto Loan Trust 2001-1
and
BANK ONE, NATIONAL ASSOCIATION
as Indenture Trustee
and
M&I XXXXXXXX & XXXXXX BANK
as Servicer
August 30, 2001
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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
(a) (2).................................................... N.A.
(b)........................................................ 5.7
____________________
/1/ Note: This Cross Reference Table shall not, for any purpose, be deemed
to be part of this Indenture.
/2/ N.A. means Not Applicable.
(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...................................................................................... 5
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.................................................................................... 10
SECTION 2.11 Notices to Clearing Agency.......................................................................... 11
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................................................. 17
SECTION 3.8 Negative Covenants................................................................................... 19
SECTION 3.9 Annual Statement as to Compliance.................................................................... 19
SECTION 3.10 The Trust May Consolidate, Etc....................................................................... 20
SECTION 3.11 Successor or Transferee............................................................................. 22
SECTION 3.12 No Other Business................................................................................... 22
SECTION 3.13 No Borrowing........................................................................................ 22
(i)
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SECTION 3.14 Servicer's Obligations.............................................................................. 22
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities................................................... 22
SECTION 3.16 Capital Expenditures................................................................................ 22
SECTION 3.17 Restricted Payments................................................................................. 23
SECTION 3.18 Notice of Events of Default......................................................................... 23
SECTION 3.19 Further Instruments and Acts........................................................................ 23
SECTION 3.20 Removal of Administrator............................................................................ 23
ARTICLE IV SATISFACTION AND DISCHARGE........................................................................... 23
SECTION 4.1 Satisfaction and Discharge of Indenture.............................................................. 23
SECTION 4.2 Application of Trust Money........................................................................... 25
SECTION 4.3 Repayment of Moneys Held by Paying Agent............................................................. 25
ARTICLE V REMEDIES............................................................................................. 25
SECTION 5.1 Events of Default.................................................................................... 25
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment................................................... 27
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee............................ 27
SECTION 5.4 Remedies; Priorities................................................................................. 30
SECTION 5.5 Optional Preservation of the Receivables............................................................. 33
SECTION 5.6 Limitation of Suits.................................................................................. 33
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest................................ 34
SECTION 5.8 Restoration of Rights and Remedies................................................................... 34
SECTION 5.9 Rights and Remedies Cumulative....................................................................... 34
SECTION 5.10 Delay or Omission Not a Waiver...................................................................... 34
SECTION 5.11 Control by Controlling Note Class of Noteholders.................................................... 35
SECTION 5.12 Waiver of Past Defaults............................................................................. 35
SECTION 5.13 Undertaking for Costs............................................................................... 36
SECTION 5.14 Waiver of Stay or Extension Laws.................................................................... 36
SECTION 5.15 Action on Notes..................................................................................... 36
SECTION 5.16 Performance and Enforcement of Certain Obligations.................................................. 37
ARTICLE VI INDENTURE TRUSTEE.................................................................................... 38
SECTION 6.1 Duties of Indenture Trustee.......................................................................... 38
SECTION 6.2 Rights of Indenture Trustee.......................................................................... 39
SECTION 6.3 Individual Rights of Indenture Trustee............................................................... 41
SECTION 6.4 Indenture Trustee's Disclaimer....................................................................... 41
SECTION 6.5 Notice of Defaults................................................................................... 41
(ii)
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SECTION 6.6 Reports by Indenture Trustee to Holders.............................................................. 42
SECTION 6.7 Compensation and Indemnity........................................................................... 42
SECTION 6.8 Replacement of Indenture Trustee..................................................................... 42
SECTION 6.9 Successor Indenture Trustee by Merger................................................................ 44
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee................................... 44
SECTION 6.11 Eligibility; Disqualification....................................................................... 46
SECTION 6.12 Preferential Collection of Claims Against Owner Trustee............................................. 47
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS....................................................................... 47
SECTION 7.1 Owner Trustee to Furnish Indenture Trustee Names and Addresses of Noteholders........................ 47
SECTION 7.2 Preservation of Information; Communications to Noteholders........................................... 47
SECTION 7.3 Reports by Owner Trustee............................................................................. 47
SECTION 7.4 Reports by Indenture Trustee......................................................................... 48
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES................................................................. 49
SECTION 8.1 Collection of Money.................................................................................. 49
SECTION 8.2 Trust Accounts....................................................................................... 49
SECTION 8.3 General Provisions Regarding Accounts................................................................ 51
SECTION 8.4 Release of Trust Estate.............................................................................. 52
SECTION 8.5 Opinion of Counsel................................................................................... 53
SECTION 8.6 Reserve Account...................................................................................... 53
ARTICLE IX SUPPLEMENTAL INDENTURES.............................................................................. 55
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders............................................... 55
SECTION 9.2 Supplemental Indentures with Consent of Noteholders.................................................. 57
SECTION 9.3 Execution of Supplemental Indentures................................................................. 59
SECTION 9.4 Effect of Supplemental Indenture..................................................................... 59
SECTION 9.5 Conformity With Trust Indenture Act.................................................................. 59
SECTION 9.6 Reference in Notes to Supplemental Indentures........................................................ 60
(iii)
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ARTICLE X REDEMPTION OF NOTES................................................................................. 60
SECTION 10.1 Redemption.......................................................................................... 60
SECTION 10.2 Form of Redemption Notice........................................................................... 60
SECTION 10.3 Notes Payable on Redemption Date.................................................................... 61
ARTICLE XI MISCELLANEOUS....................................................................................... 61
SECTION 11.1 Compliance Certificates and Opinions, etc........................................................... 61
SECTION 11.2 Form of Documents Delivered to Indenture Trustee.................................................... 63
SECTION 11.3 Acts of Noteholders................................................................................. 64
SECTION 11.4 Notices, etc., to Indenture Trustee, Owner Trustee and Rating Agencies.............................. 65
SECTION 11.5 Notices to Noteholders; Waiver...................................................................... 66
SECTION 11.6 Alternate Payment and Notice Provisions............................................................. 66
SECTION 11.7 Conflict with Trust Indenture Act................................................................... 66
SECTION 11.8 Effect of Headings and Table of Contents............................................................ 67
SECTION 11.9 Successors and Assigns.............................................................................. 67
SECTION 11.10 Separability....................................................................................... 67
SECTION 11.11 Benefits of Indenture.............................................................................. 67
SECTION 11.12 Legal Holidays..................................................................................... 67
SECTION 11.13 GOVERNING LAW...................................................................................... 67
SECTION 11.14 Counterparts....................................................................................... 67
SECTION 11.15 Recording of Indenture............................................................................. 68
SECTION 11.16 Trust Obligation................................................................................... 68
SECTION 11.17 No Petition........................................................................................ 69
SECTION 11.18 Inspection......................................................................................... 69
EXHIBITS
Exhibit A-1 Form of Class A-1 Note
Exhibit A-2 Form of Class A-2 Note
Exhibit A-3 Form of Class A-3 Note
Exhibit A-4 Form of Class A-4 Note
Exhibit B Form of Class B Note
Exhibit C Bloomberg Data
SCHEDULES
Schedule A Indenture Trustee Fee
(iv)
INDENTURE dated as of August 30, 2001, (as from time to time amended,
supplemented or otherwise modified and in effect, this "Indenture") between
BANKERS TRUST (DELAWARE), not in its individual capacity but solely as owner
trustee of M&I Auto Loan Trust 2001-1, a Delaware common law trust (the "Owner
Trustee"), Bank One, National Association, a national banking association,
solely as trustee and not in its individual capacity ("Indenture Trustee") and
M&I MARSHAL & ILSLEY BANK (the "Servicer").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Trust's 3.51% Class A-1 Asset
Backed Notes (the "Class A-1 Notes"), 3.89% Class A-2 Asset Backed Notes (the
"Class A-2 Notes"), 4.49% Class A-3 Asset Backed Notes (the "Class A-3 Notes"),
4.97% 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 5.88% Class B Asset Backed Notes (the "Class B Notes" and, together
with the Class A Notes, the "Notes"):
GRANTING CLAUSE
Owner Trustee hereby Grants to Indenture Trustee at the Closing Date, as
Indenture Trustee for the benefit of the Holders of the Notes, all of Owner
Trustee's right, title and interest in and to (a) the Receivables, and all
moneys received thereon after the Cutoff Date; (b) the security interests in the
Financed Vehicles granted by Obligors pursuant to the Receivables and any other
interest of Owner Trustee in the Financed Vehicles and any other property that
shall secure the Receivables; (c) any proceeds with respect to the Receivables
from claims on any Insurance Policies covering Financed Vehicles or the Obligors
naming M&I Bank as an insured; (d) rebates of premiums relating to Insurance
Policies and rebates of other items such as extended warranties financed under
the Receivables, in each case, to the extent the Servicer would, in accordance
with its customary practices, apply such amounts to the Principal Balance of the
related Receivable; (e) any proceeds from (i) any Receivable repurchased by a
Dealer, pursuant to a Dealer Agreement, as a result of a breach of
representation or warranty in the related Dealer Agreement, (ii) a default by an
Obligor resulting in the repossession of the Financed Vehicle under the
applicable Motor Vehicle Loan or (iii) any Dealer Recourse or other rights
relating to the Receivables under Dealer Agreements; (f) all funds on deposit
from time to time in the Trust Accounts and in the Reserve Account, and in all
investments and proceeds thereof; (g) under the Purchase Agreement; (h) in any
instrument or document relating to the Receivables; (i) the Owner Trustee's
rights under the Sale and Servicing Agreement; (j) all present and future
claims, demands, causes and choses in action in respect of any or all of the
foregoing and all payments on or under and all proceeds of every kind and nature
whatsoever in respect of any or all of the foregoing, including all proceeds of
the conversion, voluntary or involuntary, into
cash or other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which at
any time constitute all or part of or are included in the proceeds of any of the
foregoing; (k) the Reserve Account, and all proceeds of the foregoing, including
all securities, investments, general intangibles, financial assets and
investment property from time to time credited to and any security entitlement
to the Reserve Account; and (l) the Reserve Account Deposit and all proceeds
thereof (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal of
and interest on, and any other amounts owing in respect of, the Notes, equally
and ratably without prejudice, priority or distinction except as set forth
herein, and to secure compliance with the provisions of this Indenture, all as
provided in this Indenture.
Bank One, National Association, as Indenture Trustee on behalf of the
Holders of the Notes, acknowledges such Grant, accepts the trusts under this
Indenture in accordance with its provisions and agrees to perform its duties
required in this Indenture to the best of its ability to the end that the
interests of the Holders of the Notes may be adequately and effectively
protected. The Owner Trustee hereby authorizes the filing of any financing
statements necessary to perfect the security interest of the Indenture Trustee
created by the Grant.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Capitalized terms are used in this Indenture as
defined in Appendix X to the Sale and Servicing Agreement dated as of August 30,
2001, among Bond Securitization, L.L.C., as Depositor, the Owner Trustee and M&I
Bank, as Servicer.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
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"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means Indenture Trustee.
"obligor" on the indenture securities means Owner Trustee and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
SECTION 1.3 Other Interpretive Provisions. All terms defined in this
Indenture shall have the defined meanings when used in any certificate or other
document delivered pursuant hereto unless otherwise defined therein. For
purposes of this Indenture and all such certificates and other documents, unless
the context otherwise requires: (a) accounting terms not otherwise defined in
this Indenture, and accounting terms partly defined in this Indenture to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles; (b) the words "hereof," "herein" and
"hereunder" and words of similar import refer to this Indenture as a whole and
not to any particular provision of this Indenture; (c) references to any
Article, Section, Schedule or Exhibit are references to Articles, Sections,
Schedules and Exhibits in or to this Indenture and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (d) the term "including" means "including without limitation"; (e)
except as otherwise expressly provided herein, references to any law or
regulation refer to that law or regulation as amended from time to time and
include any successor law or regulation; (f) references to any Person include
that Person's successors and assigns; and (g) headings are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
ARTICLE II
THE NOTES
SECTION 2.1 Form. The Class A-1 Notes, Class A-2 Notes, Class A-3 Notes,
Class A-4 Notes and Class B Notes, in each case together with Indenture
Trustee's certificate of authentication, shall be in substantially the forms set
forth in Exhibits X-0, X-0, X-0, X-0 and B, respectively, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note.
3
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of the
Notes set forth in Exhibits X-0, X-0, X-0, X-0 and B are part of the terms of
this Indenture.
SECTION 2.2 Execution, Authentication and Delivery. The Notes shall be
executed on behalf of Owner Trustee by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who were at
any time Authorized Officers of Owner Trustee shall bind Owner Trustee,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
Indenture Trustee shall upon Issuer Order authenticate and deliver Class X-
0 Notes for original issue in an aggregate principal amount of $82,000,000,
Class A-2 Notes for original issue in the aggregate principal amount of
$90,000,000, Class A-3 Notes for original issue in the aggregate principal
amount of $112,000,000, Class A-4 Notes for original issue in the aggregate
principal amount of $52,590,000, and Class B Notes for original issue in the
aggregate principal amount of $10,410,000. The aggregate principal amount of
Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B
Notes outstanding at any time may not exceed such amounts except as provided in
Section 2.5.
Each Note shall be dated the date of its authentication. The Notes shall be
issuable as registered Notes in the minimum denomination of $1,000 and in
integral multiples 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,
Owner Trustee may execute, and upon receipt of an Issuer Order, Indenture
Trustee shall authenticate and deliver, temporary Notes which are printed,
4
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, Owner Trustee will cause Definitive Notes to
be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of Owner Trustee to be
maintained as provided in Section 3.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, Owner Trustee
shall execute and Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Definitive Notes.
SECTION 2.4 Registration of Transfer and Exchange. Owner Trustee shall
cause to be kept a register (the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, Owner Trustee shall provide for the
registration of Notes and the registration of transfers of Notes. Indenture
Trustee or its designee shall initially be "Note Registrar" for the purpose of
maintaining such Note Register and registering Notes and transfers of Notes as
herein provided. Upon any resignation of any Note Registrar, Owner Trustee shall
promptly appoint a successor or, if it elects not to make such an appointment,
assume the duties of Note Registrar.
If a Person other than Indenture Trustee is appointed by Owner Trustee as
Note Registrar, Owner Trustee will give Indenture Trustee prompt written notice
of the appointment of such Note Registrar and of the location, and any change in
the location, of the Note Register, and Indenture Trustee shall have the right
to inspect the Note Register at all reasonable times and to obtain copies
thereof, and Indenture Trustee shall have the right to conclusively rely upon a
certificate executed on behalf of Note Registrar by an Executive Officer thereof
as to the names and addresses of the Holders of the Notes and the principal
amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office or
agency of Owner Trustee to be maintained as provided in Section 3.2, if the
requirements of Section 8-401(1) of the UCC are met, Owner Trustee shall execute
and upon its written request Indenture Trustee shall authenticate and the
Noteholder shall obtain from Indenture Trustee, in the name of the designated
transferee or transferees, one or more new Notes, in any authorized
denominations, of the same class and a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes in any
authorized denominations, of the same class and a like aggregate principal
amount,
5
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange, if the requirements of Section 8-
401(1) of the UCC are met Owner Trustee shall execute and upon its written
request Indenture Trustee shall authenticate and the Noteholder shall obtain
from Indenture Trustee, the Notes which the Noteholder making the exchange is
entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of Owner Trustee, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to Note Registrar duly executed by,
the Holder thereof or such Holder's attorney duly authorized in writing, with
such signature guaranteed by an "eligible guarantor institution" meeting the
requirements of Note Registrar which requirements include membership or
participation in a Securities Transfer Agents Medallion Program ("Stamp") or
such other "signature guarantee program" as may be determined by Note Registrar
in addition to, or in substitution for, Stamp, all in accordance with the
Exchange Act, and (ii) accompanied by such other documents as Indenture Trustee
may require.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but Owner Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
The preceding provisions of this section notwithstanding, Owner Trustee
shall not be required to make and Note Registrar need not register transfers or
exchanges of Notes selected for redemption or of any Note for a period of 15
days preceding the due date for any payment with respect to the Note.
No Note, or any interest therein, may be transferred to an "employee
benefit plan" within the meaning of Section 3(3) of ERISA that is subject to
ERISA, a "plan" described in Section 4975(e)(1) of the Code, any entity that is
deemed to hold "plan assets" of any of the foregoing by reason of an employee
benefit plan's or other plan's investment in such entity, or any governmental
plan subject to applicable law that is substantially similar to the fiduciary
responsibility provisions of ERISA or Section 4975 of the Code, unless such
transferee represents, warrants and covenants that its purchase and holding of
such Note is and will be 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
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governmental plan, will not violate any applicable law that is substantially
similar to ERISA or Section 4975 of the Code). By its acquisition of a Note or
any interest therein, each transferee will be deemed to have represented,
warranted and covenanted that it satisfies the foregoing requirements and the
Indenture Trustee may rely conclusively on the same for purposes hereof.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to Indenture Trustee, or Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to Indenture Trustee such security or
indemnity as may be required by it to hold Owner Trustee and Indenture Trustee
harmless, then, in the absence of notice to Owner Trustee, Note Registrar or
Indenture Trustee that such Note has been acquired by a protected purchaser, and
provided that the requirements of Section 8-405 of the UCC are met, Owner
Trustee shall execute and upon its written request Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note; provided that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within seven days shall be due and payable, or shall have been called for
redemption, instead of issuing a replacement Note, Owner Trustee may upon
delivery of the security or indemnity herein required pay such destroyed, lost
or stolen Note when so due or payable or upon the Redemption Date without
surrender thereof. If, after the delivery of such replacement Note or payment of
a destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a protected purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, Owner
Trustee and Indenture Trustee shall be entitled to recover such replacement Note
(or such payment) from the Person to whom it was delivered or any Person taking
such replacement Note from such Person to whom such replacement Note was
delivered or any assignee of such Person, except a protected purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by Owner Trustee or
Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, Owner Trustee
may require the payment by the Holder of such Note of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of Indenture
Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of Owner Trustee, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to
the extentlawful) 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, Owner Trustee, Indenture Trustee and
any agent of Owner Trustee or Indenture Trustee may treat the Person in
whose name any Note is registered (as of the day of determination) as the
owner of such Note for the purpose of receiving payments of principal of
and interest, if any, on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and neither Owner Trustee, Indenture
Trustee nor any agent of Owner Trustee or Indenture Trustee shall be
affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest. (a)
The Notes shall accrue interest as provided in the forms of the Class A-1
Note, Class A-2 Note, Class A-3 Notes, Class A-4 Notes and Class B Notes,
set forth in Exhibits X-0, X-0, X-0, X-0 and B, respectively, and such
interest shall be payable on each Payment Date as specified therein,
subject to Section 3.1. Any installment of interest or principal, if any,
payable on any Note which is punctually paid or duly provided for by Owner
Trustee on the applicable Payment Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered on the
Record Date, by check mailed first-class, postage prepaid, to such Person's
address as it appears on the Note Register on such Record Date, except
that, unless Definitive Notes have been issued pursuant to Section 2.12,
with respect to Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payment will be made by wire transfer in immediately available funds to the
account designated by such nominee and except for the final installment of
principal payable with respect to such Note on a Payment Date or on the
Final Scheduled Payment Date for such Class (and except for the Redemption
Price for any Note called for redemption pursuant to Section 10.1(a)) which
shall be payable as provided below. The funds represented by any such
checks returned undelivered shall be held in accordance with Section 3.3.
(b) The principal of each Note shall be payable in installments on
each Payment Date as provided in the forms of the Class A-1 Note, Class A-2
Note, Class A-3 Note, Class A-4 Note and Class B Note, set forth in
Exhibits X-0, X-0, X-0, X-0 and B, respectively. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default
shall have occurred and be continuing, if Indenture Trustee or the Holders
of the Notes representing not less than a majority of the Outstanding
Amount of the Controlling Note Class of Notes have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2 and, in
such event, all principal payments on each class of Notes shall be made pro
rata to the Noteholders of such class entitled thereto. Indenture Trustee
shall notify the
8
Person in whose name a Note is registered at the close of business on the
Record Date preceding the Payment Date on which Indenture Trustee expects
that the final installment of principal of and interest on such Note will
be paid. Such notice shall be mailed or transmitted by facsimile prior to
such final Payment Date and shall specify that such final installment will
be payable only upon presentation and surrender of such Note and shall
specify the place where such Note may be presented and surrendered for
payment of such installment. Notices in connection with redemptions of
Notes shall be mailed to Noteholders as provided in Section 10.2.
(c) If Owner Trustee defaults in a payment of interest on the Notes,
Owner Trustee shall pay defaulted interest (plus interest on such defaulted
interest to the extent lawful) at the applicable Interest Rate on the
Payment Date following such default. The Owner Trustee shall pay such
defaulted interest to the Holders of Notes on the Record Date for such
following Payment Date.
SECTION 2.8 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to
any Person other than Indenture Trustee, be delivered to Indenture Trustee
and shall be promptly cancelled by Indenture Trustee. Owner Trustee may at
any time deliver to Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which Owner Trustee may have acquired
in any manner whatsoever, and all Notes so delivered shall be promptly
cancelled by Indenture Trustee. No Notes shall be authenticated in lieu of
or in exchange for any Notes cancelled as provided in this Section, except
as expressly permitted by this Indenture. All cancelled Notes may be held
or disposed of by Indenture Trustee in accordance with its standard
retention or disposal policy as in effect at the time unless Owner Trustee
shall direct by an Issuer Order that they be destroyed or returned to it;
provided that such Issuer Order is timely and the Notes have not been
previously disposed of by Indenture Trustee.
SECTION 2.9 Release of Collateral. Subject to Section 11.1, Indenture
Trustee shall release property from the Lien of this Indenture only in
accordance with the Basic Documents and upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and
Independent Certificates in accordance with TIA Sections 314(c) and
314(d)(1) or an Opinion of Counsel in lieu of such Independent Certificates
to the effect that the TIA does not require any such Independent
Certificates. If the Commission shall issue an exemptive order under TIA
Section 304(d) modifying Owner Trustee's obligations under TIA Sections
314(c) and 314(d)(1), subject to Section 11.1 and the terms of the Basic
Documents, Indenture Trustee shall release property from the Lien of this
Indenture in accordance with the conditions and procedures set forth in
such exemptive order.
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance,
will be issued in the form of typewritten Notes representing the Book-Entry
Notes, to be delivered to Bank One, National Association, as custodian for
The Depository Trust
9
Company, the initial Clearing Agency, by, or on behalf of, Owner Trustee.
Such Notes shall initially be registered on the Note Register in the name
of Cede & Co., the nominee of the initial Clearing Agency, and no Note
Owner will receive a Definitive Note representing such Note Owner's
interest in such Note, except as provided in Section 2.12. Unless and until
definitive, fully registered Notes (the "Definitive Notes") have been
issued to Note Owners pursuant to Section 2.12:
(a) the provisions of this Section 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
10
to be given to Holders of the Notes to the Clearing Agency, and shall have
no obligation to the Note Owners.
SECTION 2.12 Definitive Notes. If (a) the Servicer advises Indenture
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Notes, and the
Servicer is unable to locate a qualified successor, (b) the Servicer at its
option advises Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence
of an Event of Default, Note Owners representing beneficial interests
aggregating at least a majority of the Outstanding Amount of the Notes
advise Indenture Trustee through the Clearing Agency in writing that the
continuation of a book entry system through the Clearing Agency is no
longer in the best interests of the Note Owners, then the Clearing Agency
shall notify all Note Owners and Indenture Trustee of the occurrence of any
such event and of the availability of Definitive Notes to Note Owners
requesting the same. Upon surrender to Indenture Trustee of the typewritten
Note or Notes representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, Owner Trustee shall execute and
Indenture Trustee shall authenticate the Definitive Notes in accordance
with the instructions of the Clearing Agency. None of Owner Trustee, Note
Registrar or Indenture Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Notes,
Indenture Trustee shall recognize the Holders of the Definitive Notes as
Noteholders.
SECTION 2.13 Authenticating Agents. (a) The Indenture Trustee may
appoint one or more Persons (each, an "Authenticating Agent") with power to
act on its behalf and subject to its direction in the authentication of
Notes in connection with issuance, transfers and exchanges under Sections
2.2, 2.3, 2.4, 2.5 and 9.6, as fully to all intents and purposes as though
each such Authenticating Agent had been expressly authorized by those
Sections to authenticate 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.
11
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to Indenture Trustee and Owner Trustee. Indenture
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and Owner
Trustee. Upon receiving such notice of resignation or upon such a
termination, Indenture Trustee may appoint a successor Authenticating Agent
and shall give written notice of any such appointment to Owner Trustee.
(d) The Administrator agrees to pay to each Authenticating Agent
(other than the Indenture Trustee) from time to time reasonable
compensation for its services as agreed upon between the Authenticating
Agent and the Administrative Agent. The provisions of Sections 2.8 and 6.4
shall be applicable to any Authenticating Agent.
SECTION 2.14 Tax Treatment. Owner Trustee has entered into this
Indenture, and the Notes shall be issued, with the intention that, for
federal, state and local income and franchise tax purposes, the Notes shall
qualify as indebtedness secured by the Trust Estate. Owner Trustee, by
entering into this Indenture, and each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of an interest in the
applicable Book-Entry Note), agree to treat the Notes for federal, state
and local income and franchise tax purposes as indebtedness.
SECTION 2.15 Note Paying Agents. (a) The Indenture Trustee is
appointed "Note Paying Agent" under this Indenture and hereby accepts such
appointment. The Indenture Trustee may appoint one or more Note Paying
Agents with the power to make payments to and distribution from the Trust
Accounts and the Reserve Account.
(b) Any corporation into which any Note Paying Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any Note
Paying Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of any Note Paying Agent
shall be the successor of such Note Paying Agent hereunder, without the
execution or filing of any further act on the part of the parties hereto or
such Note Paying Agent or such successor corporation.
(c) Any Note Paying Agent may at any time resign by giving written
notice of resignation to Indenture Trustee and Administrator. Indenture
Trustee may at any time terminate 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
12
the Note Paying Agent and the Indenture Trustee. The provisions of Section
6.4 shall be applicable to any Note Paying Agent.
ARTICLE
COVENANTS
SECTION 3.1 Payment of Principal and Interest. Owner Trustee will duly
and punctually pay the principal of and interest on the Notes in accordance
with the terms of the Notes and this Indenture. Without limiting the
foregoing, subject to Section 8.2(c), Owner Trustee will cause to be
distributed all amounts on deposit in the Note Distribution Account on a
Payment Date deposited therein pursuant to the Sale and Servicing
Agreement. Amounts properly withheld under the Code by any Person from a
payment to any Noteholder of interest and/or principal shall be considered
as having been paid by Owner Trustee to such Noteholder for all purposes of
this Indenture.
SECTION 3.2 Maintenance of Office or Agency. Owner Trustee will
maintain in the city of Wilmington, Delaware or in the city of Chicago,
Illinois, an office or agency where Notes may be surrendered for
registration of transfer or exchange, and where notices and demands to or
upon Owner Trustee in respect of the Notes and this Indenture may be
served. Owner Trustee hereby initially appoints Indenture Trustee to serve
as its agent for the foregoing purposes. Owner Trustee will give prompt
written notice to Indenture Trustee of the location, and of any change in
the location, of any such office or agency. If at any time Owner Trustee
shall fail to maintain any such office or agency or shall fail to furnish
Indenture Trustee with the address thereof, such surrenders, notices and
demands may be made or served at the Corporate Trust Office, and Owner
Trustee hereby appoints Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust. As provided in
Section 8.2, all payments of amounts due and payable with respect to any
Notes that are to be made from amounts withdrawn from the Collection
Account and the Note Distribution Account pursuant to Section 8.2(c) shall
be made on behalf of Owner Trustee by Indenture Trustee or by another
Paying Agent, and no amounts so withdrawn from the Collection Account and
the Note Distribution Account for payments of Notes shall be paid over to
Owner Trustee except as provided in this Section.
On or before each Payment Date and Redemption Date, Owner Trustee
shall deposit or cause to be deposited in the Note Distribution Account an
aggregate sum sufficient to pay the amounts then becoming due under the
Notes, such sum to be held in trust for the benefit of the Persons entitled
thereto and (unless the Paying Agent is Indenture Trustee) shall promptly
notify Indenture Trustee of its action or failure so to act.
13
Owner Trustee will cause each Paying Agent other than Indenture
Trustee to execute and deliver to Indenture Trustee an instrument in which
such Paying Agent shall agree with Indenture Trustee (and if Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as provided herein and pay such sums to such Persons as in
the Basic Documents;
(ii) give Indenture Trustee notice of any default by Owner
Trustee (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with
respect to the Notes;
(iii) at any time during the continuance of any such default, upon
the written request of Indenture Trustee, forthwith pay to Indenture
Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
Indenture Trustee all sums held by it in trust for the payment of
Notes if at any time it ceases to meet the standards required to be
met by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code and any state or
local tax law with respect to the withholding from any payments made
by it on any Notes of any applicable withholding taxes imposed thereon
and with respect to any applicable reporting requirements in
connection therewith.
Owner Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to Indenture Trustee all sums
held in trust by such Paying Agent, such sums to be held by Indenture
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such a payment by any Paying Agent to Indenture
Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Subject to applicable laws with respect to the escheat of funds, any
money held by Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed
for two years after such amount has become due and payable shall be
discharged from such trust and be paid to Owner Trustee on Issuer Request;
and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to Owner Trustee for payment
14
thereof (but only to the extent of the amounts so paid to Owner Trustee),
and all liability of Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided that Indenture Trustee or
such Paying Agent, before being required to make any such repayment, shall
at the expense of Owner Trustee cause to be published once, in a newspaper
published in the English language, customarily published on each Business
Day and of general circulation in The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to Owner
Trustee. Indenture Trustee shall also adopt and employ, at the expense of
Owner Trustee, any other reasonable means of notification of such repayment
(including, but not limited to, mailing notice of such repayment to Holders
whose Notes have been called but have not been surrendered for redemption
or whose right to or interest in moneys due and payable but not claimed is
determinable from the records of Indenture Trustee or of any Paying Agent,
at the last address of record for each such Holder).
SECTION 3.4 Existence. Except as otherwise permitted by the provisions
of Section 3.10, Owner Trustee will keep in full effect the existence,
rights and franchises of M&I Auto Loan Trust 2001-1 as a common law trust
under the laws of the State of Delaware (unless it becomes, or any
successor Owner Trustee hereunder is or becomes, organized under the laws
of any other state or of the United States of America, in which case Owner
Trustee will keep in full effect the existence, rights and franchises of
M&I Auto Loan Trust 2001-1 under the laws of such other jurisdiction) and
will obtain and preserve its qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Notes, the
Collateral and each other instrument or agreement included in the Trust
Estate.
SECTION 3.5 Protection of Trust Estate. Owner Trustee will from time
to time prepare (or shall cause to be prepared), execute and deliver all
such supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other
instruments, and will take such other action necessary or advisable to:
(a) maintain or preserve the Lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(b) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(c) enforce any of the Collateral; or
15
(d) preserve and defend title to the Trust Estate and the rights
of Indenture Trustee and the Noteholders in such Trust Estate against
the claims of all persons and parties.
Owner Trustee hereby designates Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement
or other instrument required by Owner Trustee pursuant to this Section.
SECTION 3.6 Opinions as to Trust Estate. (a) On the Closing Date,
Owner Trustee shall furnish to Indenture Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been
taken with respect to the recording and filing of this Indenture, any
indentures supplemental hereto, and any other requisite documents, and with
respect to the execution and filing of any financing statements and
continuation statements, as are necessary to perfect and make effective the
Lien and security interest of this Indenture and 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, Owner Trustee shall furnish to Indenture Trustee an
Opinion of Counsel either stating that, in the opinion of such counsel,
such action has been taken with respect to the recording, filing, re-
recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and with respect to the execution
and filing of any financing statements and continuation statements as are
necessary to maintain the Lien and security interest created by this
Indenture and reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to maintain such Lien
and security interest. Such Opinion of Counsel shall also describe the
recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents and the
execution and filing of any financing statements and continuation
statements that will, in the opinion of such counsel, be required to
maintain the Lien and security interest of this Indenture until April 30 in
the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Receivables. (a)
Owner Trustee will not take any action and will use its best efforts not to
permit any action to be taken by others that would release any Person from
any of such Person's material covenants or obligations under any instrument
or agreement included in the Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or
impair the validity or effectiveness of, any such instrument or agreement,
except as ordered by any bankruptcy or other court or as expressly provided
in this Indenture, the Basic Documents or such other instrument or
agreement.
16
(b) Owner Trustee may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to Indenture Trustee in an Officer's Certificate of Owner
Trustee shall be deemed to be action taken by Owner Trustee. Initially, Owner
Trustee has contracted with Servicer and the Administrator to assist Owner
Trustee in performing its duties under this Indenture.
(c) Owner Trustee will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Basic Documents and
in the instruments and agreements included in the Trust Estate, including but
not limited to preparing (or causing to prepared) and filing (or causing to be
filed) all UCC financing statements and continuation statements required to be
filed by the terms of this Indenture and the Sale and Servicing Agreement in
accordance with and within the time periods provided for herein and therein.
Except as otherwise expressly provided therein, Owner Trustee shall not waive,
amend, modify, supplement or terminate any Basic Document or any provision
thereof without the consent of Indenture Trustee or the Holders of at least a
majority of the Outstanding Amount of the Notes.
(d) If Owner Trustee shall have knowledge of the occurrence of a Servicer
Termination Event under the Sale and Servicing Agreement, Owner Trustee shall
promptly notify Indenture Trustee and the Rating Agencies thereof in accordance
with Section 11.4, and shall specify in such notice the action, if any, Owner
Trustee is taking in respect of such default. If a Servicer Termination Event
shall arise from the failure of Servicer to perform any of its duties or
obligations under the Sale and Servicing Agreement with respect to the
Receivables, Owner Trustee shall take all reasonable steps available to it to
remedy such failure.
(e) As promptly as possible after the giving of notice of termination to
Servicer of Servicer's rights and powers pursuant to Section 8.1 of the Sale and
Servicing Agreement or the Servicer's resignation in accordance with the terms
of the Sale and Servicing Agreement, the Indenture Trustee shall appoint a
successor servicer (the "Successor Servicer"), and such Successor Servicer shall
accept its appointment by a written assumption in a form acceptable to Indenture
Trustee. In the event that a Successor Servicer has not been appointed and
accepted its appointment at the time when Servicer ceases to act as Servicer,
Indenture Trustee without further action shall automatically be appointed the
Successor Servicer. If Indenture Trustee shall succeed to Servicer's duties as
servicer of the Receivables as provided herein, it shall do so in its individual
capacity and not in its capacity as Indenture Trustee and, accordingly, the
provisions of Article VI shall be inapplicable to Indenture Trustee in its
duties as the successor to Servicer and the servicing of the Receivables. In the
case that Indenture Trustee becomes successor to Servicer under the Sale and
Servicing Agreement, Indenture Trustee shall be entitled to appoint as Servicer
any one of its Affiliates, or delegate any of its responsibilities as Servicer
17
to agents, subject to the terms of the Sale and Servicing Agreement, provided
that such appointment or delegation shall not affect or alter in any way the
liability of Indenture Trustee as a successor for the performance of the duties
and obligations of Servicer in accordance with the terms hereof. Owner Trustee
shall enter into an agreement with such successor for the servicing of the
Receivables (such agreement to be in form and substance satisfactory to
Indenture Trustee).
(f) Upon any termination of Servicer's rights and powers pursuant to the
Sale and Servicing Agreement, Owner Trustee shall promptly notify Indenture
Trustee. As soon as a Successor Servicer (other than Indenture Trustee) is
appointed, Owner Trustee shall notify Indenture Trustee of such appointment,
specifying in such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment granted
to Indenture Trustee under this Indenture or the rights of Indenture Trustee
hereunder, Owner Trustee agrees that, unless such action is specifically
permitted hereunder or under the Basic Documents, it will not, without the prior
written consent of Indenture Trustee or the Holders of at least a majority in
Outstanding Amount of the Notes, amend, modify, waive, supplement, terminate or
surrender, or agree to any amendment, modification, supplement, termination,
waiver or surrender of, the terms of any Collateral or the Basic Documents, or
waive timely performance or observance by Servicer or Depositor under the Sale
and Servicing Agreement; provided that no such amendment shall (i) except for
amendments and modifications of the Receivables permitted under the Sale and
Servicing Agreement, increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required to be made
for the benefit of the Noteholders, or (ii) reduce the aforesaid percentage of
the Notes which are required to consent to any such amendment, without the
consent of the Holders of all the Outstanding Notes. If any such amendment,
modification, supplement or waiver shall be so consented to by Indenture Trustee
or such Holders, Owner Trustee agrees, promptly following a request by Indenture
Trustee to do so, to execute and deliver, in its own name and at its own
expense, such agreements, instruments, consents and other documents as Indenture
Trustee may deem necessary or appropriate in the circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding, Owner
Trustee shall not:
(a) except as expressly permitted by this Indenture or the Basic
Documents, sell, transfer, exchange or otherwise dispose of any of the
properties or assets of Owner Trustee, including those included in the
Trust Estate, unless directed to do so by Indenture Trustee;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly
18
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) permit the validity or effectiveness of this Indenture to be
impaired, or permit the Lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any
Person to be released from any covenants or obligations with respect
to the Notes under this Indenture except as may be expressly permitted
hereby, 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 permit the Lien of this Indenture not to
constitute a valid first priority (other than with respect to any such
tax, mechanics' or other Lien) security interest in the Trust Estate.
SECTION 3.9 Annual Statement as to Compliance. Owner Trustee will
deliver to Indenture Trustee, within 120 days after the end of each fiscal
year of the Trust (commencing 120 days after the fiscal year ended December
30, 2001), and otherwise in compliance with the requirements of TIA Section
314(a)(4) an Officer's Certificate stating, as to the Authorized Officer
signing such Officer's Certificate, that:
(a) a review of the activities of Owner Trustee during such year
and of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on
such review, Owner Trustee has complied with all conditions and
covenants under this Indenture throughout such year, or, if there has
been a default in the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officer and the
nature and status thereof.
SECTION 3.10 The Trust May Consolidate, Etc. Only on Certain Terms.
The Trust shall not consolidate or merge with or into any other Person,
unless:
(i) the Person (if other than the Trust) formed by or surviving
such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America or any state and shall
expressly assume,
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by an indenture supplemental hereto, executed and delivered to
Indenture Trustee, in form satisfactory to Indenture Trustee, the due
and punctual payment of the principal of and interest on all Notes and
the performance or observance of every agreement and covenant of this
Indenture on the part of the Trust to be performed or observed, all as
provided herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) Owner Trustee shall have received an Opinion of Counsel
(and shall have delivered copies thereof to Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken; and
(vi) Owner Trustee shall have delivered to Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act).
(b) Except as expressly contemplated by the Basic Documents, Owner
Trustee shall not convey or transfer all or substantially all of its
properties or assets, including those included in the Trust Estate, to any
Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of Owner Trustee the conveyance or transfer of
which is hereby restricted shall (A) be a United States citizen or a
Person organized and existing under the laws of the United States of
America or any state, (B) expressly assume, by an indenture
supplemental hereto, executed and delivered to Indenture Trustee, in
form satisfactory to Indenture Trustee, the due and punctual payment
of the principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the
part of Owner Trustee to be performed or observed, all as provided
herein, (C) expressly agree by means of such supplemental indenture
that all right, title and interest so conveyed or transferred shall be
subject and subordinate to the rights of Holders of the Notes, (D)
unless otherwise provided in such supplemental indenture, expressly
agree to
20
indemnify, defend and hold harmless Owner Trustee against and from any
loss, liability or expense arising under or related to this Indenture
and the Notes and (E) expressly agree by means of such supplemental
indenture that such Person (or if a group of persons, then one
specified Person) shall prepare (or cause to be prepared) and make all
filings with the Commission (and any other appropriate Person)
required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) Owner Trustee shall have received an Opinion of Counsel
(and shall have delivered copies thereof to Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken; and
(vi) Owner Trustee shall have delivered to Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act).
SECTION 3.11 Successor or Transferee. Upon any consolidation or merger
of the Trust in accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the Trust) shall
succeed to, and be substituted for, and may exercise every right and power
of, the Trust under this Indenture with the same effect as if such Person
had been named as issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Trust pursuant to Section 3.10(b), the Owner Trustee will be released
from every covenant and agreement of this Indenture to be observed or
performed on the part of Owner Trustee with respect to the Notes
immediately upon the delivery of written notice to Indenture Trustee
stating that the Owner Trustee is to be so released.
SECTION 3.12 No Other Business. Owner Trustee shall not engage in any
business other than financing, purchasing, owning, selling, managing and
pledging
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the Receivables in the manner contemplated by this Indenture and the Basic
Documents and activities incidental thereto.
SECTION 3.13 No Borrowing. Owner Trustee shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness except for the Notes.
SECTION 3.14 Servicer's Obligations. Owner Trustee shall cause
Servicer to comply with the Sale and Servicing Agreement, including
Sections 4.9, 4.10 and 4.11 thereof and the Administration Agreement,
including Sections 4.12 and 5.5 thereof.
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by the Sale and Servicing Agreement or this Indenture,
Owner Trustee shall not make any loan or advance or credit to, or guarantee
(directly or indirectly or by an instrument having the effect of assuring
another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable,
directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or
any other interest in, or make any capital contribution to, any other
Person.
SECTION 3.16 Capital Expenditures. Owner Trustee shall not make any
expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
SECTION 3.17 Restricted Payments. Owner Trustee shall not, directly or
indirectly, pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a
combination thereof, to Owner Trustee or any owner of a beneficial interest
in the Trust or otherwise with respect to any ownership or equity interest
or security in or of Owner Trustee or to Servicer or Administrator, redeem,
purchase, retire or otherwise acquire for value any such ownership or
equity interest or security or set aside or otherwise segregate any amounts
for any such purpose; provided that Owner Trustee may make, or cause to be
made, distributions to Servicer, Administrator, Owner Trustee, Indenture
Trustee and the Certificateholders as permitted by, and to the extent funds
are available for such purpose under, the Sale and Servicing Agreement or
Trust Agreement. Owner Trustee will not, directly or indirectly, make
payments to or distributions from the Trust Accounts except in accordance
with this Indenture and the Basic Documents.
SECTION 3.18 Notice of Events of Default. Owner Trustee agrees to give
Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder and each Event of Servicing Termination.
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SECTION 3.19 Further Instruments and Acts. Upon request of Indenture
Trustee, Owner Trustee will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry
out more effectively the purpose of this Indenture.
SECTION 3.20 Removal of Administrator. For so long as any Notes are
Outstanding, the Owner Trustee shall not remove the Administrator without
cause unless the Rating Agency Condition shall have been satisfied in
connection therewith.
ARTICLE
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
rights of registration of transfer and exchange, substitution of mutilated,
destroyed, lost or stolen Notes, rights of Noteholders to receive payments
of principal thereof and interest thereon, 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, 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 the rights of Noteholders as beneficiaries
hereof with respect to the property so deposited with Indenture Trustee
payable to all or any of them, and Indenture Trustee, on demand of and at
the expense of Owner Trustee, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to
the Notes, when:
(i) either;
(A) all Notes theretofore authenticated and delivered
(other than (1) Notes that have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section 2.5
and (2) Notes for which payment money has theretofore been
deposited in trust or segregated and held in trust by Owner
Trustee and thereafter repaid to Owner Trustee or discharged from
such trust, as provided in Section 3.3) have been delivered to
Indenture Trustee for cancellation; or
(B) all Notes not theretofore delivered to Indenture
Trustee for cancellation;
(1) have become due and payable;
(2) will become due and payable at the Final
Scheduled Payment Date within one year; or
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(3) are to be called for redemption within one year
under arrangements satisfactory to Indenture Trustee for the
giving of notice of redemption by Indenture Trustee in the
name, and at the expense, of Owner Trustee;
and Owner Trustee, in the case of clauses (1), (2) or (3), has
irrevocably deposited or caused to be irrevocably deposited with
Indenture Trustee cash or direct obligations of or obligations
guaranteed by the United States of America (which will mature
prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to Indenture
Trustee for cancellation when due to the Final Scheduled Payment
Date or Redemption Date (if Notes shall have been called for
redemption pursuant to Section 10.1(a)), as the case may be;
(ii) Owner Trustee has paid or caused to be paid all other sums
payable hereunder by Owner Trustee; and
(iii) Owner Trustee has delivered to Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if required by the
TIA or Indenture Trustee) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable requirements
of Section 11.1(a) and each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
SECTION 4.2 Application of Trust Money. All moneys deposited with
Indenture Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as
Servicer may direct, to the Holders of the particular Notes for the payment
or redemption of which such moneys have been deposited with Indenture
Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys need not be segregated from other funds except to
the extent required herein or in the Sale and Servicing Agreement or
required by law.
SECTION 4.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Notes, all moneys then held by any Paying Agent other than Indenture
Trustee under the provisions of this Indenture with respect to such Notes
shall, upon demand of Owner Trustee, be paid to Indenture Trustee to be
held and applied according to Section 3.3 and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
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ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default", wherever used
herein, means the occurrence of any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any interest on any Note of the
Controlling Note Class when the same becomes due and payable, and such
default shall continue for a period of five days;
(b) default in the payment of the principal of or any
installment of the principal of any Note when the same becomes due and
payable;
(c) default in the observance or performance of any material
covenant or agreement of Owner Trustee made in this Indenture (other
than a covenant or agreement, a default in the observance or
performance of which is elsewhere in this Section 5.11 specifically
dealt with), or any representation or warranty of Owner Trustee made
in this Indenture or in any certificate or other writing delivered
pursuant hereto or in connection herewith proving to have been
incorrect in any material respect as of the time when the same shall
have been made, and such default shall continue or not be cured, or
the circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 30 days (or for such
longer period, not in excess of 90 days, as may be reasonably
necessary to remedy such default; provided that such default is
capable of remedy within 90 days or less and Servicer on behalf of
Owner Trustee delivers an Officer's Certificate to Indenture Trustee
to the effect that Owner Trustee has commenced, or will promptly
commence and diligently pursue, all reasonable efforts to remedy such
default) after the earlier of discovery or the time that there shall
have been given, by registered or certified mail, to Owner Trustee by
Indenture Trustee or to Owner Trustee and Indenture Trustee by the
Holders of at least 25% of the Outstanding Amount of the Controlling
Note Class of Notes, a written notice specifying such default or
incorrect representation or warranty and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
(d) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Trust or any
substantial part of the Trust Estate in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or
25
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of Owner Trustee or for any
substantial part of the Trust Estate, or ordering the winding-up or
liquidation of the Trust's affairs, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(e) the commencement by Owner Trustee of a voluntary case under
any applicable Federal or state bankruptcy, insolvency or other
similar law now or hereafter in effect, or the consent by Owner
Trustee to the entry of an order for relief in an involuntary case
under any such law, or the consent by Owner Trustee to the appointment
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of Owner Trustee or for any
substantial part of the Trust Estate, or the making by Owner Trustee
of any general assignment for the benefit of creditors, or the failure
by Owner Trustee generally to pay its debts as such debts become due,
or the taking of action by Owner Trustee in furtherance of any of the
foregoing.
Owner Trustee shall deliver to Indenture Trustee, within five days
after the occurrence thereof, written notice in the form of an Officer's
Certificate of any event which with the giving of notice and the lapse of
time would become an Event of Default under clause (c), its status and what
action Owner Trustee is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If an
Event of Default should occur and be continuing, then and in every such
case Indenture Trustee or the Holders of Notes representing not less than a
majority of the Outstanding Amount of the Controlling Note Class of Notes
may declare all the Notes to be immediately due and payable, by a notice in
writing to Owner Trustee (and to Indenture Trustee if given by
Noteholders), and upon any such declaration the unpaid principal amount of
such Notes, together with accrued and unpaid interest thereon through the
date of acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the money due has
been obtained by Indenture Trustee as hereinafter in this Article V
provided, the Holders of Notes representing a majority of the Outstanding
Amount of the Controlling Note Class of Notes, by written notice to Owner
Trustee and Indenture Trustee, may rescind and annul such declaration and
its consequences if:
(a) Owner Trustee has paid or deposited with Indenture Trustee a
sum sufficient to pay;
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(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.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. Owner Trustee covenants that if (i) default is made in
the payment of any interest on any Note when the same becomes due and
payable, and such default continues for a period of five days, or (ii)
default is made in the payment of the principal of or any installment of
the principal of any Note when the same becomes due and payable, Owner
Trustee will, upon demand of Indenture Trustee, pay to it, for the benefit
of the Holders of the Notes, the whole amount then due and payable on such
Notes for principal and interest, with interest upon the overdue principal,
and, to the extent payment at such rate of interest shall be legally
enforceable, upon overdue installments of interest, at the rate specified
in Section 2.7 and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of Indenture
Trustee and its agents and counsel.
(b) In case Owner Trustee shall fail forthwith to pay such amounts
upon such demand, Indenture Trustee, in its own name and as trustee of an
express trust, may institute a proceeding for the collection of the sums so
due and unpaid, and may prosecute such proceeding to judgment or final
decree, and may enforce the same against Owner Trustee or other obligor
upon such Notes and collect in the manner provided by law out of the
property of Owner Trustee or other obligor upon such Notes, wherever
situated, the moneys adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, Indenture
Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders, by such appropriate proceedings as Indenture Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other
proper
27
remedy or legal or equitable right vested in Indenture Trustee by this
Indenture or by law.
(d) In case there shall be pending, relative to Owner Trustee or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust Estate, proceedings under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency
or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of Owner Trustee or its
property or such other obligor or Person, or in case of any other
comparable judicial proceedings relative to Owner Trustee or other obligor
upon the Notes, or to the creditors or property of Owner Trustee or such
other obligor, Indenture Trustee, irrespective of whether the principal of
any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether Indenture Trustee
shall have made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such proceedings or
otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable
in order to have the claims of Indenture Trustee (including any claim
for reasonable compensation to Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and
all advances made, by Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence, bad faith or willful
misconduct) and of the Noteholders allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes in any election of a trustee, a
standby trustee or person performing similar functions in any such
proceedings;
(iii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of
Indenture Trustee or the Holders of Notes allowed in any judicial
proceedings relative to Owner Trustee, its creditors and its property;
28
and any trustee, receiver, liquidator, custodian or other similar official
in any such proceeding is hereby authorized by each of such Noteholders to
make payments to Indenture Trustee, and, in the event that Indenture
Trustee shall consent to the making of payments directly to such
Noteholders, to pay to Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances
made, by Indenture Trustee and each predecessor Indenture Trustee except as
a result of negligence, bad faith or willful misconduct.
(e) Nothing herein contained shall be deemed to authorize Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf
of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by Indenture Trustee
without the possession of any of the Notes or 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. If an Event of Default shall have
occurred and be continuing, Indenture Trustee may do one or more of the
following (subject to Section 5.5):
(i) institute proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from Owner Trustee and any other obligor upon such Notes moneys
adjudged due;
(ii) institute proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust
Estate;
29
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights and
remedies of Indenture Trustee and the Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
provided that Indenture Trustee may not sell or otherwise liquidate the Trust
Estate following an Event of Default unless:
(A) the Event of Default is of the type described in Section 5.1(a) or
(b); or
(B) with respect to an Event of Default described in Section 5.1(c):
(1) the Noteholders of all Outstanding Notes and the
Certificateholders of all outstanding Certificates consent thereto; or
(2) the proceeds of such sale or liquidation are sufficient to
pay in full the principal of and accrued interest on the Outstanding Notes
and outstanding Certificates.
(C) with respect to any Event of Default described in Section 5.1(d) and
(e):
(1) the Noteholders of Notes evidencing 100% of the principal
amount of the Controlling Note Class consent thereto; or
(2) the proceeds of such sale or liquidation are sufficient to
pay in full the principal of and the accrued interest on the Outstanding
Notes; or
(3) the Indenture Trustee
(x) determines (but shall have no obligation to make
such determination) that the Collateral will not continue to
provide sufficient funds for the payment of principal of and
interest on the Notes as they would have become due if the Notes
had not been declared due and payable; and
(y) obtains the consent of Noteholders of Notes
evidencing not less than 66 2/3% of the principal amount of the
Controlling Note Class. or
In determining such sufficiency or insufficiency with respect to clause (B)(2)
and (C)(2) or (C)(3)(x), Indenture Trustee may, but need not, obtain and rely
upon an
30
opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
(b) Notwithstanding the provisions of Section 8.2, following the
occurrence and during the continuation of an Event of Default specified in
Section 5.1(a), 5.1(b), 5.1(d) or 5.1(e) which has resulted in an
acceleration of the Notes (or following the occurrence of any such event
after an Event of Default specified in Section 5.1(c) has occurred and the
Trust Estate has been liquidated), if Indenture Trustee collects any money
or property, it shall pay out such money or property (and other amounts
including amounts held on deposit in the Reserve Account) held as
Collateral for the benefit of the Noteholders, net of liquidation costs
associated with the sale of the Trust Estate, in the following order:
FIRST: to Indenture Trustee for amounts due under Section
6.7 provided that such amount paid pursuant to this clause FIRST shall
not exceed $200,000 in the aggregate;
SECOND: to Servicer for due and unpaid Servicing Fees;
THIRD: to Class A Noteholders for amounts due and unpaid on
the Class A Notes for interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Class A Notes for interest;
FOURTH: to Noteholders of the Class A-1 Notes for amounts
due and unpaid on the Class A-1 Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class A-1 Notes for principal, until principal amount
of the Outstanding Class A-1 Notes is reduced to zero;
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;
31
SEVENTH to Noteholders of the Class B Notes for amounts due
and unpaid on the Class B Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class B Notes for principal, until the principal amount
of the Outstanding Class B Notes is reduced to zero;
EIGHTH: to the Indenture Trustee, any amounts due under
Section 6.7 not paid pursuant to clause FIRST above; and
NINTH: to the Certificate Distribution Account, for
distribution to the Certificateholders.
Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 5.4. At least 15 days
before such record date, Owner Trustee shall mail to each Noteholder and
Indenture Trustee a notice that states the record date, the payment date
and, based on information provided by the Servicer, the amount to be paid.
The Indenture Trustee shall not be required to determine any amount
required to be paid pursuant to any of clauses SECOND to SEVENTH or clause
NINTH above, except in its capacity (if any) as Successor Servicer.
SECTION 5.5 Optional Preservation of the Receivables. If the Notes
have been declared to be due and payable under Section 5.2 following an
Event of Default and such declaration and its consequences have not been
rescinded and annulled, Indenture Trustee may, but need not, elect to
maintain possession of the Trust Estate. It is the desire of the parties
hereto and the Noteholders that there be at all times sufficient funds for
the payment of principal of and interest on the Notes, and Indenture
Trustee shall take such desire into account when determining whether or not
to maintain possession of the Trust Estate. In determining whether to
maintain possession of the Trust Estate, Indenture Trustee may, but need
not, obtain and rely upon an opinion of an Independent investment banking
or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Trust Estate for such
purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have any
right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) such Holder has previously given written notice to
Indenture Trustee of a continuing Event of Default;
(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
32
Trustee to institute such proceeding in respect of such Event of
Default in its own name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to Indenture Trustee
indemnity reasonably satisfactory to it against the costs, expenses
and liabilities to be incurred in complying with such request;
(d) Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
proceedings;
(e) no direction inconsistent with such written request has been
given to Indenture Trustee during such 60-day period by the Holders of
a majority of the Outstanding Amount of the Controlling Note Class of
Notes; and
(f) such Event of Default actually shall have occurred and shall
be
continuing;
it being understood and intended that no one or more Holders of Notes shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided.
In the event Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than a majority of the Outstanding Amount of
the Controlling Note Class of Notes, Indenture Trustee shall submit the
matter to a vote of the Controlling Note Class of Notes to determine what
action, if any, shall be taken, notwithstanding any other provisions of
this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the
Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any,
on such Note on or after the respective due dates thereof expressed in such
Note or this Indenture (or, in the case of redemption, on or after the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
SECTION 5.8 Restoration of Rights and Remedies. If Indenture Trustee
or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to Indenture
Trustee or to such Noteholder, then and in every such case Owner Trustee,
Indenture Trustee and the Noteholders
33
shall, subject to any determination in such Proceeding, be restored
severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of
Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right
or remedy or constitute a waiver of any such Default or Event of Default or
an acquiescence therein. Every right and remedy given by this Article V or
by law to Indenture Trustee or to the Noteholders may be exercised from
time to time, and as often as may be deemed expedient, by Indenture Trustee
or by the Noteholders, as the case may be.
SECTION 5.11 Control by Controlling Note Class of Noteholders. The
Holders of a majority of the Outstanding Amount of the Controlling Note
Class Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to Indenture Trustee
with respect to the Notes or exercising any trust or power conferred on
Indenture Trustee; provided that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture;
(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;
34
(d) Indenture Trustee may take any other action deemed proper by
Indenture Trustee that is not inconsistent with such direction; and
(e) such direction shall be in writing;
provided, further, that, subject to Section 6.1, Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to
such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of Notes of not less than a majority of the Outstanding Amount of
the Controlling Note Class of Notes may waive any past Default or Event of
Default and its consequences except a Default (a) in payment of principal
of or interest on any of the Notes, (b) in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of
the Holder of each Note or (c) depriving the Indenture Trustee or any
Noteholder of any Lien, which waiver shall require the consent of the
Indenture Trustee or such Noteholder, as the case may be. In the case of
any such waiver, Owner Trustee, Indenture Trustee and the Holders of the
Notes shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against Indenture Trustee for any action taken,
suffered or omitted by it as Indenture Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 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
35
enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture
(or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. Owner Trustee covenants
(to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and Owner Trustee (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to Indenture Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 5.15 Action on Notes. Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the Lien of this Indenture nor any
rights or remedies of Indenture Trustee or the Noteholders shall be
impaired by the recovery of any judgment by Indenture Trustee against Owner
Trustee or by the levy of any execution under such judgment upon any
portion of the Trust Estate or upon any of the assets of Owner Trustee. Any
money or property collected by the Indenture Trustee shall be applied in
accordance with Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations. (a)
Promptly following a request from Indenture Trustee to do so and at
Administrator's expense, Owner Trustee agrees to take all such lawful
action as Indenture Trustee may request to compel or secure the performance
and observance by Depositor and Servicer, as applicable, of each of their
obligations to Owner Trustee under or in connection with the Sale and
Servicing Agreement or by the Depositor or the Sellers, as applicable, of
each of their obligations under or in connection with the Purchase
Agreement, in each case, in accordance with the terms thereof, and to
exercise any and all rights, remedies, powers and privileges lawfully
available to Owner Trustee under or in connection with the Sale and
Servicing Agreement and the Purchase Agreement, as the case may be, to the
extent and in the manner directed by Indenture Trustee, including the
transmission of notices of default on the part of Depositor, Servicer or
the Sellers thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by Depositor or
Servicer of each of their obligations under the Sale and Servicing
Agreement or by the Depositor or the Sellers, 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
36
(confirmed in writing promptly thereafter)) of the Holders of 66-2/3%
of the Outstanding Amount of the Controlling Note Class of Notes
shall, exercise all rights, remedies, powers, privileges and claims of
Owner Trustee against Depositor or Servicer under or in connection
with the Sale and Servicing Agreement, or against the Depositor or the
Sellers under the Purchase Agreement, including the right or power to
take any action to compel or secure performance or observance by
Depositor, Servicer or the Sellers of each of their obligations to
Owner Trustee thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Sale and Servicing
Agreement or any Purchase Agreement, as applicable, and any right of
Owner Trustee to take such action shall be suspended.
ARTICLE VI
INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, of which a Responsible Officer
of Indenture Trustee has actual knowledge, Indenture Trustee shall
exercise the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture
and the other Basic Documents to which it is a party and no
implied covenants or obligations shall be read into this
Indenture and the other Basic Documents against Indenture
Trustee; and
(ii) in the absence of bad faith on its part, Indenture
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed 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;
37
(ii) Indenture Trustee shall not be liable for any error of
judgment made in good faith unless it is proved that Indenture
Trustee was negligent in ascertaining the pertinent facts; and
(iii) Indenture Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to any Basic Document or
the direction of the Holders of a majority in principal amount of
the required Notes.
(d) Indenture Trustee shall not be liable for interest on any money
received by it except as Indenture Trustee may agree in writing with Owner
Trustee.
(e) Money held in trust by Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(f) No provision of this Indenture or any other Basic Document shall
require Indenture Trustee to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties hereunder
or thereunder or in the exercise of any of its rights or powers, if it
shall have reasonable grounds to believe that repayment of such funds or
indemnity satisfactory to it against such risk or liability is not assured
to it.
(g) Every provision of this Indenture and each other Basic Document
relating to the conduct or affecting the liability of or affording
protection to Indenture Trustee shall be subject to the provisions of this
Section 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 Owner Trustee, Depositor or the Servicer, personally or by
agent or attorney.
38
(b) Before Indenture Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel. Indenture Trustee shall not
be liable for any action it takes, suffers or omits to take in good faith in
reliance on the Officer's Certificate or Opinion of Counsel.
The Indenture Trustee shall be under no obligation to exercise any of the
powers vested in it by this Indenture or any other Basic Document at the request
or direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Indenture Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(c) Indenture Trustee may execute any of the trusts or powers hereunder and
under the other Basic Documents or perform any duties hereunder or thereunder
either directly or by or through agents or attorneys or a custodian or nominee,
and Indenture Trustee shall not be responsible for any misconduct or negligence
on the part of, or for the supervision of, Depositor, any Seller, or any other
such agent, attorney, custodian or nominee appointed with due care by it
hereunder. Indenture Trustee shall have no duty to monitor the performance of
Owner Trustee.
(d) Indenture Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, that Indenture Trustee's conduct does not constitute 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
39
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 Owner Trustee shall be sufficiently
evidenced by an Issuer Request or Issuer Order.
(j) The Indenture Trustee shall not be required to provide any surety or
bond of any kind in connection with the acceptance or performance of its duties
hereunder or under any other Basic Document.
(k) The Indenture Trustee shall not have any responsibility or liability
with respect to the legality, validity or enforceability of any Receivable or
the sufficiency of any agreement, instrument or other document evidencing or
otherwise related to any Receivable. The Indenture Trustee shall have no
obligation or other duty to inspect, review or otherwise examine any such
document (including any document in a Receivable File) for any purpose.
SECTION 6.3 Individual Rights of Indenture Trustee. Indenture Trustee in
its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with Owner Trustee or its Affiliates with the same rights
it would have if it were not Indenture Trustee. Any Note Paying Agent,
Authenticating Agent Note Registrar, co-registrar, co-paying agent or other
agent of the Indenture Trustee may do the same with like rights. However,
Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4 Indenture Trustee's Disclaimer. Indenture Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes or any other Basic Document, shall not be
accountable for Owner Trustee's use of the proceeds from the Notes, and shall
not be responsible for any statement or omission of Owner Trustee in the
Indenture or any other Basic Document or in any document issued in connection
with the sale of the Notes or in the Notes other than Indenture Trustee's
certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing and
if it is either actually known or written notice of the existence thereof has
been delivered to a Responsible Officer of Indenture Trustee, Indenture Trustee
shall mail to each Noteholder notice of the Default within 90 days after such
knowledge or
40
notice occurs. Except in the case of a Default in payment of principal of or
interest on any Note (including payments pursuant to the mandatory redemption
provisions of such Note), Indenture Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Noteholders. The Indenture Trustee
shall not be charged with knowledge of a Default, Event of Default or Servicer
Termination Event unless a Responsible Officer of the Indenture Trustee has
actual knowledge thereof or shall have received written notice thereof.
SECTION 6.6 Reports by Indenture Trustee to Holders. Indenture Trustee
shall deliver to each Noteholder such information as may be reasonably required
to enable such Holder to prepare its Federal and state income tax returns.
SECTION 6.7 Compensation and Indemnity. Owner Trustee shall cause the
Administrator to pay to Indenture Trustee on the Closing Date and from time to
time reasonable compensation for its services as set forth in Schedule A
attached hereto and made a part hereof (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust). Except as otherwise expressly provided for in this Indenture, Owner
Trustee 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. Owner Trustee 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.
Owner Trustee's payment obligations and indemnifications to Indenture
Trustee pursuant to this Section and the Administration Agreement referenced in
the preceding paragraph shall survive the resignation or removal of Indenture
Trustee and the termination, satisfaction and discharge of this Indenture
subject to a satisfaction of the Rating Agency Condition. When Indenture Trustee
incurs expenses after the occurrence of a Default specified in Section 5.1(d) or
(e) with respect to Owner Trustee, the expenses are intended to constitute
expenses of
41
administration under Title 11 of the United States Code or any other applicable
Federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee. Indenture Trustee may resign
at any time by so notifying Owner Trustee. The Holders of a majority in
Outstanding Amount of the Controlling Note Class of Notes may remove Indenture
Trustee by so notifying Indenture Trustee and may appoint a successor Indenture
Trustee. Owner Trustee shall remove Indenture Trustee if:
(a) Indenture Trustee fails to comply with Section 6.11;
(b) an Insolvency Event occurs with respect to Indenture Trustee;
(c) a receiver or other public officer takes charge of Indenture
Trustee or its property; or
(d) Indenture Trustee otherwise becomes incapable of acting.
If Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (Indenture Trustee in such event
being referred to herein as the retiring Indenture Trustee), Owner Trustee shall
promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to Owner Trustee. Thereupon
the resignation or removal of the retiring Indenture Trustee shall become
effective, and the successor Indenture Trustee shall have all the rights, powers
and duties of Indenture Trustee under this Indenture subject to satisfaction of
the Rating Agency Condition. The successor Indenture Trustee shall mail a notice
of its succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the successor Indenture
Trustee.
If a successor Indenture Trustee does not take office within 30 days after
the retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, Owner Trustee or the Holders of a majority in Outstanding Amount of the
Controlling Note Class of Notes may petition any court of competent jurisdiction
for the appointment of a successor Indenture Trustee.
If Indenture Trustee fails to comply with Section 6.11, any Noteholder may
petition any court of competent jurisdiction for the removal of Indenture
Trustee and the appointment of a successor Indenture Trustee.
Any resignation or removal of Indenture Trustee and appointment of a
Successor Indenture Trustee pursuant to any of the provisions of this Section
shall
42
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, Owner Trustee's and Administrator's obligations under Section 6.7
shall continue for the benefit of the retiring Indenture Trustee.
Indenture Trustee shall not be liable for the acts or omissions of any
successor Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. If Indenture Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Indenture Trustee; provided that such
corporation or banking association shall be otherwise qualified and eligible
under Section 6.11. Indenture Trustee shall provide the Rating Agencies and the
Administrator prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion or
consolidation to Indenture Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to Indenture Trustee may adopt the certificate of authentication
of any predecessor trustee, and deliver such Notes so authenticated; and in case
at that time any of the Notes shall not have been authenticated, any successor
to Indenture Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor to Indenture Trustee; and
in all such cases such certificates shall 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. Notwithstanding any other provisions of this Indenture, at any time,
after delivering written notice to the Administrator, for the purpose of meeting
any legal requirement of any jurisdiction in which any part of Owner Trustee may
at the time be located, Indenture Trustee shall have the power and may execute
and deliver all instruments to appoint one or more Persons to act as a co-
trustee or co-trustees, or separate trustee or separate trustees, of all or any
part of the Trust, and to vest in such Person or Persons, in such capacity and
for the benefit of the Noteholders, such title to the Trust, or any part hereof,
and, subject to the other provisions of this Section, 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
43
no notice to Noteholders of the appointment of any co-trustee or separate
trustee shall be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon Indenture Trustee shall be conferred or imposed upon and exercised or
performed by Indenture Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not authorized to act separately without Indenture Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to
Owner Trustee or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder, including acts or omissions
of predecessor or successor trustees; and
(iii) Indenture Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to Indenture Trustee shall
be deemed to have been given to each of the then separate trustees and co-
trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, Indenture Trustee. Every such instrument shall be filed with
Indenture Trustee.
(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,
44
remedies and trusts shall invest in and be exercised by Indenture Trustee, to
the extent permitted by law, without the appointment of a new or successor
trustee.
SECTION 6.11 Eligibility; Disqualification. (a) Indenture Trustee shall at
all times satisfy the requirements of TIA (S) 310(a). Indenture Trustee shall
have a combined capital and surplus of at least $20,000,000 as set forth in its
most recent published annual report of condition and shall have a long term debt
rating of investment grade or better by the Rating Agencies or shall otherwise
be acceptable to the Rating Agencies. Indenture Trustee shall comply with TIA
(S) 310(b), including the optional provision permitted by the second sentence of
TIA (S) 310(b)(9); provided that there shall be excluded from the operation of
TIA (S) 310(b)(1) any indenture or indentures under which other securities of
Owner Trustee are outstanding if the requirements for such exclusion set forth
in TIA (S) 310(b)(1) are met.
(b) Within ninety (90) days after ascertaining the occurrence of an
Event of Default which shall not have been cured or waived, unless authorized by
the TIA or the Commission, the Indenture Trustee shall resign with respect to
the Class A Notes and/or the Class B Notes in accordance with Section 6.8 of
this Indenture, and the Owner Trustee shall appoint a successor Indenture
Trustee for two or all of such Classes, as applicable, so that there will be
separate Indenture Trustees for the Class A Notes and the Class B Notes. In the
event the Indenture Trustee fails to comply with the terms of the preceding
sentence, the Indenture Trustee shall comply with clauses (ii) and (iii) of TIA
Section 310(b).
(c) In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any Class of Notes pursuant to this Section 6.11, Owner
Trustee, the retiring Indenture Trustee and the successor Indenture Trustee with
respect to such Class of Notes shall execute and deliver an indenture
supplemental hereto wherein each successor Indenture Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, the successor Indenture
Trustee all the rights, powers, trusts and duties of the retiring Indenture
Trustee with respect to the Notes of the Class to which the appointment of such
successor Indenture Trustee relates, (ii) if the retiring Indenture Trustee is
not retiring with respect to all Classes of Notes, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights powers,
trusts and duties of the retiring Indenture Trustee with respect to the Notes of
each Class as to which the retiring Indenture Trustee is not retiring shall
continue to be vested in the Indenture Trustee and (iii) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Indenture
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Indenture Trustees co-trustees of the same trust
and that each such Indenture Trustee shall be a trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Indenture Trustee; and upon
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the removal of the retiring Indenture Trustee shall become effective to the
extent provided herein.
SECTION 6.12 Preferential Collection of Claims Against Owner Trustee.
Indenture Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). An Indenture Trustee who has resigned or
been removed shall be subject to TIA (S) 311(a) to the extent indicated.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Owner Trustee to Furnish Indenture Trustee Names and Addresses
of Noteholders. Owner Trustee will furnish or cause to be furnished to Indenture
Trustee (a) not more than five days after the earlier of (i) each Record Date
and (ii) three months after the last Record Date, a list, in such form as
Indenture Trustee may reasonably require, of the names and addresses of the
Holders as of such Record Date, (b) at such other times as Indenture Trustee may
request in writing, within 30 days after receipt by Owner Trustee of any such
request, a list of similar form and content as of a date not more than 10 days
prior to the time such list is furnished; provided that so long as (i) Indenture
Trustee or its designee is Note Registrar, or (ii) the Notes are Book-Entry
Notes, no such list shall be required to be furnished and in such case, upon the
written request of Owner Trustee or Owner Trustee, Indenture Trustee or its
designee will promptly furnish Owner Trustee a list of Noteholders as of the
date specified by Owner Trustee.
SECTION 7.2 Preservation of Information; Communications to Noteholders.
Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders contained in the most recent
list furnished to Indenture Trustee as provided in Section 7.1 and the names and
addresses of Holders received by Indenture Trustee in its capacity as Note
Registrar. Indenture Trustee may destroy any list furnished to it as provided in
such Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA (S) 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes. Upon receipt by the Indenture Trustee of any request by three or more
Noteholders or by one or more Noteholders of Notes evidencing not less than 25%
of the Outstanding Amount of Notes to receive a copy of the current list of
Noteholders (whether or not made pursuant to TIA (S) 312(b)), the Indenture
Trustee shall promptly notify the Administrator thereof by providing to the
Administrator a copy of such request and a copy of the list of Noteholders
produced in response thereto.
(c) Owner Trustee, Indenture Trustee and Note Registrar shall have the
protection of TIA (S) 312(c).
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SECTION 7.3 Reports by Owner Trustee. Owner Trustee shall:
(i) file with Indenture Trustee, at the time that the Trust is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Trust may be required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with Indenture Trustee and the Commission in accordance
with rules and regulations prescribed from time to time by the Commission
such additional information, documents and reports with respect to
compliance by the Trust with the conditions and covenants of this Indenture
as may be required from time to time by such rules and regulations; and
(iii) supply to Indenture Trustee (and Indenture Trustee shall
transmit by mail to all Noteholders described in TIA (S) 313(c)) such
summaries of any information, documents and reports required to be filed by
the Trust pursuant to clauses (i) and (ii) of this Section 7.3(a) as may be
required by rules and regulations prescribed from time to time by the
Commission.
(b) Unless Owner Trustee otherwise determines, the fiscal year of the Trust
shall end on December 31 of each year.
SECTION 7.4 Reports by Indenture Trustee. (a) If required by TIA (S)
313(a), within 60 days after each May 15, beginning with May 15, 2002, Indenture
Trustee shall mail to each Noteholder as required by TIA (S) 313(c) a brief
report dated as of such date that complies with TIA (S) 313(a). Indenture
Trustee also shall comply with TIA (S) 313(b)(1). A copy of each report at the
time of its mailing to Noteholders shall be filed by Indenture Trustee with the
Commission and each stock exchange, if any, on which the Notes are listed. Owner
Trustee shall notify Indenture Trustee if and when the Notes are listed on any
stock exchange.
(b) As soon as practicable after the Closing Date, the Indenture Trustee
will arrange with Bloomberg to have the Trust set up on Bloomberg to provide the
information set forth on Exhibit C (the "Data") with respect to the Receivables
on a monthly basis in a format acceptable to Bloomberg. During the term of this
Agreement, the Indenture Trustee will provide updated Data to Bloomberg on or
before each Payment Date.
(c) Unless otherwise directed by the Depositor in writing, the Indenture
Trustee shall prepare, sign and file with the Commission, on behalf of the
Depositor, no later than ten days after each Payment Date, the Servicer's Report
on the appropriate form and in the appropriate medium authorized or prescribed
therefor
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under the Exchange Act of 1934. The Indenture Trustee shall promptly forward
copies of all filings made pursuant to this Section 7.4(c) to the Depositor.
(d) Within the prescribed period of time for tax reporting purposed after
the end of each calendar year during the term of this Agreement, the Indenture
Trustee shall mail, to each Person who at any time during such calendar year
shall have been a holder of Notes and received any payments thereon, a statement
containing such information as may be required by the Code and applicable
Treasury Regulations to enable such security holder to prepare its federal
income tax returns.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise expressly provided
herein, Indenture Trustee may demand payment or delivery of, and shall receive
and collect, directly and without intervention or assistance of any fiscal agent
or other intermediary, all money and other property payable to or receivable by
Indenture Trustee pursuant to this Indenture. Indenture Trustee shall apply all
such money received by it as provided in this Indenture. Except as otherwise
expressly provided in this Indenture, if any default occurs in the making of any
payment or performance under any agreement or instrument that is part of the
Trust Estate, Indenture Trustee may take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate proceedings. Any such action shall be without prejudice to any
right to claim a Default or Event of Default under this Indenture and any right
to proceed thereafter as provided in Article V.
SECTION 8.2 Trust Accounts. (a) On or prior to the Closing Date, Owner
Trustee shall cause Servicer to establish, in the name of Indenture Trustee, for
the benefit of the Noteholders and the Certificateholders, the Trust Accounts as
provided in Section 5.1 of the Sale and Servicing Agreement.
(b) On or before each Distribution Date, the Owner Trustee shall cause the
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
Account and deposited to the Collection Account as provided therein, as to which
Owner Trustee shall cause Servicer to timely provide the related instructions.
(c) On each Payment Date, 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
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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 Payment Date (including funds,
if any, deposited therein from the Reserve Account), in accordance with the
provisions of Section 5.5(b) of the Sale and Servicing Agreement (as to which
Owner Trustee shall cause Servicer to timely provide the related instructions).
(i) On each Payment Date, the Indenture Trustee (based on the information
contained in the Servicer's Report delivered on or before the related
Determination Date pursuant to Section 4.9 of the Sale and Servicing
Agreement) shall withdraw the funds on deposit in the Interest
Distribution Account with respect to the Collection Period preceding
such Payment Date and make distributions and payments in the
following order of priority:
(A) first, to the Noteholders of Class A Notes, the Accrued Class A Note
Interest; provided that if there are not sufficient funds available
to pay the entire amount of the Accrued Class A Note Interest, the
amounts available shall be applied to the payment of such interest on
the Class A Notes on a pro rata basis based upon the amount of
interest due on each Class of Class A Notes; and
(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.
(d) On each Payment Date, the Indenture Trustee (based on the information
contained in the Servicer's Report delivered on or before the related
Determination Date pursuant to Section 4.9 of the Sale and Servicing Agreement)
shall withdraw the funds on deposit in the Principal Distribution Account with
respect to the Collection Period preceding such Payment Date and make
distributions and payments in the following order of priority:
(i) first, to the Noteholders of 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
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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 are not
sufficient funds available to pay the principal amount of the
Outstanding Class A-4 Notes in full, the amounts available shall be
applied to the payment of principal on the Class A-4 Notes on a pro
rata basis;
(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, 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, Owner
Trustee shall deliver to Indenture Trustee an Opinion of Counsel, acceptable to
Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), Indenture Trustee shall not in any way be
held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any loss on any Eligible Investment included therein except for
losses attributable to Indenture Trustee's failure to make payments on such
Eligible Investments issued
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by Indenture Trustee, in its commercial capacity as principal obligor and not as
trustee, in accordance with their terms.
(c) If (i) investment directions shall not have been given for any funds
on deposit in the Trust Accounts to Indenture Trustee by 11:00 a.m. Eastern Time
(or such other time as may be agreed by Owner Trustee, Servicer and Indenture
Trustee) on any Business Day; (ii) a Default or Event of Default shall have
occurred and be continuing with respect to the Notes but the Notes shall not
have been declared due and payable pursuant to Section 5.2, or (iii) if such
Notes shall have been declared due and payable following an Event of Default,
amounts collected or receivable from the Trust Estate are being applied in
accordance with Section 5.5 as if there had not been such a declaration; then
Indenture Trustee shall, to the fullest extent practicable, invest and reinvest
funds in the Trust Accounts in one or more Eligible Investments in accordance
with the standing instructions most recently given by the Servicer. Indenture
Trustee shall not be liable for losses in respect of such investments in
Eligible Investments that comply with the requirements of the Basic Documents.
SECTION 8.4 Release of Trust Estate. (a) Subject to the payment of its fees
and expenses pursuant to Section 6.7, Indenture Trustee may, and when required
by the provisions of this Indenture shall, execute instruments to release
property from the Lien of this Indenture or any other Basic Document, or convey
Indenture Trustee's interest in the same, in a manner and under circumstances
that are not inconsistent with the provisions of this Indenture or such other
document. No party relying upon an instrument executed by Indenture Trustee as
provided in this Article VIII shall be bound to ascertain Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any moneys.
(b) Indenture Trustee shall, at such time as there are no Notes
outstanding and all sums due Indenture Trustee pursuant to Section 6.7 have been
paid, release any remaining portion of the Trust Estate that secured the Notes
from the Lien of this Indenture and release to Owner Trustee or any other Person
entitled thereto any funds then on deposit in the Trust Accounts. Indenture
Trustee shall release property from the Lien of this Indenture pursuant to this
Section 8.4(b) only upon receipt of an Issuer Request accompanied by an
Officer's Certificate, an Opinion of Counsel and (if required by the TIA)
Independent Certificates in accordance with TIA (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) Servicer in accordance with Section 3.2 of the Sale
and Servicing Agreement, and (ii) to Servicer in accordance with Section 4.7 of
the Sale and Servicing Agreement.
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SECTION 8.5 Opinion of Counsel. Indenture Trustee shall receive at least
seven days' notice when requested by Owner Trustee to take any action pursuant
to Section 8.4(a), accompanied by copies of any instruments involved, and
Indenture Trustee may also require as a condition to such action, an Opinion of
Counsel, in form and substance satisfactory to Indenture Trustee, stating the
legal effect of any such action, outlining the steps required to complete the
same, and concluding that all conditions precedent to the taking of such action
have been complied with and such action will not materially and adversely impair
the security for the Notes or the rights of the Noteholders in contravention of
the provisions of this Indenture; provided that such Opinion of Counsel shall
not be required to express an opinion as to the fair value of the Trust Estate.
Counsel rendering any such opinion may rely, without independent investigation,
on the accuracy and validity of any certificate or other instrument delivered to
Indenture Trustee in connection with any such action.
SECTION 8.6 Reserve Account. On or prior to the Closing Date, the Owner
Trustee will establish or cause to be established, in the name of the Indenture
Trustee, for the benefit of the Noteholders and the Certificateholder, an
Eligible Deposit Account (the "Reserve Account"), being a designation clearly
indicating that funds on deposit therein are held for the benefit of the
Noteholders and the Certificateholder, which Eligible Deposit Account shall be
established and maintained with the Indenture Trustee or its designees.
(b) Owner Trustee, on behalf of itself and its successors and assigns, and
solely for the purpose of providing for payment of the distributions provided
for in Section 5.5 of the Sale and Servicing Agreement, hereby grants a security
interest in and pledges to Indenture Trustee and its successors and assigns, as
agent for the benefit of the Noteholders and the Certificateholder, all of its
right, title and interest in and to the Reserve Account, subject, however, to
the limitations set forth in this Indenture, and all proceeds of the foregoing,
including all securities, investments, general intangibles, financial assets and
investment property from time to time credited to and any security entitlement
to the Reserve Account; and
(c) Owner Trustee hereby grants a security interest and pledges to
Indenture Trustee and its successors and assigns as agent for the benefit of the
Owner Trustee, the Noteholders and the Certificateholder, the Reserve Account
Deposit and all proceeds thereof; and solely for the purpose of providing for
payment of the distributions provided for in Section 5.5 of the Sale and
Servicing Agreement (all of the foregoing, subject to the limitations set forth
in this Section 8.6, the "Reserve Account Property"), to have and to hold all
the aforesaid property, rights and privileges unto Indenture Trustee, its
successors and assigns, in trust for the uses and purposes, and subject to the
terms and provisions, set forth in this Section 8.6. Indenture Trustee hereby
acknowledges such transfer and accepts the trust hereunder and shall hold and
distribute the Reserve Account Property in accordance with the terms and
provisions of this Section 8.6.
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(d) Indenture Trustee shall, at the written direction of Servicer, direct
the Securities Intermediary to invest funds on deposit in the Reserve Account in
Eligible Investments selected by Servicer and confirmed in writing by Servicer
to Indenture Trustee; provided that it is understood and agreed that none of
Indenture Trustee, Securities Intermediary or Owner Trustee shall be liable for
any loss arising from such investment in Eligible Investments. Funds on deposit
in the Reserve Account shall be invested in Eligible Investments that will
mature so that all such funds will be available at the close of business on the
Business Day preceding the next Deposit Date; provided that to the extent
permitted by the Rating Agencies following written request by Servicer, funds on
deposit in the Reserve Account may be invested in Eligible Investments that
mature later than such Deposit Date. Funds deposited in the Reserve Account on a
Deposit Date upon the maturity of any Eligible Investments are not required to
be (but may be) invested overnight.
Owner Trustee will treat the funds, Eligible Investments and other assets
in the Reserve Account as its own for federal, state and local income tax and
franchise tax purposes and will report on its tax returns all income, gain and
loss from the Reserve Account.
(e) The Securities Intermediary hereby expressly agrees with the Indenture
Trustee that: (i) all matters relating to the Reserve Account shall be governed
by the laws of the State of New York; (ii) all Eligible Investments held by the
Securities Intermediary on behalf of the Indenture Trustee in the Reserve
Account shall be treated as "financial assets" (as defined in Article 8 of the
New York Uniform Commercial Code; (iii) the Securities Intermediary will treat
the Indenture Trustee as entitled to exercise the rights comprising the
investments or financial assets credited to the Reserve Account; (iv) the
financial assets credited to the Reserve Account shall not be registered in the
name of, payable to the order of, or specially indorsed to the Indenture
Trustee; and (v) the Securities Intermediary will not agree to comply with
entitlement orders originated by any Person with respect to the investments or
financial assets held in the Reserve Account other than the Indenture Trustee.
(f) The Reserve Account shall be under the sole custody and control of
Indenture Trustee. If, at any time, the Reserve Account ceases to be an Eligible
Deposit Account, the Owner Trustee shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating Agency may
consent) establish or cause to be established a new Reserve Account as an
Eligible Deposit Account and shall transfer or cause to be transferred any cash
and/or any investments that are in the existing account which is no longer an
Eligible Deposit Account to such new Reserve Account.
(g) With respect to the Reserve Account Property, Servicer, Owner Trustee
and the Indenture Trustee agree that the Reserve Account Deposit and all other
funds
53
and Reserve Account Property shall be delivered to Indenture Trustee or its
designee for credit to the Reserve Account. In addition:
(i) any Reserve Account Property that constitutes Physical
Property shall be delivered to Indenture Trustee or its designee in
accordance with paragraph (a) of the definition of "Delivery" and shall be
held, pending maturity or disposition, solely by Indenture Trustee;
(ii) any Reserve Account Property that is a book entry security
held through the Federal Reserve System pursuant to Federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by Indenture Trustee or
its designee, pending maturity or disposition, through continued book entry
registration of such Reserve Account Property as described in such
paragraph; and
(iii) any Reserve Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by clause
(ii) above shall be delivered to Indenture Trustee or its designee in
accordance with paragraph (c) of the definition of "Delivery" and shall be
maintained by Indenture Trustee or such designee acting solely for
Indenture Trustee or such designee, pending maturity or disposition,
through continued registration of Indenture Trustee's (or its designee's)
ownership of such security.
Effective upon the crediting of any Reserve Account Property to the Reserve
Account, the Owner Trustee shall be deemed to have represented that it has
purchased such Reserve Account Property for value, in good faith and without
notice of any adverse claim thereto.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders. Without
the consent of the Holders of any Notes but with prior written notice to the
Rating Agencies by Owner Trustee, as evidenced to Indenture Trustee, Owner
Trustee and Indenture Trustee, when authorized by an Owner Trustee Order, at any
time and from time to time, may enter into one or more indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as in
force at the date of the execution thereof), in form satisfactory to Indenture
Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the Lien of this Indenture, or better to assure, convey and
confirm
54
unto Indenture Trustee any property subject or required to be subjected to
the Lien of this Indenture, or to subject to the Lien of this Indenture
additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to Owner Trustee, and the assumption
by any such successor of the covenants of Owner Trustee herein and in the
Notes contained;
(iii) to add to the covenants of Owner Trustee, for the benefit of
the Holders of the Notes, or to surrender any right or power herein
conferred upon Owner Trustee;
(iv) to convey, transfer, assign, mortgage or pledge any property
to or with Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any
other provision herein or in any supplemental indenture or to make any
other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; provided that such action shall
not materially and adversely affect the interests of the Holders of the
Notes;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI;
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification
of this Indenture under the TIA or under any similar federal statute
hereafter enacted and to add to this Indenture such other provisions as may
be expressly required by the TIA; or
(viii) (A) to add, modify or eliminate such provisions of the
Indenture as may be necessary or advisable in order to enable all or a
portion of the Trust to qualify as, and to permit an election to be made to
cause all or a portion of the Trust to be treated as, a "financial asset
securitization investment trust" under the Code, and (B) in connection with
any such election, to modify or eliminate existing provisions set forth in
this Indenture relating to the intended federal income tax treatment of the
Notes or Certificates and the Trust in the absence of the election; it
being a condition
55
to any such amendment that the Rating Agency Condition shall have been
satisfied; and
(ix) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable (a) the transfer to Owner Trustee
of all or any portion of the Receivables to be recognized as a sale under
GAAP by Depositor to Owner Trustee, (b) the Trust to avoid becoming a
member of Depositor's consolidated group under GAAP or (c) M&I Bank or any
of its Affiliates to otherwise comply with or obtain more favorable
treatment under any law or regulation or any accounting rule or principle;
it being a condition to any such amendment that the Rating Agency Condition
shall have been satisfied.
Indenture Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
Owner Trustee and Indenture Trustee, when authorized by an Issuer Order,
may, also without the consent of any of the Holders of the Notes but with prior
written notice to the Rating Agencies by Owner Trustee, as evidenced to
Indenture Trustee, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Holders of the Notes under this Indenture; provided
that such action shall not adversely affect in any material respect the
interests of any Noteholder.
SECTION 9.2 Supplemental Indentures with Consent of Noteholders. Owner
Trustee and Indenture Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies and with the consent of the Holders of
not less than a majority of the Outstanding Amount of the Notes, by Act of such
Holders delivered to Owner Trustee and Indenture Trustee, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Holders of
the Notes under this Indenture; provided that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Note affected
thereby:
(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
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institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as provided in
Article V, to the payment of any such amount due on the Notes on or after
the respective due dates thereof (or, in the case of redemption, on or
after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the Notes
or the Controlling Note Class, the consent of the Holders of which is
required for any such supplemental indenture, or the consent of the Holders
of which is required for any waiver of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences
provided for in this Indenture;
(iii) modify or alter (x) the provisions of the proviso as to the
definition of the term "Outstanding" or (y) the definition of "Controlling
Note Class";
(iv) reduce the percentage of the Outstanding Amount of the Notes
or Controlling Note Class required to direct Indenture Trustee to direct
Owner Trustee to sell or liquidate the Trust Estate pursuant to Section
5.4;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified or
waived without the consent of the Holder of each Outstanding Note affected
thereby;
(vi) modify any of the provisions of this Indenture in such manner
as to affect the calculation of the amount of any payment of interest or
principal due on any Note on any Payment Date (including the calculation of
any of the individual components of such calculation) or to affect the
rights of the Holders of Notes to the benefit of any provisions for the
mandatory redemption of the Notes contained herein; or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the Lien of this Indenture with respect to any part of the
Trust Estate or, except as otherwise permitted or contemplated herein or in
the Basic Documents, terminate the Lien of this Indenture on any property
at any time subject hereto or deprive the Holder of any Note of the
security provided by the Lien of this Indenture.
Indenture Trustee may determine whether or not any Notes would be affected
by any supplemental indenture and any such determination shall be conclusive
upon the Holders of all Notes, whether theretofore or thereafter authenticated
and
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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.
Promptly after the execution by Owner Trustee 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
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, Indenture Trustee shall be entitled to receive, and subject
to Sections 6.1 and 6.2, shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects Indenture
Trustee's own rights, duties, liabilities or immunities under this Indenture or
otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of
Indenture Trustee, Owner Trustee and the Holders of the Notes shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity With Trust Indenture Act. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in effect
so long as this Indenture shall then be qualified under the Trust Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by Indenture Trustee shall,
bear a
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notation furnished by Owner Trustee as to any matter provided for in such
supplemental indenture. If Owner Trustee shall so determine, new Notes so
modified as to conform, in the opinion of Owner Trustee, to any such
supplemental indenture may be prepared and executed by Owner Trustee and
authenticated and delivered by Indenture Trustee in exchange for Outstanding
Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. The Notes are subject to redemption in whole, but
not in part, at the direction of Servicer pursuant to Section 9.1(a) of the Sale
and Servicing Agreement, on any Payment Date on which Servicer exercises its
option to purchase the Trust Estate pursuant to said Section 9.1(a), for a
purchase price equal to the Redemption Price; provided that Owner Trustee has
available funds sufficient to pay the Redemption Price. Servicer or Owner
Trustee shall furnish the Rating Agencies notice of such redemption. If the
Notes are to be redeemed pursuant to this Section 10.1, Servicer or Owner
Trustee shall furnish notice of such election to Indenture Trustee not later
than 25 days prior to the Redemption Date and Owner Trustee shall deposit with
Indenture Trustee in the Note Distribution Account the Redemption Price of the
Notes to be redeemed whereupon all such Notes shall be due and payable on the
Redemption Date upon the furnishing of a notice complying with Section 10.2 to
each Holder of the Notes.
SECTION 10.2 Form of Redemption Notice. Notice of redemption under Section
10.1 shall be given by Indenture Trustee by facsimile or by first-class mail,
postage prepaid, transmitted or mailed prior to the applicable Redemption Date
to each Holder of Notes, as of the close of business on the Record Date
preceding the applicable Redemption Date, at such Holder's address appearing in
the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such
Redemption Date is not applicable and that payments shall be made only upon
presentation and surrender of such Notes and the place where such Notes are to
be surrendered for payment of the Redemption Price (which shall be the office or
agency of Owner Trustee to be maintained as provided in Section 3.2); and
(iv) that interest on the Notes shall cease to accrue on the
Redemption Date.
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Notice of redemption of the Notes shall be given by Indenture Trustee in
the name and at the expense of Owner Trustee. Failure to give notice of
redemption, or any defect therein, to any Holder of any Note shall not impair
or affect the validity of the redemption of such Note.
SECTION 10.3 Notes Payable on Redemption Date. The Notes to be redeemed
shall, following notice of redemption as required by Section 10.2 (in the case
of redemption pursuant to Section 10.1), on the Redemption Date become due and
payable at the Redemption Price and (unless Owner Trustee shall default in the
payment of the Redemption Price) no interest shall accrue on the Redemption
Price for any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc. (a) Upon any
application or request by Owner Trustee to Indenture Trustee to take any action
under any provision of this Indenture, Owner Trustee shall furnish to Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with, (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and (iii)
(if required by the TIA) an Independent Certificate from a firm of certified
public accountants meeting the applicable requirements of this Section, 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
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(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property
or securities with Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the Lien of this
Indenture, Owner Trustee shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture, furnish to Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days of
such deposit) to Owner Trustee of the Collateral or other property or
securities to be so deposited.
(ii) Whenever Owner Trustee is required to furnish to Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i), Owner Trustee
shall also deliver to Indenture Trustee an Independent Certificate as to
the same matters, if the fair value to Owner Trustee of the securities to
be so deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then-current fiscal
year of Owner Trustee, as set forth in the certificates delivered pursuant
to clause (i) and this clause (ii), is 10% or more of the Outstanding
Amount of the Notes, but such a certificate need not be furnished with
respect to any securities so deposited, if the fair value thereof to Owner
Trustee as set forth in the related Officer's Certificate is less than
$25,000 or less than one percent of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Purchased
Receivables or Defaulted Receivables, whenever any property or securities
are to be released from the Lien of this Indenture, Owner Trustee shall
also furnish to Indenture Trustee an Officer's Certificate certifying or
stating the opinion of each person signing such certificate as to the fair
value (within 90 days of such release) of the property or securities
proposed to be released and stating that in the opinion of such person the
proposed release will not impair the security under this Indenture in
contravention of the provisions hereof.
(iv) Whenever Owner Trustee is required to furnish to Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (iii), Owner Trustee
shall also furnish to Indenture Trustee an Independent Certificate as to
the same matters if the fair value of the property or securities and of all
other property other than Purchased Receivables and Defaulted Receivables,
or securities released from the Lien of this Indenture since the
commencement of the then current calendar year, as set forth in the
certificates required by clause (iii) and this clause (iv), equals 10% or
more of the Outstanding Amount of the
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Notes, but such certificate need not be furnished in the case of any
release of property or securities if the fair value thereof as set forth in
the related Officer's Certificate is less than $25,000 or less than one
percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section, Owner Trustee 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 Owner Trustee may be
based, insofar as it relates to legal matters, upon an opinion of counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the opinion with respect to the matters upon which his or her certificate
or opinion is based are erroneous. Any such certificate of an Authorized Officer
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of Servicer, Depositor, Administrator or Owner Trustee, stating that the
information with respect to such factual matters is in the possession of
Servicer, Depositor, Administrator or Owner Trustee, 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 Owner Trustee
shall deliver any document as a condition of the granting of such application,
or as evidence of Owner Trustee's compliance with any term hereof, it is
intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such
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certificate or report (as the case may be), of the facts and opinions stated in
such document shall in such case be conditions precedent to the right of Owner
Trustee to have such application granted or to the sufficiency of such
certificate or report. The foregoing shall not, however, be construed to affect
Indenture Trustee's right to rely upon the truth and accuracy of any statement
or opinion contained in any such document as provided in Article VI.
SECTION 11.3 Acts of Noteholders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in person
or by agents duly appointed in writing; and except as herein otherwise expressly
provided such action shall become effective when such instrument or instruments
are delivered to Indenture Trustee, and, where it is hereby expressly required,
to Owner Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Noteholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of Indenture Trustee and Owner Trustee, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any customary manner of Indenture
Trustee.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of
every Note issued upon the registration thereof or in exchange therefor or
in lieu thereof, in respect of anything done, omitted or suffered to be
done by Indenture Trustee or Owner Trustee in reliance thereon, whether or
not notation of such action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Owner Trustee and Rating
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
to be made upon, given or furnished to or filed with:
(a) Indenture Trustee by any Noteholder, Administrator or Owner Trustee
shall be sufficient for every purpose hereunder if personally delivered,
delivered by overnight courier or mailed certified mail, return receipt
requested and shall be
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deemed to have been duly given upon receipt to Indenture Trustee at its
Corporate Trust Office, or
(b) Owner Trustee by Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if personally delivered, delivered by
overnight courier or mailed certified mail, return receipt requested and shall
be deemed to have been duly given upon receipt to Owner Trustee addressed to:
M&I Auto Loan Trust 2001-1, in care of Bankers Trust (Delaware), 0000 Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, with a copy to Administrator at M&I
Xxxxxxxx & Xxxxxx Bank, 000 Xxxxx Xxxxx Xxxxxx XX0, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxx, or at any other address previously furnished in
writing to Indenture Trustee by Owner Trustee or Administrator. Owner Trustee
shall promptly transmit any notice received by it from the Noteholders to
Indenture Trustee.
Notices required to be given to the Rating Agencies by Owner Trustee,
Indenture Trustee or Owner Trustee shall be in writing, personally delivered,
delivered by overnight courier or mailed certified mail, return receipt
requested to (i) in the case of Moody's, at the following address: Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Asset Backed Securities Group and (ii) in the case of S&P, at the following
address: Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention of Asset Backed Surveillance Department; or as to each of
the foregoing, at such other address as shall be designated by written notice to
the other parties.
Notices required to be given to Indenture Trustee shall be in writing,
personally delivered by overnight courier or mailed certified mail, return
receipt requested to: Bank One, National Association, 1 Bank One Plaza, Mail
Code IL1-0481, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Global Corporate Trust
Services Division.
SECTION 11.5 Notices to Noteholders; Waiver. Where this Indenture provides
for notice to Noteholders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-
class, postage prepaid to each Noteholder affected by such event, at his address
as it appears on the Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Noteholders is given by mail, neither the failure to mail
such notice nor any defect in any notice so mailed to any particular Noteholder
shall affect the sufficiency of such notice with respect to other Noteholders,
and any notice that is mailed in the manner herein provided shall conclusively
be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Noteholders shall be filed with Indenture Trustee but such
filing shall not be a
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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 Owner Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies, failure to
give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute a Default or Event of
Default.
SECTION 11.6 Alternate Payment and Notice Provisions. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, Owner Trustee
may enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by Indenture Trustee or any Paying Agent to such Holder, that
is different from the methods provided for in this Indenture for such payments
or notices, provided that such methods are reasonable and consented to by
Indenture Trustee. Owner Trustee will furnish to the trustee a copy of each such
agreement and Indenture Trustee will cause payments to be made and notices to be
given in accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and agreements in this
Indenture and the Notes by Owner Trustee shall bind its successors and assigns,
whether so expressed or not. All agreements of Indenture Trustee in this
Indenture shall bind its successors.
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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 as if made on the date on which nominally due, and no
interest shall accrue for the period from and after any such nominal date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and
the same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to
be effected by Owner Trustee and at its expense accompanied by an Opinion
of Counsel delivered to the Indenture Trustee (which may be counsel to
Owner Trustee or any other counsel reasonably acceptable to Indenture
Trustee) to the effect that such recording is necessary either for the
protection of the Noteholders or any other person secured hereunder or for
the enforcement of any right or remedy granted to Indenture Trustee under
this Indenture.
SECTION 11.16 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of Owner Trustee or Indenture
Trustee on the Notes or under this Indenture or any certificate or other
writing delivered in connection herewith or therewith, against (i)
Depositor, (ii) Indenture Trustee or Owner Trustee in its individual
capacity, (iii) any owner of a beneficial interest in
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Owner Trustee, (iv) any partner, owner, member, beneficiary, agent,
officer, director, employee or agent of Depositor, Indenture Trustee or
Owner Trustee in its individual capacity as such, (v) or any holder of a
beneficial interest in Depositor, Owner Trustee or Indenture Trustee or of
any successor or assign of Depositor, Indenture Trustee or Owner Trustee in
its individual capacity as such, except as any such Person may have
expressly agreed (it being understood that Indenture Trustee and Owner
Trustee have no such obligations in their individual capacity) and except
that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing
to such entity. For all purposes of this Indenture, in the performance of
any duties or obligations of Owner Trustee hereunder, Owner Trustee shall
be subject to, and entitled to the benefits of, the terms and provisions of
Article VI, VII and VIII of the Trust Agreement.
(b) In furtherance of and not in derogation of the foregoing, to the
extent Depositor enters into other securitization transactions, each
Noteholder, by accepting a Note, acknowledges and agrees that it shall have
no right, title or interest in or to any assets or interests therein of
Depositor (other than the Trust Property and Reserve Account relating to
this transaction) conveyed or purported to be conveyed by Depositor 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 Depositor or any other Person owned by Depositor, 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 Depositor or any other Person owned by Depositor, 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 Depositor 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 Depositor or any other Person owned by
Depositor), 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
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terms of this Section 11.16(b) may be enforced by an action for specific
performance. The provisions of this Section 11.16(b) shall be for the third
party benefit of those entitled to rely thereon and shall survive the
termination of this Agreement.
SECTION 11.17 No Petition. Indenture Trustee and M&I Bank, by entering
into this Indenture, and each Noteholder, by accepting a Note, hereby
covenant and agree that they will not at any time institute against
Depositor or the Trust, or join in any institution against Depositor or the
Trust of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States
Federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture or any of the Basic
Documents.
SECTION 11.18 Inspection. Owner Trustee agrees that, on reasonable
prior notice, it will permit any representative of Indenture Trustee,
during Owner Trustee's normal business hours, to examine all the books of
account, records, reports, and other papers of Owner Trustee, to make
copies and extracts therefrom, to cause such books to be audited by
Independent certified public accountants, and to discuss Owner Trustee's
affairs, finances and accounts with Owner Trustee's officers, employees,
and independent certified public accountants, all at such reasonable times
and as often as may be reasonably requested. Indenture Trustee shall and
shall cause its representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
applications for confidential treatment are unavailing) and except to the
extent that Indenture Trustee may reasonably determine that such disclosure
is consistent with its obligations hereunder.
SECTION 11.19 Confidential Information. Any Holder, by its acceptance
of a Note, shall be deemed to have agreed to keep any information obtained
by it pursuant to Section 4.12 of the Sale and Servicing Agreement
confidential and not to use such information for any other purpose, except
as required by applicable law.
SECTION 11.20 Limitation of Liability. It is expressly understood and
agreed by and between the parties hereto (i) that this Agreement is
executed and delivered by Bankers Trust (Delaware), not in its individual
capacity but solely as Owner Trustee under the Trust Agreement dated as of
August 30, 2001 with Bond Securitization, L.L.C. and M&I Xxxxxxxx & Xxxxxx
Bank (the "Trust Agreement") in the exercise of the power and authority
conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Owner
Trustee are not personal representations, undertakings and agreements of
Bankers Trust (Delaware), but are binding only on the trust estate created
pursuant to the Trust Agreement, (iii) nothing contained herein shall be
construed as creating any liability on Bankers Trust (Delaware),
individually or personally, to perform any covenant of the Owner Trustee
either expressed or implied contained herein, all such
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liability, if any, being expressly waived by the parties hereto and by any
person claiming by, through or under any such party, and (iv) under no
circumstances shall Bankers Trust (Delaware) be personally liable for the
payment of any indebtedness or expense of the Owner Trustee or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Owner Trustee under this Agreement.
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IN WITNESS WHEREOF, M&I Bank, Owner Trustee and Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above written.
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as Owner Trustee of M&I Auto
Loan Trust 2001-1
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
S-1
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Indenture Trustee
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
S-2
M&I XXXXXXXX & ILSLEY BANK, as Servicer
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
S-3
EXHIBIT A-1
REGISTERED $82,000,000
No. R-1 CUSIP NO. 00000XXX0
ISIN NO. U55255PAA184
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
M&I AUTO LOAN TRUST 2001-1
3.51% CLASS A-1 ASSET BACKED NOTES
M&I Auto Loan Trust 2001-1, a trust existing under the laws of the
State of Delaware (herein referred to as the "Trust"), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum
of EIGHTY-TWO MILLION DOLLARS ($82,000,000) payable on each Payment Date in an
amount equal to the aggregate amount, if any, payable to Noteholders of Class
A-1 Notes on such Payment Date from the Principal Distribution Account in
respect of principal on the Class A-1 Notes pursuant to Section 3.1 of the
Indenture dated as of August 30, 2001 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), among Bank
One, National Association, a national banking association, as Indenture Trustee
(in such capacity the "Indenture Trustee"), Bankers Trust (Delaware), a Delaware
banking corporation, not in its individual capacity but solely as owner trustee
of the Trust (the "Owner Trustee"), and M&I Xxxxxxxx & Xxxxxx Bank, as the
Servicer ("M&I Bank"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the August 20, 2002, Payment
Date (the "Class A-1 Final Scheduled Payment Date"). Capitalized terms used but
not defined herein are defined in Appendix X to the Sale and Servicing
Agreement, dated as of August 30, 2001, among M&I Bank, Bond Securitization,
L.L.C., as the depositor (the "Depositor"), the Owner Trustee and the Indenture
Trustee (the
1
"Sale and Servicing Agreement"), which also contains rules as to construction
that shall be applicable herein.
The Owner Trustee shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the previous Payment Date on which interest has been
paid (or, in the case of the initial Payment Date, from the Closing Date) to but
excluding such Payment Date. Interest will be computed on the basis of actual
days elapsed and a 360-day year. Such principal of and interest on this Note
shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Owner
Trustee with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed
pursuant to Section 2.13 of the Indenture by the Authenticating Agent whose name
appears below by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
2
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: August 30, 2001
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as Owner
Trustee of M&I Auto Loan Trust 2001-1
By: _________________________________
Authorized Officer
3
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Notes designated above and referred to in
the within-mentioned Indenture.
Date: August 30, 2001
BANK ONE, NATIONAL ASSOCIATION, 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 Trust,
designated as its 3.51% Class A-1 Asset Backed Notes (the "Class A-1 Notes")
which, together with the Trust's 3.89% Class A-2 Asset Backed Notes (the "Class
A-2 Notes"), 4.49% Class A-3 Asset Backed Notes (the "Class A-3 Notes"), 4.97%
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
5.88% Class B Asset Backed Notes (the "Class B Notes" and, together with the
Class A Notes and the Class B Notes, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Trust, the Indenture Trustee and the Noteholders. The Notes
are subject to all terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-1 Notes are senior in right of payment to the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes and the Class B Notes, each as and to the extent
provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the twentieth
day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing October 22, 2001. All principal payments on
the Class A-1 Notes shall be made pro rata to the Class A-1 Noteholders entitled
thereto.
As described on the face hereof, the entire unpaid principal amount of
this Note shall be due and payable on the Class A-1 Final Scheduled Payment
Date. Notwithstanding the foregoing, if an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class of Notes may declare all the Notes to be immediately due
and payable, by a notice in writing to Owner Trustee (and to the Indenture
Trustee if given by Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class A-1 Notes will be made in accordance with the
provisions of the Indenture.
Payments of interest on this Note on each Payment Date, together with
the installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee
5
and except for the final installment of principal payable with respect to such
Note on a Payment Date or on the Final Scheduled Payment Date for such Class
(and except for the Redemption Price for any Note called for redemption pursuant
to Section 10.1(a) of the Indenture) which shall be payable as provided below.
The funds represented by any such checks returned undelivered shall be held in
accordance with Section 3.3 of the Indenture. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes shall be due and payable, if not
previously paid, on the date on which an Event of Default shall have occurred
and be continuing, if Indenture Trustee or the Holders of the Notes representing
not less than a majority of the Outstanding Amount of the Controlling Note Class
have declared the Notes to be immediately due and payable in the manner provided
in Section 5.2 of the Indenture and, in such event, all principal payments on
each class of Notes shall be made pro rata to the Noteholders of such class
entitled thereto. Indenture Trustee shall notify the Person in whose name a Note
is registered at the close of business on the Record Date preceding the Payment
Date on which Indenture Trustee expects that the final installment of principal
of and interest on such Note will be paid. Such notice shall be mailed or
transmitted by facsimile prior to such final Payment Date and shall specify that
such final installment will be payable only upon presentation and surrender of
such Note and shall specify the place where such Note may be presented and
surrendered for payment of such installment. Notices in connection with
redemptions of Notes shall be mailed to Noteholders as provided in Section 10.2
of the Indenture.
The Owner Trustee shall pay interest on overdue installments of
interest at the Class A-1 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and the Class B Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Owner Trustee pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Owner Trustee or the Indenture
6
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Trust, (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Trust or
the Indenture Trustee or of any successor or assign of the Indenture Trustee or
the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Trust for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to
the extent Depositor 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
Depositor (other than the Trust Estate and Reserve Account relating to this
transaction) conveyed or purported to be conveyed by Depositor 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 Depositor or any other Person owned
by Depositor, 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 Depositor or any other Person owned by Depositor, 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 Depositor 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
Depositor or any other Person owned by Depositor), including the payment of
post-petition interest on such other obligations and liabilities. This
subordination agreement shall be deemed a subordination
7
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 Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Owner Trustee has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness secured by the
Trust Estate. Each Noteholder, by its acceptance of a Note (and each Note Owner
by its acceptance of a beneficial interest in a Note), will be deemed to agree
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note,
the Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Owner Trustee, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of
all Noteholders adversely affected) the Owner Trustee and the Indenture Trustee
to enter into one or more supplemental indentures without the consent of the
Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of the Outstanding Amount or of the Controlling Note Class, on
behalf of all Noteholders, to waive compliance by the Owner Trustee with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder of this Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Owner Trustee", as used in this Note, includes any successor
to the Owner Trustee under the Indenture.
8
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Owner Trustee,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Each Noteholder or Note Owner expressly understands and agrees (i) that
this Note is executed and delivered by Bankers Trust (Delaware), not in its
individual capacity but solely as Owner Trustee under the Trust Agreement dated
as of August 30, 2001 with Bond Securitization, L.L.C. and M&I Xxxxxxxx & Ilsley
Bank (the "Trust Agreement") in the exercise of the power and authority
conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Owner Trustee
are not personal representations, undertakings and agreements of Bankers Trust
(Delaware), but are binding only on the trust estate created pursuant to the
Trust Agreement, (iii) nothing contained herein shall be construed as creating
any liability on Bankers Trust (Delaware), individually or personally, to
perform any covenant of the Owner Trustee either expressed or implied contained
herein, all such liability, if any, being expressly waived by the Noteholder or
Note Owner and by any person claiming by, through or under any such Noteholder
or Note Owner, and (iv) under no circumstances shall Bankers Trust (Delaware) be
personally liable for the payment of any indebtedness or expense of the Owner
Trustee or be liable for the payment of any indebtedness or expense of the Owner
Trustee or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Owner Trustee
under this Note.
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
REGISTERED $90,000,000
No. R-1 CUSIP NO. 00000XXX0
ISIN NO. US55255PAB67
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTOR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
M&I AUTO LOAN TRUST 2001-1
3.89% CLASS A-2 ASSET BACKED NOTES
M&I Auto Loan Trust 2001-1, a trust existing under the laws of the
State of Delaware (herein referred to as the "Trust"), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum
of NINETY MILLION DOLLARS ($90,000,000) payable on each Payment Date in an
amount equal to the aggregate amount, if any, payable to Noteholders of Class
A-2 Notes on such Payment Date from the Principal Distribution Account in
respect of principal on the Class A-2 Notes pursuant to Section 3.1 of the
Indenture dated as of August 30, 2001 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), among
Bankers Trust (Delaware), not in its individual capacity but solely as owner
trustee of the Trust (the "Owner Trustee"), Bank One, National Association, a
national banking association, as Indenture Trustee (in such capacity the
"Indenture Trustee") and M&I Xxxxxxxx & Xxxxxx Bank, as Servicer ("M&I Bank");
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on the November 20, 2004, Payment Date (the "Class A-2 Final
Scheduled Payment Date"). Capitalized terms used but not defined herein are
defined in Appendix X to the Sale and Servicing Agreement, dated as of August
30, 2001, among M&I Bank, Bond Securitization, L.L.C., as the depositor (the
"Depositor"), the Owner Trustee and the Indenture Trustee (the "Sale and
Servicing Agreement"), which also contains rules as to construction that shall
be applicable herein.
1
The Owner Trustee shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Distribution Date), subject to certain limitations
contained in Section 3.1 of the Indenture. Interest on this Note will accrue for
each Distribution Date from and including the twentieth day of the calendar
month immediately preceding such Payment Date (or, in the case of the initial
Payment Date, from the Closing Date) to but excluding the twentieth day of the
following calendar month. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. Such principal of and interest on this Note shall
be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Owner
Trustee with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed
pursuant to Section 2.13 of the Indenture by the Authenticating Agent whose name
appears below by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
2
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: August 30, 2001
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as Owner
Trustee of M&I Auto Loan Trust 2001-1
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: August 30, 2001
BANK ONE, NATIONAL ASSOCIATION, 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 Trust,
designated as its 3.89% Class A-2 Asset Backed Notes (the "Class A-2 Notes")
which, together with the Trust's 3.51% Class A-1 Asset Backed Notes (the "Class
A-1 Notes"), 4.49% Class A-3 Asset Backed Notes (the "Class A-3 Notes") and
4.97% Class A-4 Asset Backed Notes (the "Class A-4 Notes" and, together with the
Class A-1 Notes, the Class A-3 Notes and the Class A-4 Notes, the "Class A
Notes") and 5.88% Class B Asset Backed Notes (the "Class B Notes" and, together
with the Class A Notes, the "Notes"), are issued under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Trust, the
Indenture Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class A-2 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-2 Notes are subordinated in right of payment to the Class A-1 Notes and are
senior in right of payment to the Class A-3 Notes, the Class A-4 Notes and the
Class B Notes each as and to the extent provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the twentieth
day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing October 22, 2001. All principal payments on
the Class A-2 Notes shall be made pro rata to the Class A-2 Noteholders entitled
thereto.
As described on the face hereof, the entire unpaid principal amount of
this Note shall be due and payable on the Class A-2 Final Scheduled Payment
Date. Notwithstanding the foregoing, if an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class may declare all the Notes to be immediately due and
payable, by a notice in writing to the Owner Trustee (and to the Indenture
Trustee if given by Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class A-2 Notes will be made in accordance with the
provisions of the Indenture.
Payments of interest on this Note on each Payment Date, together with
the installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee
5
and except for the final installment of principal payable with respect to such
Note on a Payment Date or on the Final Scheduled Payment Date for such Class
(and except for the Redemption Price for any Note called for redemption pursuant
to Section 10.1(a) of the Indenture) which shall be payable as provided below.
The funds represented by any such checks returned undelivered shall be held in
accordance with Section 3.3 of the Indenture. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes shall be due and payable, if not
previously paid, on the date on which an Event of Default shall have occurred
and be continuing, if Indenture Trustee or the Holders of the Notes representing
not less than a majority of the Outstanding Amount of the Controlling Note Class
have declared the Notes to be immediately due and payable in the manner provided
in Section 5.2 of the Indenture and, in such event, all principal payments on
each class of Notes shall be made pro rata to the Noteholders of such class
entitled thereto. Indenture Trustee shall notify the Person in whose name a Note
is registered at the close of business on the Record Date preceding the Payment
Date on which Indenture Trustee expects that the final installment of principal
of and interest on such Note will be paid. Such notice shall be mailed or
transmitted by facsimile prior to such final Payment Date and shall specify that
such final installment will be payable only upon presentation and surrender of
such Note and shall specify the place where such Note may be presented and
surrendered for payment of such installment. Notices in connection with
redemptions of Notes shall be mailed to Noteholders as provided in Section 10.2
of the Indenture.
The Owner Trustee shall pay interest on overdue installments of
interest at the Class A-2 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and the Class B Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Owner Trustee pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Owner Trustee or the Indenture
6
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Trust, (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Trust or
the Indenture Trustee or of any successor or assign of the Indenture Trustee or
the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Trust for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to
the extent Depositor enters into other securitization transactions, each
Noteholder or Note Owner, by its acceptance of a Note or, in the case of a Note
Owner, a beneficial interest in a Note, acknowledges and agrees that it shall
have no right, title or interest in or to any assets or interests therein of
Seller (other than the Trust Estate and Reserve Account relating to this
transaction) conveyed or purported to be conveyed by Depositor 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 Depositor or any other Person owned
by Depositor, 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 Depositor or any other Person owned by Depositor, 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 Depositor 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
Depositor or any other Person owned by Depositor), including the payment of
post-petition interest on such other obligations and liabilities. This
subordination agreement shall be deemed a subordination
7
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 Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Owner Trustee has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness secured by the
Trust Estate. Each Noteholder, by its acceptance of a Note (and each Note Owner
by its acceptance of a beneficial interest in a Note), will be deemed to agree
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note,
the Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Owner Trustee, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of
all Noteholders adversely affected) the Owner Trustee and the Indenture Trustee
to enter into one or more supplemental indentures without the consent of the
Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of the Outstanding Amount or of the Controlling Note Class, on
behalf of all Noteholders, to waive compliance by the Owner Trustee with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder of this Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Owner Trustee", as used in this Note, includes any successor
to the Owner Trustee under the Indenture.
8
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Owner Trustee,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Each Noteholder or Note Owner expressly understands and agrees (i) that
this Note is executed and delivered by Bankers Trust (Delaware), not in its
individual capacity but solely as Owner Trustee under the Trust Agreement dated
as of August 30, 2001 with Bond Securitization, L.L.C. and M&I Xxxxxxxx & Xxxxxx
Bank (the "Trust Agreement") in the exercise of the power and authority
conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Owner Trustee
are not personal representations, undertakings and agreements of Bankers Trust
(Delaware), but are binding only on the trust estate created pursuant to the
Trust Agreement, (iii) nothing contained herein shall be construed as creating
any liability on Bankers Trust (Delaware), individually or personally, to
perform any covenant of the Owner Trustee either expressed or implied contained
herein, all such liability, if any, being expressly waived by the Noteholder or
Note Owner and by any person claiming by, through or under any such Noteholder
or Note Owner, and (iv) under no circumstances shall Bankers Trust (Delaware) be
personally liable for the payment of any indebtedness or expense of the Owner
Trustee or be liable for the payment of any indebtedness or expense of the Owner
Trustee or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Owner Trustee
under this Note.
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
REGISTERED $112,000,000
No. R-1 CUSIP NO. 00000XXX0
ISIN NO. US55255PAC41
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
M&I AUTO LOAN TRUST 2001-1
4.49% CLASS A-3 ASSET BACKED NOTES
M&I Auto Loan Trust 2001-1, a trust existing under the laws of the
State of Delaware (herein referred to as the "Trust"), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum
of ONE-HUNDRED TWELVE MILLION DOLLARS ($112,000,000) payable on each Payment
Date in an amount equal to the aggregate amount, if any, payable to Noteholders
of Class A-3 Notes on such Payment Date from the Principal Distribution Account
in respect of principal on the Class A-3 Notes pursuant to Section 3.1 of the
Indenture dated as of August 30, 2001 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), among
Bankers Trust (Delaware), not in its individual capacity but solely as owner
trustee of the Trust (the "Owner Trustee"), Bank One, National Association, a
national banking association, as Indenture Trustee (in such capacity the
"Indenture Trustee") and M&I Xxxxxxxx & Ilsley Bank, as Servicer ("M&I Bank");
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on the April 20, 2006, Payment Date (the "Class A-3 Final
Scheduled Payment Date"). Capitalized terms used but not defined herein are
defined in Appendix X to the Sale and Servicing Agreement, dated as of August
30, 2001, among M&I Bank, Bond Securitization, L.L.C., as the depositor (the
"Depositor"), the Owner Trustee and the Indenture Trustee (the "Sale and
1
Servicing Agreement"), which also contains rules as to construction that shall
be applicable herein.
The Owner Trustee shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the twentieth day of the calendar month immediately
preceding such Payment Date (or, in the case of the initial Payment Date, from
the Closing Date) to but excluding the twentieth day of the following calendar
month. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Owner
Trustee with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed
pursuant to Section 2.13 of the Indenture by the Authenticating Agent whose name
appears below by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
2
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: August 30, 2001
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as Owner
Trustee of M&I Auto Loan Trust 2001-1
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: August 30, 2001
BANK ONE, NATIONAL ASSOCIATION, 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 Trust,
designated as its 4.49% Class A-3 Asset Backed Notes (the "Class A-3 Notes")
which, together with the Trust's 3.51% Class A-1 Asset Backed Notes (the "Class
A-1 Notes"), 3.89% Class A-2 Asset Backed Notes (the "Class A-2 Notes"), 4.97%
Class A-4 Asset Backed Notes (the "Class A-4 Notes" and, together with the Class
A-1 Notes, the Class A-2 Notes and the Class A-4 Notes, the "Class A Notes") and
5.88% Class B Asset Backed Notes (the "Class B Notes" and, together with the
Class A Notes, the "Notes"), are issued under the Indenture, to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Owner Trustee, the
Indenture Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class A-3 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-3 Notes are subordinated in right of payment to the Class A-1 Notes and the
Class A-2 Notes and are senior in right of payment to the Class A-4 Notes and
the Class B Notes, each as and to the extent provided in the Indenture.
Principal of the Class A-3 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the twentieth
day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing October 22, 2001. All principal payments on
the Class A-3 Notes shall be made pro rata to the Class A-3 Noteholders entitled
hereto.
As described on the face hereof, the entire unpaid principal amount of
this Note shall be due and payable on the Class A-3 Final Scheduled Payment
Date. Notwithstanding the foregoing, if an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class may declare all the Notes to be immediately due and
payable, by a notice in writing to the Owner Trustee (and to the Indenture
Trustee if given by Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class A-3 Notes will be made in accordance with the
provisions of the Indenture.
Payments of interest on this Note on each Payment Date, together with
the installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee
5
and except for the final installment of principal payable with respect to such
Note on a Payment Date or on the Final Scheduled Payment Date for such Class
(and except for the Redemption Price for any Note called for redemption pursuant
to Section 10.1(a) of the Indenture) which shall be payable as provided below.
The funds represented by any such checks returned undelivered shall be held in
accordance with Section 3.3 of the Indenture. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes shall be due and payable, if not
previously paid, on the date on which an Event of Default shall have occurred
and be continuing, if Indenture Trustee or the Holders of the Notes representing
not less than a majority of the Outstanding Amount of the Controlling Note Class
have declared the Notes to be immediately due and payable in the manner provided
in Section 5.2 of the Indenture and, in such event, all principal payments on
each class of Notes shall be made pro rata to the Noteholders of such class
entitled thereto. Indenture Trustee shall notify the Person in whose name a Note
is registered at the close of business on the Record Date preceding the Payment
Date on which Indenture Trustee expects that the final installment of principal
of and interest on such Note will be paid. Such notice shall be mailed or
transmitted by facsimile prior to such final Payment Date and shall specify that
such final installment will be payable only upon presentation and surrender of
such Note and shall specify the place where such Note may be presented and
surrendered for payment of such installment. Notices in connection with
redemptions of Notes shall be mailed to Noteholders as provided in Section 10.2
of the Indenture.
The Owner Trustee shall pay interest on overdue installments of
interest at the Class A-3 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and the Class B Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Owner Trustee pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Owner Trustee or the Indenture
6
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Trust, (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Trust or
the Indenture Trustee or of any successor or assign of the Indenture Trustee or
the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Trust for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to
the extent Depositor 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
Depositor (other than the Trust Estate and Reserve Account relating to this
transaction) conveyed or purported to be conveyed by Depositor 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 Depositor or any other Person owned
by Depositor, 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 Depositor or any other Person owned by Depositor, 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 Depositor 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
Depositor or any other Person owned by Depositor), including the payment of
post-petition interest on such other obligations and liabilities. This
subordination agreement shall be deemed a subordination
7
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 Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Owner Trustee has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness secured by the
Trust Estate. Each Noteholder, by its acceptance of a Note (and each Note Owner
by its acceptance of a beneficial interest in a Note), will be deemed to agree
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note,
the Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Owner Trustee, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of
all Noteholders adversely affected) the Owner Trustee and the Indenture Trustee
to enter into one or more Supplemental indentures without the consent of the
Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of the Outstanding Amount or of the Controlling Note Class, on
behalf of all Noteholders, to waive compliance by the Owner Trustee with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder of this Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Owner Trustee", as used in this Note, includes any successor
to the Owner Trustee under the Indenture.
8
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Owner Trustee,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Each Noteholder or Note Owner expressly understands and agrees (i) that
this Note is executed and delivered by Bankers Trust (Delaware), not in its
individual capacity but solely as Owner Trustee under the Trust Agreement dated
as of August 30, 2001 with Bond Securitization, L.L.C. and M&I Xxxxxxxx & Xxxxxx
Bank (the "Trust Agreement") in the exercise of the power and authority
conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Owner Trustee
are not personal representations, undertakings and agreements of Bankers Trust
(Delaware), but are binding only on the trust estate created pursuant to the
Trust Agreement, (iii) nothing contained herein shall be construed as creating
any liability on Bankers Trust (Delaware), individually or personally, to
perform any covenant of the Owner Trustee either expressed or implied contained
herein, all such liability, if any, being expressly waived by the Noteholder or
Note Owner and by any person claiming by, through or under any such Noteholder
or Note Owner, and (iv) under no circumstances shall Bankers Trust (Delaware) be
personally liable for the payment of any indebtedness or expense of the Owner
Trustee or be liable for the payment of any indebtedness or expense of the Owner
Trustee or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Owner Trustee
under this Note.
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
REGISTERED $52,590,000
No. R-1 CUSIP NO. 00000XXX0
ISIN No. US55255PAD24
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
M&I AUTO LOAN TRUST 2001-1
4.97% CLASS A-4 ASSET BACKED NOTES
M&I Auto Loan Trust 2001-1, a trust existing under the laws of the State of
Delaware (herein referred to as the "Trust"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of
FIFTY-TWO MILLION FIVE HUNDRED NINETY THOUSAND DOLLARS ($52,590,000) payable on
each Payment Date in an amount equal to the aggregate amount, if any, payable to
Noteholders of Class A-4 Notes on such Payment Date from the Principal
Distribution Account in respect of principal on the Class A-4 Notes pursuant to
Section 3.1 of the Indenture dated as of August 30, 2001 (as from time to time
amended, supplemented or otherwise modified and in effect, the "Indenture"),
among Bankers Trust (Delaware), not in its individual capacity but solely as
owner trustee of the Trust (the "Owner Trustee"), Bank One, National
Association, a national banking association, as Indenture Trustee (in such
capacity the "Indenture Trustee") and M&I Xxxxxxxx & Ilsley Bank, as Servicer
("M&I Bank"); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the March 20, 2007, Payment Date (the "Class
A-4 Final Scheduled Payment Date"). Capitalized terms used but not defined
herein are defined in Appendix X to the Sale and Servicing Agreement, dated as
of August 30, 2001, among M&I Bank, Bond Securitization, L.L.C., as the
depositor (the "Depositor"), the Owner Trustee and the Indenture Trustee (the
"Sale and Servicing Agreement"), which also contains rules as to construction
that shall be applicable herein.
1
The Owner Trustee shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the twentieth day of the calendar month immediately
preceding such Payment Date (or, in the case of the initial Payment Date, from
the Closing Date) to but excluding the twentieth day of the following calendar
month. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Owner
Trustee with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed
pursuant to Section 2.13 of the Indenture by the Authenticating Agent whose name
appears below by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
2
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: August 30, 2001
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as Owner
Trustee of M&I Auto Loan Trust 2001-1
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: August 30, 2001
BANK ONE, NATIONAL ASSOCIATION, 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 Trust,
designated as its 4.97% Class A-4 Asset Backed Notes (the "Class A-4 Notes")
which, together with the Trust's 3.51% Class A-1 Asset Backed Notes (the "Class
A-1 Notes"), 3.89% Class A-2 Asset Backed Notes (the "Class A-2 Notes"), 4.49%
Class A-3 Asset Backed Notes (the "Class A-3 Notes" and, together with the Class
A-1 Notes, the Class A-2 Notes and the Class A-4 Notes, the "Class A Notes") and
5.88% Class B Asset Backed Notes (the "Class B Notes" and, together with the
Class A Notes and the Class B Notes, the "Notes"), are issued under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Owner Trustee, the Indenture Trustee and the Noteholders. The
Notes are subject to all terms of the Indenture.
The Class A-4 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
A-4 Notes are subordinated in right of payment to the Class A-1 Notes, the Class
A-2 Notes and the Class A-3 Notes and are senior in right of payment to the
Class B Notes, each as and to the extent provided in the Indenture.
Principal of the Class A-4 Notes will be payable on each Payment Date
in an amount described on the face hereof. "Payment Date" means the twentieth
day of each month, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing November 15, 2001. All principal payments on
the Class A-4 Notes shall be made pro rata to the Class A-4 Noteholders entitled
thereto.
As described on the face hereof, the entire unpaid principal amount of
this Note shall be due and payable on the Class A-4 Final Scheduled Payment
Date. Notwithstanding the foregoing, if an Event of Default should occur and be
continuing, then and in every such case the Indenture Trustee or the Holders of
Notes representing not less than a majority of the Outstanding Amount of the
Controlling Note Class may declare all the Notes to be immediately due and
payable, by a notice in writing to Owner Trustee (and to the Indenture Trustee
if given by Noteholders), and upon any such declaration the unpaid principal
amount of such Notes, together with accrued and unpaid interest thereon through
the date of acceleration, shall become immediately due and payable in the manner
provided in Section 5.2 of the Indenture. In such event, all payments on the
Class A-1 Notes will be made in accordance with the provisions of the Indenture.
Payments of interest on this Note on each Payment Date, together with
the installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee
5
and except for the final installment of principal payable with respect to such
Note on a Payment Date or on the Final Scheduled Payment Date for such Class
(and except for the Redemption Price for any Note called for redemption pursuant
to Section 10.1(a) of the Indenture) which shall be payable as provided below.
The funds represented by any such checks returned undelivered shall be held in
accordance with Section 3.3 of the Indenture. Notwithstanding the foregoing, the
entire unpaid principal amount of the Notes shall be due and payable, if not
previously paid, on the date on which an Event of Default shall have occurred
and be continuing, if Indenture Trustee or the Holders of the Notes representing
not less than a majority of the Outstanding Amount of the Controlling Note Class
have declared the Notes to be immediately due and payable in the manner provided
in Section 5.2 of the Indenture and, in such event, all principal payments on
each class of Notes shall be made pro rata to the Noteholders of such class
entitled thereto. Indenture Trustee shall notify the Person in whose name a Note
is registered at the close of business on the Record Date preceding the Payment
Date on which Indenture Trustee expects that the final installment of principal
of and interest on such Note will be paid. Such notice shall be mailed or
transmitted by facsimile prior to such final Payment Date and shall specify that
such final installment will be payable only upon presentation and surrender of
such Note and shall specify the place where such Note may be presented and
surrendered for payment of such installment. Notices in connection with
redemptions of Notes shall be mailed to Noteholders as provided in Section 10.2
of the Indenture.
The Owner Trustee shall pay interest on overdue installments of
interest at the Class A-4 Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and the Class B Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Owner Trustee pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Owner Trustee or the Indenture
6
Trustee on the Notes or under the Indenture or any certificate or other writing
delivered in connection therewith, against (i) the Indenture Trustee or the
Owner Trustee, each in its individual capacity, (ii) any owner of a beneficial
interest in the Trust, (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, or (iv) any holder of a beneficial interest in the Trust,
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee, each in its individual capacity, except as any such Person
may have expressly agreed and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Noteholder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Trust for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to
the extent Depositor 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
Depositor (other than the Trust Estate and Reserve Account relating to this
transaction) conveyed or purported to be conveyed by Depositor 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 Depositor or any other Person owned
by Depositor, 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 Depositor or any other Person owned by Depositor, 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 Depositor 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
Depositor or any other Person owned by Depositor), including the payment of
post-petition interest on such other obligations and liabilities. This
subordination agreement shall be deemed a subordination
7
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 Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Owner Trustee has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness secured by the
Trust Estate. Each Noteholder, by its acceptance of a Note (and each Note Owner
by its acceptance of a beneficial interest in a Note), will be deemed to agree
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note,
the Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Owner Trustee, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of
all Noteholders adversely affected) the Owner Trustee and the Indenture Trustee
to enter into one or more supplemental indentures without the consent of the
Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of Outstanding Amount or of the Controlling Note Class, on behalf of
all Noteholders, to waive compliance by the Owner Trustee with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder of this Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Owner Trustee", as used in this Note, includes any successor
to the Owner Trustee under the Indenture.
8
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
THE NOTES ARE ISSUABLE ONLY IN REGISTERED FORM IN DENOMINATIONS AS
PROVIDED IN THE INDENTURE, SUBJECT TO CERTAIN LIMITATIONS THEREIN SET FORTH.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Owner Trustee,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Each Noteholder or Note Owner expressly understands and agrees (i) that
this Note is executed and delivered by Bankers Trust (Delaware), not in its
individual capacity but solely as Owner Trustee under the Trust Agreement dated
as of August 30, 2001 with Bond Securitization, L.L.C. and M&I Xxxxxxxx & Xxxxxx
Bank (the "Trust Agreement") in the exercise of the power and authority
conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Owner Trustee
are not personal representations, undertakings and agreements of Bankers Trust
(Delaware), but are binding only on the trust estate created pursuant to the
Trust Agreement, (iii) nothing contained herein shall be construed as creating
any liability on Bankers Trust (Delaware), individually or personally, to
perform any covenant of the Owner Trustee either expressed or implied contained
herein, all such liability, if any, being expressly waived by the Noteholder or
Note Owner and by any person claiming by, through or under any such Noteholder
or Note Owner, and (iv) under no circumstances shall Bankers Trust (Delaware) be
personally liable for the payment of any indebtedness or expense of the Owner
Trustee or be liable for the payment of any indebtedness or expense of the Owner
Trustee or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Owner Trustee
under this Note.
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
REGISTERED $10,410,000
No. R-1 CUSIP NO. 00000XXX0
ISIN NO. US55255PAE07
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
M&I AUTO LOAN TRUST 2001-1
5.88% CLASS B ASSET BACKED NOTES
M&I Auto Loan Trust 2001-1, a trust existing under the laws of the State of
Delaware (herein referred to as the "Trust"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of TEN
MILLION FOUR HUNDRED TEN THOUSAND DOLLARS ($10,410,000) payable on each Payment
Date in an amount equal to the aggregate amount, if any, payable to Noteholders
of Class B Notes on such Payment Date from the Principal Distribution Account in
respect of principal on the Class B Notes pursuant to Section 3.1 of the
Indenture dated as of August 30, 2001 (as from time to time amended,
supplemented or otherwise modified and in effect, the "Indenture"), among
Bankers Trust (Delaware), not in its individual capacity but solely as owner
trustee of the Trust (the "Owner Trustee"), Bank One, National Association, a
national banking association, as Indenture Trustee (in such capacity the
"Indenture Trustee") and M&I Xxxxxxxx Xxxxxx Bank, as Servicer ("M&I Bank");
provided, however, that the entire unpaid principal amount of this Note shall be
due and payable on the earlier of the June 20, 2008, Payment Date (the "Class B
Final Scheduled Payment Date") and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. Capitalized terms used but not defined herein
are defined in Appendix X to the Sale and Servicing Agreement, dated as of
August 30, 2001, among M&I Bank, Bond Securitization, L.L.C., as the depositor
1
(the "Depositor"), the Owner Trustee and the Indenture Trustee (the "Sale and
Servicing Agreement"), which also contains rules as to construction that shall
be applicable herein.
The Owner Trustee shall pay interest on this Note at the rate per annum
shown above on each Payment Date until the principal of this Note is paid, or
made available for payment, on the principal amount of this Note outstanding on
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), subject to certain limitations contained in
Section 3.1 of the Indenture. Interest on this Note will accrue for each Payment
Date from and including the twentieth day of the calendar month immediately
preceding such Payment Date (or, in the case of the initial Payment Date, from
the Closing Date) to but excluding the twentieth day of the following calendar
month. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Owner
Trustee with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed
pursuant to Section 2.13 of the Indenture by the Authenticating Agent whose name
appears below by manual signature, this Note shall not be entitled to any
benefit under the Indenture referred to on the reverse hereof, or be valid or
obligatory for any purpose.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
2
IN WITNESS WHEREOF, the Owner Trustee has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date set
forth below.
Date: August 30, 2001
BANKERS TRUST (DELAWARE),
not in its individual
capacity but solely as
Owner Trustee of M&I Auto
Loan Trust 2001-1
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: August 30, 2001
BANK ONE, NATIONAL ASSOCIATION, 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 Trust,
designated as its 5.88% Class B Asset Backed Notes (the "Class B Notes") which,
together with the Trust's 3.51% Class A-1 Asset Backed Notes (the "Class A-1
Notes"), 3.89% Class A-2 Asset Backed Notes (the "Class A-2 Notes"), 4.49% Class
A-3 Asset Backed Notes (the "Class A-3 Notes") and 4.97% Class A-4 Asset Backed
Notes (the "Class A-4 Notes" and, together with the Class A-1 Notes, the Class
A-2 Notes and the Class A-3 Notes, the "Class A Notes", and, together with the
Class B Notes, the "Notes"), are issued under the Indenture, to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Owner Trustee, the
Indenture Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class B Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture. The Class
B Notes are subordinated in right of payment to the Class A Notes, each as and
to the extent provided in the Indenture.
Principal of the Class B Notes will be payable on each Payment Date in
an amount described on the face hereof. "Payment Date" means the twentieth day
of each month, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing October 22, 2001. All principal payments on the Class B
Notes shall be made pro rata to the Class B Noteholders entitled thereto.
As described on the face hereof, the entire unpaid principal amount of
this Note shall be due and payable on the earlier of the Class B Final Scheduled
Payment Date or the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. Notwithstanding the foregoing, if an Event of Default should occur
and be continuing, then and in every such case the Indenture Trustee or the
Holders of Notes representing not less than a majority of the Outstanding Amount
of the Controlling Note Class may declare all the Notes to be immediately due
and payable, by a notice in writing to Owner Trustee (and to the Indenture
Trustee if given by Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable in the manner provided in Section 5.2 of the Indenture. In such event,
all payments on the Class B Notes will be made in accordance with the provisions
of the Indenture.
Payments of interest on this Note on each Payment Date, together with
the installment of principal, if any, to the extent not in full payment of this
Note, shall be paid to the Person in whose name such Note (or one or more
Predecessor Notes) is registered on the Record Date, by check mailed
first-class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Definitive Notes have been
issued pursuant to Section 2.12 of the Indenture, with respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Payment
5
Date or on the Final Scheduled Payment Date for such Class (and except for the
Redemption Price for any Note called for redemption pursuant to Section 10.1(a)
of the Indenture) which shall be payable as provided below. The funds
represented by any such checks returned undelivered shall be held in accordance
with Section 3.3 of the Indenture. Notwithstanding the foregoing, the entire
unpaid principal amount of the Notes shall be due and payable, if not previously
paid, on the date on which an Event of Default shall have occurred and be
continuing, if Indenture Trustee or the Holders of the Notes representing not
less than a majority of the Outstanding Amount of the Controlling Note Class of
Notes have declared the Notes to be immediately due and payable in the manner
provided in Section 5.2 of the Indenture and, in such event, all principal
payments on each class of Notes shall be made pro rata to the Noteholders of
such class entitled thereto. Indenture Trustee shall notify the Person in whose
name a Note is registered at the close of business on the Record Date preceding
the Payment Date on which Indenture Trustee expects that the final installment
of principal of and interest on such Note will be paid. Such notice shall be
mailed or transmitted by facsimile prior to such final Payment Date and shall
specify that such final installment will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such installment. Notices in connection
with redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2 of the Indenture.
The Owner Trustee shall pay interest on overdue installments of
interest at the Class B Interest Rate to the extent lawful.
As provided in the Indenture, the Class A Notes and the Class B Notes
may be redeemed, in whole but not in part, in the manner and to the extent
described in the Indenture and the Sale and Servicing Agreement.
The transfer of this Note is subject to the restrictions on transfer
specified on the face hereof and to the other limitations set forth in the
Indenture. Subject to the satisfaction of such restrictions and limitations, the
transfer of this Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by the
Owner Trustee pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Noteholder hereof or such Noteholder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, and thereupon one
or more new Notes of the same Class in authorized denominations and in the same
aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
6
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in its
individual capacity, (ii) any owner of a beneficial interest in the Trust, (iii)
any partner, owner, beneficiary, agent, officer, director or employee of the
Indenture Trustee or the Owner Trustee, each in its individual capacity, or (iv)
any holder of a beneficial interest in the Trust or the Indenture Trustee or of
any successor or assign of the Indenture Trustee or the Owner Trustee, each in
its individual capacity, except as any such Person may have expressly agreed and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity. Each Noteholder or Note Owner,
by its acceptance of a Note or, in the case of a Note Owner, a beneficial
interest in a Note, agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the
Noteholder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Trust for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Note.
In furtherance of and not in derogation of the foregoing paragraph, to
the extent Seller enters into other securitization transactions, each Noteholder
or Note Owner, by its acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, acknowledges and agrees that it shall have no
right, title or interest in or to any assets or interests therein of Depositor
(other than the Trust Estate and Reserve Account relating to this transaction)
conveyed or purported to be conveyed by Depositor 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 Depositor or any other Person owned by
Depositor, 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 Depositor or any other Person owned by Depositor, 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 Depositor 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
Depositor or any other Person owned by Depositor), 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
7
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 Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the other Basic Documents.
The Owner Trustee has entered into the Indenture and this Note is
issued with the intention that, for federal, state and local income, and
franchise tax purposes, the Notes will qualify as indebtedness secured by the
Trust Estate. Each Noteholder, by its acceptance of a Note (and each Note Owner
by its acceptance of a beneficial interest in a Note), will be deemed to agree
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note,
the Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Owner Trustee, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits (with certain exceptions requiring the consent of
all Noteholders adversely affected) the Owner Trustee and the Indenture Trustee
to enter into one or more supplemental indentures without the consent of the
Noteholders provided certain conditions are satisfied. The Indenture also
contains provisions permitting the Noteholders of Notes evidencing specified
percentages of the Outstanding Amount or of the Controlling Note Class, on
behalf of all Noteholders, to waive compliance by the Owner Trustee with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Noteholder of this Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future Noteholders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note.
The term "Owner Trustee", as used in this Note, includes any successor
to the Owner Trustee under the Indenture.
8
The Owner Trustee is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
No reference herein to the Indenture, and no provision of this Note or
of the Indenture, shall alter or impair the obligation of the Owner Trustee,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Each Noteholder or Note Owner expressly understands and agrees (i) that
this Note is executed and delivered by Bankers Trust (Delaware), not in its
individual capacity but solely as Owner Trustee under the Trust Agreement dated
as of August 30, 2001 with Bond Securitization, L.L.C. and M&I Xxxxxxxx & Xxxxxx
Bank (the "Trust Agreement") in the exercise of the power and authority
conferred and vested in it as such Owner Trustee, (ii) each of the
representations, undertakings and agreements made herein by the Owner Trustee
are not personal representations, undertakings and agreements of Bankers Trust
(Delaware), but are binding only on the trust estate created pursuant to the
Trust Agreement, (iii) nothing contained herein shall be construed as creating
any liability on Bankers Trust (Delaware), individually or personally, to
perform any covenant of the Owner Trustee either expressed or implied contained
herein, all such liability, if any, being expressly waived by the Noteholder or
Note Owner and by any person claiming by, through or under any such Noteholder
or Note Owner, and (iv) under no circumstances shall Bankers Trust (Delaware) be
personally liable for the payment of any indebtedness or expense of the Owner
Trustee or be liable for the payment of any indebtedness or expense of the Owner
Trustee or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Owner Trustee
under this Note.
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
Bloomberg Data
[On file with the Registrant.]
C-1
