Exhibit 4.1
EXECUTION
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INDENTURE
between
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4,
as Issuer
and
U. S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
Dated as of June 1, 1998
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
Asset Backed Securities, Series 1998-4
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND
INCORPORATION BY REFERENCE
Section 1.01. Definitions................................................2
Section 1.02. Incorporation by Reference of Trust Indenture Act..........7
Section 1.03. Rules of Construction......................................7
ARTICLE II
THE NOTES
Section 2.01. Form.......................................................8
Section 2.02. Execution, Authentication, Delivery and Dating.............8
Section 2.03. Registration; Registration of Transfer and Exchange........9
Section 2.04. Mutilated, Destroyed, Lost or Stolen Notes................10
Section 2.05. Persons Deemed Owners.....................................11
Section 2.06. Payment of Principal and Interest; Defaulted Interest.....11
Section 2.07. Cancellation..............................................12
Section 2.08. Authentication of Notes...................................12
Section 2.10. Release of Collateral.....................................15
Section 2.11. Book-Entry Notes..........................................16
Section 2.12. Notices to Clearing Agency................................17
Section 2.13. Definitive Notes..........................................17
Section 2.14. Tax.......................................................17
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal and Interest.........................17
Section 3.02. Maintenance of Office or Agency...........................18
Section 3.03. Money for Payments To Be Held in Trust....................18
Section 3.04. Existence.................................................20
Section 3.05. Protection of Collateral..................................20
Section 3.06. Annual Opinions as to Collateral..........................20
Section 3.07. Performance of Obligations; Servicing of Home Loans.......21
Section 3.08. Negative Covenants........................................22
Section 3.09. Annual Statement as to Compliance.........................23
Section 3.10. Covenants of the Issuer...................................23
Section 3.11. Servicer's Obligations....................................23
Section 3.12. Restricted Payments.......................................23
Section 3.13. Treatment of Notes as Debt for Tax Purposes...............24
Section 3.14. Notice of Events of Default...............................24
Section 3.15. Further Instruments and Acts..............................24
ARTICLE IV
SATISFACTION AND
DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture...................24
Section 4.02. Application of Trust Money................................25
Section 4.03. Repayment of Moneys Held by Paying Agent..................25
ARTICLE V
REMEDIES
Section 5.01. Events of Default.........................................26
Section 5.02. Acceleration of Maturity; Rescission and Annulment........27
Section 5.03. Non-Priority Classes......................................28
Section 5.04. Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee..........................28
Section 5.05. Remedies; Priorities......................................30
Section 5.06. Optional Preservation of the Collateral...................31
Section 5.07. Limitation of Suits.......................................31
Section 5.08. Unconditional Rights of Noteholders To Receive
Principal and Interest....................................32
Section 5.09. Restoration of Rights and Remedies........................32
Section 5.10. Rights and Remedies Cumulative............................32
Section 5.11. Delay or Omission Not a Waiver............................32
Section 5.12. Control by Noteholders....................................33
Section 5.13. Waiver of Past Defaults...................................33
Section 5.14. Undertaking for Costs.....................................34
Section 5.15. Waiver of Stay or Extension Laws..........................34
Section 5.16. Action on Notes...........................................34
Section 5.17. Performance and Enforcement of Certain Obligations........34
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee...............................35
Section 6.02. Rights of Indenture Trustee...............................36
Section 6.03. Individual Rights of Indenture Trustee....................37
Section 6.04. Indenture Trustee's Disclaimer............................37
Section 6.05. Notice of Default.........................................37
Section 6.06. Reports by Indenture Trustee to Holders...................37
Section 6.07. Compensation and Indemnity................................37
Section 6.08. Replacement of Indenture Trustee..........................38
Section 6.09. Successor Indenture Trustee by Merger.....................39
Section 6.10. Appointment of Co-Indenture Trustee or Separate
Indenture Trustee.........................................39
Section 6.11. Eligibility; Disqualification.............................40
Section 6.12. Preferential Collection of Claims Against Issuer..........41
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders..................................41
Section 7.02. Preservation of Information; Communications to
Noteholders...............................................41
Section 7.03. Reports by Issuer.........................................41
Section 7.04. Reports by Indenture Trustee..............................42
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money.......................................42
Section 8.02. Payments and Distributions................................42
Section 8.03. [Reserved]................................................45
Section 8.04. Servicer's Monthly Statements.............................45
Section 8.05. Release of Collateral.....................................45
Section 8.06. Opinion of Counsel........................................46
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders....46
Section 9.02. Supplemental Indentures with Consent of Noteholders.......47
Section 9.03. Execution of Supplemental Indentures......................48
Section 9.04. Effect of Supplemental Indenture..........................49
Section 9.05. Conformity with Trust Indenture Act.......................49
Section 9.06. Reference in Notes to Supplemental Indentures.............49
Section 9.07. Amendments to Trust Agreement.............................49
ARTICLE X
REDEMPTION OF NOTES
Section 10.01. Redemption................................................50
Section 10.02. Form of Redemption Notice.................................50
Section 10.03. Notes Payable on Termination Date; Provision for
Payment of Indenture Trustee..............................50
ARTICLE XI
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions, etc.................51
Section 11.02. Form of Documents Delivered to Indenture Trustee..........52
Section 11.03. Acts of Noteholders.......................................53
Section 11.04. Notices, etc. to Indenture Trustee, Issuer and
Rating Agencies...........................................53
Section 11.05. Notices to Noteholders; Waiver............................54
Section 11.06. [Reserved]................................................54
Section 11.07. Conflict with Trust Indenture Act.........................54
Section 11.08. Effect of Headings and Table of Contents..................55
Section 11.09. Successors and Assigns....................................55
Section 11.10. Severability..............................................55
Section 11.11. Benefits of Indenture and Consent of Noteholders..........55
Section 11.12. Legal Holidays............................................55
Section 11.13. Governing Law.............................................55
Section 11.14. Counterparts..............................................55
Section 11.15. Recording of Indenture....................................55
Section 11.16. Issuer Obligations........................................55
Section 11.17. No Petition...............................................56
Section 11.18. Inspection................................................56
SCHEDULE I Schedule of Home Loans
EXHIBIT A Forms of Notes
INDENTURE dated as of June 1, 1998, between FIRSTPLUS Home Loan Owner
Trust 1998-4, a Delaware business trust (the "Issuer"), and U.S. Bank National
Association, a national banking association, as trustee and not in its
individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the holders of the Notes:
GRANTING CLAUSE
Subject to the terms of this Indenture, the Issuer hereby Grants to the
Indenture Trustee at the Closing Date, as Indenture Trustee for the benefit of
the holders of the Notes, all of the Issuer's right, title and interest in and
to: (i) the Trust Estate (as defined in the Sale and Servicing Agreement);
(ii) the Sale and Servicing Agreement (including the Issuer's right to cause
the Transferor and/or the Seller to repurchase Home Loans from the Issuer
under certain circumstances described therein); (iii) all present and future
claims, demands, causes of action and choses in action in respect of any or
all of the foregoing and all payments on or under and all proceeds of every
kind and nature whatsoever in respect of any or all of the foregoing,
including all proceeds of the conversion thereof, voluntary or involuntary,
into cash or other liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any
and every kind and other forms of obligations and receivables, instruments and
other property which at any time constitute all or part of or are included in
the proceeds of any of the foregoing; (iv) the Trust Accounts, all amounts and
property in the Trust Accounts from time to time, and the Security
Entitlements to all Financial Assets credited to the Trust Accounts from time
to time and (v) all other property of the Trust from time to time
(collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal
of and interest on, and any other amounts owing in respect of, the Notes,
equally and ratably without prejudice, priority or distinction, and to secure
compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the holders of
the Notes, acknowledges such Grant, accepts the trusts hereunder and agrees to
perform the duties required of it 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 Indenture Trustee agrees and acknowledges that
the Indenture Trustee's Home Loan Files will be held by the Custodian for the
benefit of the Indenture Trustee in Dallas, Texas. The Indenture Trustee
further agrees and acknowledges that each other item of Collateral that is
physically delivered to the Indenture Trustee will be held by the Indenture
Trustee in St. Xxxx, Minnesota. Subject to the conditions set forth in this
Indenture, on each Subsequent Transfer Date and pursuant to a Subsequent
Transfer Agreement, the Issuer shall Grant to the Indenture Trustee all of the
Issuer's right, title and interest of the Issuer in and to each Subsequent
Home Loan (including all interest and principal thereon received after the
related Cut-Off Date) identified on the schedule attached to the related
Subsequent Transfer Agreement and all items in the related Indenture Trustee's
Home Loan File.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. Except as otherwise specified herein or as the
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context may otherwise require, (i) capitalized terms used but not otherwise
defined herein have the respective meanings set forth in the Sale and
Servicing Agreement for all purposes of this Indenture and (ii) the following
terms have the respective meanings set forth below for all purposes of this
Indenture.
Act: The meaning specified in Section 11.03(a).
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Affiliate: With respect to any specified Person, any other Person
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controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Authorized Officer: With respect to the Issuer, any officer of the Owner
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Trustee who is authorized to act for the Owner Trustee in matters relating to
the Issuer and who is identified on the list of Authorized Officers delivered
by the Owner Trustee to the Indenture Trustee on the Closing Date (as such
list may be modified or supplemented from time to time thereafter) and, so
long as the Administration Agreement is in effect, any Vice President or more
senior officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified
on the list of Authorized Officers delivered by the Administrator to the
Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter).
Book-Entry Notes: A beneficial interest in any Class of Notes, ownership
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and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 2.10.
Certificate Depository Agreement: The meaning specified in Section 1.01
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of the Trust Agreement.
Certificate of Trust: The certificate of trust of the Issuer
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substantially in the form of Exhibit B to the Trust Agreement.
Collateral: The meaning specified in the Granting Clause of this
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Indenture.
Corporate Trust Office: The principal office of the Indenture Trustee at
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which at any particular time its corporate trust business shall be
administered, which office at date of execution of this Agreement is located
at 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000; Attention: Corporate
Trust Department, or at such other address as the Indenture Trustee may
designate from time to time by notice to the Noteholders and the Issuer, or
the principal corporate trust office of any successor Indenture Trustee at the
address designated by such successor Indenture Trustee by notice to the
Noteholders and the Issuer.
Default: Any occurrence that is, or with notice or the lapse of time or
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both would become, an Event of Default.
Definitive Notes: The meaning specified in Section 2.12.
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Depository Institution: Any depository institution or trust company,
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including the Indenture Trustee, that (a) is incorporated under the laws of
the United States of America or any State thereof, (b) is subject to
supervision and examination by federal or state banking authorities and (c)
has outstanding unsecured commercial paper or other short-term unsecured debt
obligations that are rated in the highest rating category by each Rating
Agency, or is otherwise acceptable to each Rating Agency.
Event of Default: As specified in Section 5.01.
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Executive Officer: With respect to any corporation, the Chief Executive
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Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary or the Treasurer
of such corporation; and with respect to any partnership, any general partner
thereof.
Grant: Mortgage, pledge, bargain, sell, warrant, alienate, remise,
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release, convey, assign, transfer, create, and xxxxx x xxxx upon and a
security interest in and right of set-off against, deposit, set over and
confirm pursuant to this Indenture. A Grant of the Collateral or of any other
agreement or instrument shall include all rights, powers and options (but none
of the obligations) of the granting party thereunder, including the immediate
and continuing right to claim for, collect, receive and give receipt for
principal and interest payments in respect of the Collateral and all other
moneys payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights
and options, to bring Proceedings in the name of the granting party or
otherwise, and generally to do and receive anything that the granting party is
or may be entitled to do or receive thereunder or with respect thereto.
Highest Priority Class Notes: Until the Class Principal Balances of all
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Classes of Senior Notes are reduced to zero and all sums payable to the
Holders of the Senior Notes have been paid in full, the Senior Notes; when the
Class Principal Balances of all Classes of Senior Notes have been reduced to
zero and all amounts payable to the Holders of the Senior Notes have been paid
in full, the Class M-1 Notes; when the Class Principal Balances of all Classes
of Senior Notes and the Class M-1 Notes have been reduced to zero and all sums
payable to the Holders of the Senior Notes and Class M-1 Notes have been paid
in full, the Class M-2 Notes.
Holder or Noteholder: The Person in whose name a Note is registered on
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the Note Register.
Indenture Trustee: U.S. Bank National Association, a national banking
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association, as Indenture Trustee under this Indenture acting on behalf of the
Noteholders, or any successor indenture trustee under this Indenture.
Independent: When used with respect to any specified Person, that such
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Person (a) is in fact independent of the Issuer, any other obligor on the
Notes, the Seller and any Affiliate of any of the foregoing Persons, (b) does
not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any Affiliate of
any of the foregoing Persons and (c) is not connected with the Issuer, any
such other obligor, the Seller or any Affiliate of any of the foregoing
Persons as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
Independent Certificate: A certificate or opinion to be delivered to the
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Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01, made by an
Independent appraiser or other expert appointed by an Issuer Order and
approved by the Indenture Trustee in the exercise of reasonable care, and such
opinion or certificate shall state that the signer has read the definition of
"Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
Issuer: FIRSTPLUS Home Loan Owner Trust 1998-4 until a successor replaces
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it and, thereafter, the successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the Notes.
Issuer Order and Issuer Request: A written order or request signed in the
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name of the Issuer by any one of its Authorized Officers and delivered to the
Indenture Trustee.
Majority Highest Priority Class Noteholders: On any date, Holders of
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Highest Priority Class Notes representing more than 50% of the Class Principal
Balance of the Highest Priority Class Notes then outstanding.
Maturity Date: With respect to each Class of Notes, the applicable
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maturity date set forth below:
Class Maturity Date
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X-0 Xxxxxxx 00, 0000
X-0 July 10, 2012
A-3 May 11, 2015
X-0 Xxxxx 00, 0000
X-0 January 10, 2018
X-0 Xxxxxx 00 0000
X-0 September 12, 2022
A-8 September 10, 2024
M-1 September 10, 2024
M-2 September 10, 2024
B-1 September 10, 2024
Non-Priority Class: As of any date of determination, any outstanding
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Class of Notes other than the Highest Priority Class Notes.
Note Depository Agreement: The agreement dated June 23, 1998, among the
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Issuer, the Administrator, the Indenture Trustee and The Depository Trust
Company, as the initial Clearing Agency, relating to the Book Entry Notes.
Note Owner: With respect to a Book-Entry Note, the Person who is the
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beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing
Agency).
Note Register and Note Registrar: The respective meanings specified in
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Section 2.03
Officer's Certificate: A certificate signed by any Authorized Officer of
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the Issuer or the Administrator, under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01, and
delivered to the Indenture Trustee.
Opinion of Counsel: One or more written opinions of counsel who may,
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except as otherwise expressly provided in this Indenture, be employees of or
counsel to the Issuer and who shall be satisfactory to the Indenture Trustee,
which opinion or opinions shall be addressed to the Indenture Trustee, as
Indenture Trustee, and shall comply with any applicable requirements of
Section 11.01 and shall be in form and substance satisfactory to the Indenture
Trustee.
Outstanding: With respect to any Note and as of the date of
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determination, any Note theretofore authenticated and delivered under this
Indenture except:
(i) Notes theretofore canceled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the related Noteholders
(provided, however, that if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
for such notice has been made, satisfactory to the Indenture Trustee);
and
(iii) Notes in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes
are held by a bona fide purchaser; provided, that in determining whether
the Holders of the requisite Outstanding Amount of the Notes have given
any request, demand, authorization, direction, notice, consent, or waiver
hereunder or under any Basic Document, Notes owned by the Issuer, any
other obligor upon the Notes, the Seller or any Affiliate of any of the
foregoing Persons shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Indenture Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent, or waiver, only Notes that the Indenture
Trustee knows to be so owned shall be so disregarded. Notes so owned that
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee the
pledgee's right so to act with respect to such Notes and that the pledgee
is not the Issuer, any other obligor upon the Notes, the Seller or any
Affiliate of any of the foregoing Persons.
Outstanding Amount: The aggregate of the Note Principal Balances of all
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Notes Outstanding at the date of determination.
Paying Agent: The Indenture Trustee or any other Person that meets the
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eligibility standards for the Indenture Trustee specified in Section 6.11 and
is authorized by the Issuer to make payments to and distributions from the
Note Payment Account, including payment of principal of or interest on the
Notes on behalf of the Issuer.
Predecessor Note: With respect to any particular Note, every previous
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Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.04 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
Proceeding: Any suit in equity, action at law or other judicial or
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administrative proceeding.
Rating Agency Condition: With respect to any action to which a Rating
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Agency Condition applies, that each Rating Agency shall have been given 10
days (or such shorter period as is acceptable to each Rating Agency) prior
notice thereof and that each of the Rating Agencies shall have notified the
Seller, the Servicer and the Issuer in writing that such action will not
result in a reduction or withdrawal of the then current rating of the Notes or
the Certificates.
Registered Holder: The Person in whose name a Note is registered on the
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Note Register on the applicable Record Date.
Sale and Servicing Agreement: The Sale and Servicing Agreement dated as
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of June 1, 1998, among the Issuer, FIRSTPLUS Investment Corporation, as
Seller, and, FIRSTPLUS FINANCIAL, INC., as Transferor and Servicer, and the
Indenture Trustee, as Indenture Trustee and Co-Owner Trustee, as such may be
amended or supplemented from time to time.
Schedule of Home Loans: The listing of the Home Loans set forth in
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Schedule A, as supplemented as of each Subsequent Transfer Date and as of any
date on which a Deleted Home Loan has been repurchased from the Trust or
substituted with a Qualified Substitute Home Loan pursuant to Section 3.05 of
the Sale and Servicing Agreement.
State: Any one of the 00 Xxxxxx xx xxx Xxxxxx Xxxxxx xx Xxxxxxx or the
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District of Columbia.
Termination Date: In the case of a redemption of the Notes pursuant to
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Section 10.01 or a payment to Noteholders pursuant to Section 10.03, the
Payment Date specified by the Transferor pursuant to Section 10.10.
Trust Indenture Act or TIA: The Trust Indenture Act of 1939 as in force
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on the date hereof, unless otherwise specifically provided.
Section 1.02. Incorporation by Reference of Trust Indenture Act.
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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.
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"indenture securities" means the Notes.
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"indenture security holder" means a Noteholder.
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"indenture to be qualified" means this Indenture.
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"indenture trustee" or "institutional trustee" means the Indenture
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Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in the
TIA, defined by TIA reference to another statute or defined by Commission rule
have the meaning assigned to them by such definitions.
Section 1.03 Rules of Construction. Unless the context otherwise requires:
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(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the plural
include the singular; and
(vi) any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented (as provided in such agreements) and includes (in the
case of agreements or instruments) references to all attachments thereto and
instruments incorporated therein; references to a Person are also to its
permitted successors and assigns.
ARTICLE II
THE NOTES
Section 2.01. Form. The Notes shall be designated as the "FIRSTPLUS Home
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Loan Owner Trust 1998-4 Asset Backed Notes". The Notes of each Class, in each
case together with the Indenture Trustee's certificate of authentication, shall
be in substantially the forms set forth in Exhibit A, 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 thereof. Any portion of the text of any Note may
be set forth on the reverse thereof, with an appropriate reference thereto on
the face of the Note.
The Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods, all as determined by the
officers executing such Notes, as evidenced by their execution of such Notes.
The terms of the Notes set forth in Exhibit A are part of the terms
of this Indenture.
Section 2.02. Execution, Authentication, Delivery and Dating. The Notes
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shall be executed on behalf of the Issuer by an Authorized Officer of the Owner
Trustee or the Administrator. 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 the Owner Trustee or the Administrator
shall bind the Issuer, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Notes or did not hold such offices at the date of such Notes.
Subject to the satisfaction of the conditions set forth in Section
2.08, the Indenture Trustee shall authenticate and deliver the Notes for
original issue in the aggregate principal amounts with respect to each Class
as specified below:
Class Aggregate Principal Amount
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A-1 $173,836,000
A-2 37,456,000
A-3 77,898,000
A-4 46,039,000
A-5 17,773,000
A-6 52,149,000
A-7 20,123,000
A-8 32,256,000
M-1 68,175,000
M-2 37,875,000
B-1 27,270,000
Each class of Notes outstanding at any time may not exceed such respective
amounts.
The Notes that are authenticated and delivered by the Indenture
Trustee to or upon the order of the Issuer on the Closing Date shall be dated
the Closing Date. All other Notes that are authenticated after the Closing
Date for any other purpose under the Indenture shall be dated the date of
their authentication. The Notes shall be issuable as registered Notes in the
minimum denominationS of, (i) in the case of the Class A-1, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class A-7 and Class A-8 Notes, $50,000
and integral multiples of $1,000 in excess thereof and, (ii) in the case of
the Class M-1, Class M-2 and Class B-1 Notes, $100,000 and integral multiples
of $1,000 in excess thereof, except that one Note of each Class may be issued
in any denomination in excess of the applicable minimum denomination.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the 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 2.03. Registration; Registration of Transfer and Exchange. The Issuer
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shall cause to be kept a register (the "Note Register") in which, subject to
such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee initially shall be the "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the duties
of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register, and the Indenture
Trustee shall have the right to inspect the Note Register at all reasonable
times and to obtain copies thereof, and the Indenture Trustee shall have the
right to rely upon a certificate executed on behalf of the Note Registrar by
an Executive Officer thereof as to the names and addresses of the Holders of
the Notes and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.02, the
Issuer shall execute, and the Indenture Trustee shall authenticate and the
Noteholder shall be entitled to obtain from the Indenture Trustee, in the name
of the designated transferee or transferees, one or more new Notes of the same
Class in any authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of the
same Class in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Issuer shall execute,
and the Indenture Trustee shall authenticate and the Noteholder shall be
entitled to obtain from the 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 the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Any Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument
of transfer in form satisfactory to the Indenture Trustee duly executed by,
the Holder thereof or such Holder's attorney duly authorized in writing, with
such signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Exchange Act.
No service charge shall be made to a Noteholder for any registration
of transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes, other
than exchanges pursuant to Section 2.04 or Section 9.06 not involving any
transfer.
The preceding provisions of this Section notwithstanding, the Issuer
shall not be required to make and the Note Registrar need not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to such
Note.
Section 2.04. Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
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mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the Indenture
Trustee harmless, then, in the absence of notice to the Issuer, the Note
Registrar or the Indenture Trustee that such Note has been acquired by a bona
fide purchaser, the Issuer shall execute, and upon its request the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note of the same
Class; provided, however, that if any such destroyed, lost or stolen Note, but
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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, the Issuer may pay such destroyed, lost or stolen Note when
so due or payable or upon the Termination Date without surrender thereof. If,
after the delivery of such replacement Note or payment of a destroyed, lost or
stolen Note pursuant to the proviso to the preceding sentence, a bona fide
purchaser of the original Note in lieu of which such replacement Note was
issued presents for payment such original Note, the Issuer and the Indenture
Trustee shall be entitled to recover such replacement Note (or such payment)
from the Person to whom it was delivered or any Person taking such replacement
Note from such Person to whom such replacement Note was delivered or any
assignee of such Person, except a bona fide purchaser, and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of
any loss, damage, cost or expense incurred by the Issuer or the Indenture
Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Holder of such Note of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.05. Persons Deemed Owners. Prior to due presentment for
---------------------
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuer, the Indenture Trustee or any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
Section 2.06. Payment of Principal and Interest; Defaulted Interest.
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(a) The Notes of each Class shall accrue interest at the Interest Rate
applicable thereto, as set forth in Exhibit A, and such interest shall be
payable on each Payment Date as specified therein, subject to Section 3.01.
With respect to each outstanding Class of LIBOR Securities, if any, the
Indenture Trustee shall determine LIBOR for each applicable Accrual Period
(other than the initial Accrual Period) on the second London Business Day prior
thereto. All interest payments on each Class of Notes shall be made PRO RATA to
the Noteholders of such Class entitled thereto. Any installment of interest or
principal payable on any Note shall be paid on the applicable Payment Date to
the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the Record Date (or, in the case of payment of Deferred Amounts,
to the Person in whose name such Note was most recently registered, if such
Note has previously been surrendered to the Indenture Trustee for final
payment) 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, except for the final installment of principal payable with respect to
such Note on a Payment Date or on the Maturity Date (and except for the
Termination Price ), which shall be payable as provided below. The funds
represented by any such checks returned undelivered shall be held in
accordance with Section 3.03.
(b) The principal of each Note shall be payable in installments on each
Payment Date as provided in the forms of the Notes set forth in Exhibit A.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
together with the amount of any Deferred Amounts in respect thereof of a Class
of Notes shall be due and payable, if not previously paid, on the earlier of
(i) the Maturity Date, (ii) the Termination Date or (iii) the date on which an
Event of Default shall have occurred and be continuing, if the Indenture
Trustee or the Majority Highest Priority Class Noteholders have declared the
Notes to be immediately due and payable in the manner provided in Section 5.02.
All principal payments on each Class of Notes shall be made PRO RATA to the
Noteholders of such Class entitled thereto. The 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 the Issuer expects that the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such final Payment
Date and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such installment. Notices
in connection with an early termination of the Notes as provided in Section
10.01 shall be mailed to Noteholders as provided in Section 10.02.
Section 2.07. Cancellation. All Notes surrendered for payment,
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registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee. The Issuer shall
deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange
for any Notes canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Order that they be destroyed or returned to it; provided, that such Issuer
Order is timely and the Notes have not been previously disposed of by the
Indenture Trustee.
Section 2.08. Authentication of Notes. (a) The Notes shall be
-----------------------
authenticated by the Indenture Trustee, upon Issuer Request and upon receipt by
the Indenture Trustee of the following:
(i) An Issuer Order authorizing the execution and authentication of
such Notes;
(ii) All of the items of Collateral that are to be delivered to the
Indenture Trustee or its designee;
(iii) An executed counterpart of the Trust Agreement;
(iv) A fair value certificate from the Servicer, as agent of the
Trust, pursuant to Section 2(a)(xi) of the Administration Agreement;
(v) Except to the extent provided in subsection (b) below, Opinions
of Counsel addressed to the Indenture Trustee to the effect that:
(A) the Issuer has been duly formed and is validly existing as
a business trust under the laws of the State of Delaware, and has
power, authority and legal right to execute and deliver this
Indenture, the Administration Agreement and the Sale and Servicing
Agreement;
(B) the issuance of the Notes has been duly and validly
authorized by the Issuer;
(C) the Notes, when executed and authenticated in accordance
with the provisions of this Indenture and delivered against payment
therefor, will be the legal, valid and binding obligations of the
Issuer pursuant to the terms of this Indenture and will be entitled
to the benefits of this Indenture, and will be enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent or preferential
conveyance and other similar laws of general application affecting
the rights of creditors generally and to general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(D) all instruments furnished to the Indenture Trustee as
conditions precedent to the authentication of the Notes by the
Indenture Trustee pursuant to the Indenture conform to the
requirements of this Indenture and constitute all the documents
required to be delivered hereunder for the Indenture Trustee to
authenticate the Notes;
(E) all conditions precedent provided for in this Indenture
relating to the authentication of the Notes have been complied with;
(F) assuming due authorization, execution and delivery thereof
by the Indenture Trustee, this Indenture has been duly executed and
delivered by Issuer and constitutes the legal, valid and binding
obligation of the Issuer, enforceable against the Issuer in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent or preferential
conveyance and other similar laws of general application affecting
the rights of creditors generally and to general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(G) The Issuer is not required to be registered under the
Investment Company Act of 1940, as amended;
(H) The Notes will be treated as indebtedness for federal
income tax purposes;
(I) The Issuer will not be characterized as an association (or
publicly traded partnership) taxable as a corporation;
(J) This Indenture has been duly qualified under the Trust
Indenture Act of 1939;
(K) The delivery by the Issuer to the Custodian, on behalf of
the Indenture Trustee, in the State of Texas of the Debt Instruments
pursuant to the Indenture will perfect the security interest in
favor of the Indenture Trustee under the Texas UCC in all right,
title and interest of the Issuer in such Debt Instruments and,
assuming the Indenture Trustee acquires its interest in such Debt
Instruments without knowledge that the same are subject to a
security interest (other than the security interest created by this
Indenture), Indenture Trustee will acquire such security interest in
such Debt Instruments free and clear of any prior lien of a kind
which may be perfected under Article 9 of the Texas UCC. The Debt
Instruments constitute "instruments" under Article 9 of the New York
UCC and Article 9 of the Texas UCC; and
(L) The security interest in the portion of the Trust Estate
constituting "proceeds" (as defined in Section 9.306(a) of the Texas
UCC) from the Debt Instruments will be perfected as and to the
extent provided in Section 9.306 of the Texas UCC and, assuming that
none of such proceeds represent proceeds (as defined in the Texas
UCC) of collateral in which another party has a prior perfected
security interest, the Indenture Trustee will acquire such security
interest in such proceeds free and clear of any prior lien of a kind
which may be perfected under Article 9 of the Texas UCC.
(v) An Officer's Certificate of the Issuer complying with the requirements
of Section 11.01 and stating that:
(A) the Issuer is not in Default under this Indenture and the
issuance of the Notes will not result in any breach of any of the
terms, conditions or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust or other agreement or
instrument to which the Issuer is a party or by which it is bound,
or any order of any court or administrative agency entered in any
proceeding to which the Issuer is a party or by which it may be
bound or to which it may be subject;
(B) the Issuer is the owner of all of the Home Loans, has not
assigned any interest or participation in the Home Loans (or, if any
such interest or participation has been assigned, it has been
released) and has the right to Grant all of the Home Loans to the
Indenture Trustee;
(C) the Issuer has Granted to the Indenture Trustee all of its
right, title, and interest in the Collateral, and has delivered or
caused the same to be delivered to the Indenture Trustee;
(D) attached thereto are true and correct copies of letters
signed by each Rating Agency, confirming that (i) each of the Senior
Notes have been rated "AAA" or the equivalent by each Rating Agency,
(ii) the Class M-1 Notes have been rated "AA" or the equivalent by
each Rating Agency, (iii) the Class M-2 Notes have been rated "A" or
the equivalent by each Rating Agency, and (iv) the Class B-1 Notes
have been rated at least "BBB" or the equivalent by each of Duff and
Fitch and "BBB-" or the equivalent by each f S&P and Xxxxx'x; and
(E) all conditions precedent provided for in this Indenture
relating to the authentication and delivery of the Notes have been
complied with. (a) The Opinions of Counsel to be delivered pursuant
to subsection (a)(v) above may differ from the Opinions of Counsel
described in such subsection so long as such Opinions of Counsel so
delivered are acceptable to each Rating Agency and the Indenture
Trustee, which shall be conclusively evidenced by the delivery on
the Closing Date of each such Rating Agency's rating letter and by
the Indenture Trustee's authentication and delivery of the Notes,
respectively, and such acceptable opinions shall be deemed to be
Opinions of Counsel required pursuant to subsection (a)(v) above.
Section 2.10. Release of Collateral. (a) Subject to the provisions of
---------------------
Section 11.01 and the terms of the Basic Documents, the Indenture Trustee shall
release property from the lien of this Indenture only upon receipt of an
Issuer Request accompanied by an Officer's Certificate, an Opinion of Counsel,
certificates in accordance with TIA Sections 3.14(c) and (d)(1), 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;
provided that no such Independent Certificates or Opinion of Counsel in lieu
of such Independent Certificates shall be necessary in respect of property
released from the lien of the Indenture in accordance with the provisions
hereof if such property consists solely of cash.
(b) The Issuer or the Servicer, on behalf of the Issuer, shall be entitled
to obtain a release from the lien of this Indenture for any Home Loan and the
related Mortgaged Property at any time (i) after a payment by the Transferor
or the Issuer of the Purchase Price of the Home Loan, (ii) after a Qualified
Substitute Home Loan is substituted for such Home Loan and payment of the
Substitution Adjustment, if any, (iii) after liquidation of the Home Loan in
accordance with Section 4.02 of the Sale and Servicing Agreement and the
deposit of all Liquidation Proceeds and Insurance Proceeds thereon in the
Collection Account, (iv) upon the payment in full of the Home Loan or the sale
or other disposition of the related Mortgaged Property, or (v) as contemplated
by Section 11.02(a) or (b) of the Sale and Servicing Agreement. Any such
release other than as contemplated by Section 11.02(a) or (b) of the Sale and
Servicing Agreement or pursuant to clause (iv) of the preceding sentence shall
be subject to the condition that the Issuer shall have delivered to the
Indenture Trustee an Issuer Request (A) identifying the Home Loan and the
related Mortgaged Property to be released, (B) requesting the release thereof,
(C) setting forth the amount deposited in the Collection Account with respect
thereto, (D) certifying that the amount deposited in the Collection Account
(x) equals the Purchase Price of the applicable Home Loan, in the case of a
release pursuant to clause (i) above, (y) equals the Substitution Adjustment
related to the Qualified Substitute Home Loan and the Deleted Home Loan
released pursuant to clause above, or (z) equals the entire amount of
Insurance Proceeds and Liquidation Proceeds received with respect to such Home
Loan and the related Mortgaged Property in the case of a release pursuant to
clause above. Any such release pursuant to clause of the second preceding
sentence shall be subject to the Servicer's compliance with the provisions of
Section 7.02 of the Sale and Servicing Agreement.
(c) The Indenture Trustee shall, if requested by the Servicer, temporarily
release or cause the Custodian to temporarily release to the Servicer the
Indenture Trustee's Home Loan File pursuant to the provisions of Section 7.02
of the Sale and Servicing Agreement upon compliance by the Servicer of the
provisions thereof provided that the Indenture Trustee's Home Loan File shall
have been stamped to signify the Issuer's pledge to the Indenture Trustee
under the Indenture.
Section 2.11. 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 The Depository Trust Company, the initial Clearing Agency,
by, or on behalf of, the Issuer. The Book-Entry Notes shall be registered
initially on the Note Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Owner thereof will receive a definitive Note
representing such Note Owner's interest in such Note, except as provided in
Section 2.12. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to such Note Owners pursuant to Section
2.12:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Note Registrar and the Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on the
Notes and the giving of instructions or directions hereunder) as the
sole holder of the Notes, and shall have no obligation to the Note
Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Indenture, the provisions
of this Section shall control;
(iv) the rights of Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law
and agreements between such Note Owners and the Clearing Agency
and/or the Clearing Agency Participants pursuant to the Note
Depository Agreement. Unless and until Definitive Notes are issued
pursuant to Section 2.12, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and
receive and transmit payments of principal of and interest on the
Notes to such Clearing Agency Participants; and
(vi) 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, 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 owning or representing, respectively, such
required percentage of the beneficial interest in the Notes and has
delivered such instructions to the Indenture Trustee.
Section 2.12 Notices to Clearing Agency. Whenever a notice or other
--------------------------
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to such Note Owners pursuant to
Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to such Note Owners.
Section 2.13. Definitive Notes. If (i) the Issuer advises the Indenture
---------------
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry Notes
and the Administrator is unable to locate a qualified successor, (ii) the
Issuer at its option advises the Indenture Trustee in writing that it elects
to terminate the book-entry system through the Clearing Agency or (iii) after
the occurrence of an Event of Default, Owners of the Book-Entry Notes
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of such Notes advise the Clearing Agency in writing that
the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of such Note Owners, then the Clearing Agency
shall notify all Note Owners and the Indenture Trustee of the occurrence of
such event and of the availability of Definitive Notes to Note Owners
requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Notes representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, the Issuer shall execute and the
Indenture Trustee shall authenticate the Definitive Notes in accordance with
the instructions of the Clearing Agency. None of the Issuer, the Note
Registrar or the Indenture Trustee shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Notes, the
Indenture Trustee shall recognize the Holders of the Definitive Notes as
Noteholders.
Section 2.14. Tax . The Issuer has entered into this Indenture, and
---
the Notes will be issued, with the intention that, for federal, state and
local income, single business and franchise tax purposes, the Notes will
qualify as indebtedness of the Issuer secured by the Collateral. The Issuer,
by entering into this Indenture, and each Noteholder, by its acceptance of a
Note (and each Note Owner by its acceptance of an interest in the applicable
Book-Entry Note), agree to treat the Notes for federal, state and local
income, single business and franchise tax purposes as indebtedness of the
Issuer.
ARTICLE III
COVENANTS
Section 3.01. Payment of Principal and Interest. The Issuer will duly and
--------------------------------
punctually pay (or will cause to be duly and punctually paid) the principal of
and interest on the Notes in accordance with the terms of the Notes and this
Indenture. Without limiting the foregoing, unless the Notes have been declared
due and payable pursuant to Section 5.02 and monies collected by the Indenture
Trustee are being applied in accordance with Section 5.05(b), subject to and
in accordance with Section 8.02(a), the Issuer will cause to be distributed
all amounts on deposit in the Note Payment Account on a Payment Date deposited
therein pursuant to the Sale and Servicing Agreement for the benefit of the
Notes of each Class, to the Holders thereof. Amounts properly withheld under
the Code by any Person from a payment to any Noteholder of interest and/or
principal shall be considered as having been paid by the Issuer to such
Noteholder for all purposes of this Indenture.
The Notes shall be non-recourse obligations of the Issuer and shall
be limited in right of payment to amounts available from the Collateral as
provided in this Indenture. The Issuer shall not otherwise be liable for
payments of the Notes, and none of the owners, agents, officers, directors,
employees, or successors or assigns of the Issuer shall be personally liable
for any amounts payable, or performance due, under the Notes or this
Indenture. If any other provision of this Indenture shall be deemed to
conflict with the provisions of this Section 3.01, the provisions of this
Section 3.01 shall control.
Section 3.02 Maintenance of Office or Agency. The Issuer will or will cause
------------------------------
the Administrator to maintain in the Borough of Manhattan, The City of New York,
an office or agency where Notes may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer hereby
initially appoints the Administrator to serve as its agent for the foregoing
purposes and to serve as Paying Agent with respect to the Notes. The Issuer
will give prompt written notice to the Indenture Trustee of the location, and
of any change in the location, of any such office or agency. If at any time
the Issuer shall fail to maintain any such office or agency or shall fail to
furnish the Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust Office, and
the Issuer hereby appoints the Indenture Trustee as its agent to receive all
such surrenders, notices and demands.
Section 3.03. Money for Payments To Be Held in Trust. All payments of
---------------------------------------
amounts due and payable with respect to any Notes that are to be made from
amounts withdrawn from the Collection Account and the Note Payment Account
pursuant to Section 8.02(a) shall be made on behalf of the Issuer by the
Indenture Trustee
or by the Paying Agent, and no amounts withdrawn from the Collection Account
and deposited in the Note Payment Account for payment on the Notes shall be
paid over to the Issuer except as provided in this Section.
Any Paying Agent shall be appointed by Issuer Order with written
notice thereof to the Indenture Trustee. Any Paying Agent appointed by the
Issuer shall be a Person who would be eligible to be Indenture Trustee
hereunder as provided in Section 6.11. The Issuer shall not appoint any Paying
Agent (other than the Indenture Trustee) which is not, at the time of such
appointment, a Depository Institution.
The Issuer will cause each Paying Agent other than the Administrator
to execute and deliver to the Indenture Trustee an instrument in which such
Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions
of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and pay such sums to such Persons as
herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer
(or any other obligor upon the Notes) of which it has actual knowledge in
the making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon
the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes
if at any time it ceases to meet the standards required to be met by a
Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith; provided, however, that
with respect to withholding and reporting requirements applicable to
original issue discount (if any) on the Notes, the Issuer shall have
first provided the calculations pertaining thereto to the Indenture
Trustee.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent. Upon such payment by any Paying Agent to the Indenture Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Subject to applicable laws with respect to escheat of funds or
abandoned property, any money held by the Indenture Trustee or any Paying
Agent in trust for the payment of any amount due with respect to any Note and
remaining unclaimed for two years after such amount has become due and payable
shall be discharged from such trust and be paid to the Issuer on Issuer
Request; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof (but only to the extent
of the amounts so paid to the Issuer), and all liability of the Indenture
Trustee or such Paying Agent with respect to such trust money shall thereupon
cease; provided, however, that the Indenture Trustee or such Paying Agent,
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before being required to make any such repayment, shall at the expense and
direction of the Issuer cause to be published once, in a newspaper published
in the English language, customarily published on 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 the Issuer. The Indenture Trustee shall
also adopt and employ, at the expense and direction of the Issuer, any other
reasonable means of notification of such repayment (including, but not limited
to, mailing notice of such repayment to Holders whose Notes have been called
but have not been surrendered for redemption or whose right to or interest in
moneys due and payable but not claimed is determinable from the records of the
Indenture Trustee or of any Paying Agent, at the last address of record for
each such Holder).
Section 3.04. Existence. (a) The Issuer will keep in full effect its existence,
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rights and franchises as a business trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of
America, in which case the Issuer will keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and will
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes and the Collateral.
(b) Any successor to the Owner Trustee appointed pursuant to Section 10.02
of the Trust Agreement shall be the successor Owner Trustee under this
Indenture without the execution or filing of any paper, instrument or further
act to be done on the part of the parties hereto.
(c) Upon any consolidation or merger of or other succession to the Owner
Trustee, the Person succeeding to the Owner Trustee under the Trust Agreement
may exercise every right and power of the Owner Trustee under this Indenture
with the same effect as if such Person had been named as the Owner Trustee
herein.
Section 3.05. Protection of Collateral . The Issuer will, from time to
-----------------------
time
and upon direction of the Majority Highest Priority Class Noteholders, 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:
(i) provide further assurance with respect to the Grant of all or
any portion of the Collateral;
(ii) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(iii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iv) enforce any rights with respect to the Collateral; or
(v) preserve and defend title to the Collateral and the rights of
the Indenture Trustee and the Noteholders in such Collateral against the
claims of all persons and parties. The Issuer hereby designates the
Administrator its agent and attorney-in-fact to execute any financing
statement, continuation statement or other instrument required to be
executed pursuant to this Section 3.05.
Section 3.06. Annual Opinions as to Collateral . On or before February 15
-------------------------------
in each calendar year, beginning in 1999, the Issuer shall furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording, filing,
re-recording and refiling of this Indenture, any indentures supplemental hereto
and any other requisite documents and with respect to the execution and filing
of any financing statements and continuation statements as is necessary to
maintain the lien and security interest created by this Indenture and reciting
the details of such action or stating that in the opinion of such counsel no
such action is necessary to maintain such lien and security interest.
Such Opinion of Counsel shall also describe the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any
other requisite documents and the execution and filing of any financing
statements and continuation statements that will, in the opinion of such
counsel, be required to maintain the lien and security interest of this
Indenture until February 15th of the following calendar year.
Section 3.07. Performance of Obligations; Servicing of Home Loans. (a) The
---------------------------------------------------
Issuer will not take any action and will use its best efforts not to permit
any action to be taken by others that would release any Person from any of
such Person's material covenants or obligations under any instrument or
agreement included in the Collateral or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, the Sale and Servicing Agreement or such
other instrument or agreement.
(b) The Issuer may contract with or otherwise obtain the assistance of
other Persons (including, without limitation, the Administrator under the
Administration Agreement) to assist it in performing its duties under this
Indenture, and any performance of such duties by a Person identified to the
Indenture Trustee in an Officer's Certificate of the Issuer shall be deemed
to be action taken by the Issuer. Initially, the Issuer has contracted with the
Servicer and the Administrator to assist the Issuer in performing its duties
under this Indenture. The Administrator must at all times be the same Person as
the Indenture Trustee.
(c) The Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture, the Basic Documents and in the
instruments and agreements included in the Collateral, including but not
limited to (i) 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 and (ii) recording or causing to be
recorded all Mortgages, Assignments of Mortgage, all intervening Assignments
of Mortgage and all assumption and modification agreements to the extent such
documents are required to be recorded by the terms of the Sale and Servicing
Agreement, in each case in accordance with and within the time periods
provided for in this Indenture and/or the Sale and Servicing Agreement, as
applicable. Except as otherwise expressly provided therein, the Issuer shall
not waive, amend, modify, supplement or terminate any Basic Document or any
provision thereof without the consent of the Indenture Trustee and the Holders
of at least a majority of the Outstanding Amount of the Notes.
(d) If the Servicer is terminated or resigns in accordance with the Sale
and Servicing Agreement, a successor Servicer shall be appointed as provided in
Section 10.02 of the Sale and Servicing Agreement.
(e) Without derogating from the absolute nature of the assignment granted
to the Indenture Trustee under this Indenture or the rights of the Indenture
Trustee hereunder, the Issuer agrees
that it will not, without the prior written consent of the Majority Highest
Priority Class Noteholders (i) amend, modify, waive, supplement, terminate or
surrender, or agree to any amendment, modification, supplement, termination,
waiver or surrender of, the terms of any Collateral (except to the extent
otherwise provided in the Sale and Servicing Agreement) or (ii) waive timely
performance or observance by the Servicer or the Seller under the Sale and
Servicing Agreement. If any such amendment, modification, supplement or waiver
shall be so consented to by such Holders, the Issuer agrees, promptly
following a request by the Indenture Trustee, to execute and deliver, in its
own name and at its own expense, such agreements, instruments, consents and
other documents as the Indenture Trustee may deem necessary or appropriate in
the circumstances.
Section 3.08. Negative Covenants. So long as any Notes are
------------------
Outstanding, the Issuer shall not:
(a) except as expressly permitted by this Indenture, the Loan Sale
Agreement or the Sale and Servicing Agreement, sell, transfer, exchange or
otherwise dispose of any of the properties or assets of the Issuer, including
those included in the Collateral, unless directed to do so by the Indenture
Trustee;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly withheld
from such payments under the Code) or assert any claim against any present or
former Noteholder by reason of the payment of the taxes levied or assessed
upon any part of the Collateral;
(c) engage in any business or activity other than as permitted by the
Trust Agreement or other than in connection with, or relating to, the issuance
of Notes pursuant to this Indenture, or amend the Trust Agreement as in effect
on the Closing Date other than in accordance with Section 11.01 thereof;
(d) issue debt obligations under any other indenture;
(e) incur or assume any indebtedness or guaranty any indebtedness of any
Person, except for such indebtedness as may be incurred by the Issuer in
connection with the issuance of the Notes pursuant to this Indenture;
(f) dissolve or liquidate in whole or in part or merge or consolidate with
any other Person;
(g) (A) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released
from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (B) permit any
lien, charge, excise, claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or extend to or
otherwise arise upon or burden the Collateral or any part thereof or any
interest therein or the proceeds thereof (other than tax liens, mechanics'
liens and other liens that arise by operation of law, in each case on any of
the Mortgaged Properties and arising solely as a result of an action or
omission of the related Obligor) or (C) permit the lien of this Indenture not
to constitute a valid first priority (other than with respect to any such tax,
mechanics' or other lien) security interest in the Collateral;
(h) remove the Administrator without cause unless the Rating Agency
Condition shall have been satisfied in connection with such removal; or
(i) take any other action or fail to take any action which may cause
the Issuer to be taxable as (a) an association pursuant to Section 7701
of the Code and the corresponding regulations or (b) as a taxable
mortgage pool pursuant to Section 7701(i) of the Code and the
corresponding regulations.
Section 3.09. Annual Statement as to Compliance .
---------------------------------
The Issuer will deliver to the Indenture Trustee, within 120 days after
the end of each fiscal year of the Issuer (commencing with the fiscal
year 1998), an Officer's Certificate stating, as to the Authorized
Officer signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such year and of
its performance under this Indenture has been made under such Authorized
Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge, based on
such review, the Issuer has complied with all conditions and covenants
under this Indenture throughout such year, or, if there has been a
default in its compliance with any such condition or covenant, specifying
each such default known to such Authorized Officer and the nature and
status thereof.
Section 3.10. Covenants of the Issuer. All covenants of the Issuer in this
-----------------------
Indenture are covenants of the Issuer and are not covenants of the Owner
Trustee. The Owner Trustee is, and any successor Owner Trustee under the Trust
Agreement will be, entering into this Indenture solely as Owner Trustee under
the Trust Agreement and not in its respective individual capacity, and in no
case whatsoever shall the Owner Trustee or any such successor Owner Trustee be
personally liable on, or for any loss in respect of, any of the statements,
representations, warranties or obligations of the Issuer hereunder, as to
all of which the parties hereto agree to look solely to the property of the
Issuer.
Section 3.11. Servicer's Obligations . The Issuer shall cause the Servicer
---------------------
to comply with Sections 5.01, 6.01, 7.07 and Article IX of the Sale and
Servicing Agreement.
Section 3.12. Restricted Payments . The Issuer shall not, directly
------------------
or indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer or to the Servicer, (ii) redeem, purchase, retire
or otherwise acquire for value any such ownership or equity interest or
security or (iii) set aside or otherwise segregate any amounts for any such
purpose; provided, however, that the Issuer may make, or cause to be made, (x)
distributions to the Servicer, the Indenture Trustee, the Owner Trustee and
the Securityholders as contemplated by, and to the extent funds are available
for such purpose under, the Sale and Servicing Agreement or the Trust
Agreement and (y) payments to the Indenture Trustee pursuant to the
Administration Agreement. The Issuer will not, directly or indirectly, make or
cause to be made payments to or distributions from the Collection Account
except in accordance with this Indenture and the Basic Documents.
Section 3.13. Treatment of Notes as Debt for Tax Purposes . The Issuer
-------------------------------------------
shall, and shall cause the Administrator to, treat the Notes as indebtedness for
all federal and state tax purposes.
Section 3.14. Notice of Events of Default.
---------------------------
The Issuer shall give the Indenture Trustee and the Rating Agencies prompt
written notice of each Event of Default hereunder, each default on the part of
the Servicer or the Seller of its obligations under the Sale and Servicing
Agreement and each default on the part of the Transferor or the Seller of its
obligations under the Loan Sale Agreement.
Section 3.15. Further Instruments and Acts.
----------------------------
Upon request of the Indenture Trustee, the Issuer will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this
Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture .
---------------------------------------
When either (I) the Sale and Servicing Agreement has been terminated pursuant
to Section 11.01(a) thereof or (II) all of the following have occurred:
(a) either
(1) all Notes theretofore authenticated and delivered (other
than (i) Notes that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 2.04 and (ii)
Notes for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as provided in
Section 3.03) have been delivered to the Indenture Trustee for
cancellation; or
(2) all Notes not theretofore delivered to the Indenture
Trustee for cancellation
(A) have become due and payable,
(B) will become due and payable within one year at the Maturity
Date, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of
notice of redemption by the Indenture Trustee in the name, and at
the expense, of the Issuer, and the Issuer has irrevocably deposited
or caused to be irrevocably deposited with the Indenture Trustee
cash or direct obligations of or obligations guaranteed by the
United States of America (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 (including Deferred Amounts to the extent required to be paid
hereunder) to the applicable Maturity Date of such Class of Notes or
Termination Date (if Notes shall have been called for redemption
pursuant to Section 10.01), as the case may be;
(b) the later of (i) eighteen months after payment in full of all
outstanding obligations under the Securities, (ii) the payment in full of all
unpaid Trust Fees and Expenses and (iii) the date on which the Issuer has paid
or caused to be paid all other sums payable hereunder by the Issuer; and
(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or the
Indenture Trustee) an Independent Certificate from a firm of certified public
accountants, each meeting the applicable requirements of Section 11.01(a) and,
subject to Section 11.02, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to the Notes have been complied with, then, upon Issuer Request, this
Indenture and the lien, rights, and interests created hereby shall cease to be
of further effect with respect to the Notes (except as to (i) rights of
registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive
payments of principal thereof and interest thereon, (iv) Sections 3.03, 3.04,
3.05, 3.08 and 3.10 hereof, (v) the rights, obligations and immunities of the
Indenture Trustee hereunder (including the rights of the Indenture Trustee
under Section 6.07 and the obligations of the Indenture Trustee under Section
4.02) and (vi) the rights of Noteholders as beneficiaries hereof with respect
to the property so deposited with the Indenture Trustee payable to all or any
of them), and the Indenture Trustee, on demand of and at the expense of the
Issuer, shall execute and deliver proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes, and
shall pay, or assign or transfer and deliver, to or at the direction of the
Issuer, all Collateral held by it as part of the Trust Estate after
satisfaction of the conditions specified in clauses (b) and (c) above.
Section 4.02. Application of Trust Money . All moneys deposited with the
--------------------------
Indenture Trustee pursuant to Sections 3.03 and 4.01 hereof 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 the Indenture
Trustee may determine, to the Holders of the particular Notes for the payment
or redemption of which such moneys have been deposited with the Indenture
Trustee, of all sums due and to become due thereon for principal and interest;
but such moneys need not be segregated from other funds except to the extent
required herein or in the Sale and Servicing Agreement or required by law.
Section 4.03. Repayment of Moneys Held by Paying Agent. In connection
----------------------------------------
with the satisfaction and discharge of this Indenture with respect to the
Notes, all moneys then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Notes
shall, upon demand of the Issuer, be paid to the Indenture Trustee to be
held and applied according to Section 3.03 and thereupon such Paying Agent
shall be released from all further liability with respect to such monies.
ARTICLE V
REMEDIES
Section 5.01. Events of Default. (a) "Event of Default," wherever used
----------------
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(i) subject to Section 5.01(b) and notwithstanding that there may be
insufficient sums in the Collection Account for payment thereof, default
for a period in excess of five days in the payment of any interest on any
Note when the same becomes due and payable or default in the payment of
the entire Principal Balance (including any Deferred Amount to the extent
required to be paid hereunder) of any Note on the Maturity Date; or
(ii) the existence of an unpaid Deferred Amount in respect of any
Highest Priority Class Notes; or
(iii) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is
elsewhere in this Section specifically dealt with), or any representation
or warranty of the Issuer made in this Indenture, the Sale and Servicing
Agreement 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 after there shall have been given, by registered or certified
mail, to the Issuer by the Indenture Trustee or to the Issuer and the
Indenture Trustee by the Holders of at least 25% of the Outstanding
Amount of the 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; or
(iv) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial
part of the Collateral in an involuntary case under any applicable
federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for
any substantial part of the Collateral, or ordering the winding-up or
liquidation of the Issuer's affairs, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(v) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or the consent by the Issuer to the entry of
an order for relief in an involuntary case under any such law, or the
consent by the Issuer to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the
Collateral, or the making by the Issuer of any general assignment for the
benefit of creditors, or the failure by the Issuer generally to pay its
debts as such debts become due, or the taking of any action by the Issuer
in furtherance of any of the foregoing.
(vi) The Issuer shall deliver to the 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 (iv)
above, its status and what action the Issuer is taking or proposes to
take with respect thereto.
(b) Neither (i) the failure to pay the full amount of interest
payable pursuant to Section 8.02(a)(iii) to the Holders of any
Non-Priority Class, nor (ii) an application of Allocable Loss Amounts
pursuant to Section 5.07 of the Sale and Servicing Agreement to a
Non-Priority Class, shall constitute an Event of Default under Section 5.01(a).
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If an
--------------------------------------------------
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee may, and at the direction or upon the prior written consent
of the Majority Highest Priority Class Noteholders shall declare all the Notes
to be immediately due and payable, by a notice in writing to the Issuer, 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 the Indenture Trustee as hereinafter in this Article V
provided, the Majority Highest Priority Class Noteholders, by written notice
to the Issuer and the Indenture Trustee, may rescind and annul such
declaration and its consequences if the Issuer has paid or deposited with the
Indenture Trustee a sum sufficient to pay:
(a) all payments of principal of and interest on all Highest
Priority Class Notes and all other amounts that would then be due
hereunder or upon such Highest Priority Class Notes if the Event of
Default giving rise to such acceleration had not occurred; and
(b) all sums paid or advanced by the Indenture Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee and its agents and counsel; and
(c) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
Section 5.03. Non-Priority Classes. The Holders of Notes of a Non-
--------------------
Priority Class shall have no right to exercise any remedies of Noteholders'
under this Article V, except to the extent otherwise expressly provided herein.
Section 5.04. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Indenture Trustee.
-----------------
(a) The Issuer covenants that if default is made in the payment of any
interest on any Highest Priority Class Note when the same becomes due and
payable, and such default continues for a period of five days, the Issuer
will, upon demand of the Indenture Trustee or, at the direction of the
Majority Highest Priority Class Noteholders, pay to the Indenture Trustee, for
the benefit of the Holders of the Notes, the whole amount then due and payable
on such Notes for interest 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 the
Indenture Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust may, and shall, at the direction of the Majority Highest Priority Class
Noteholders, institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and
collect in the manner provided by law out of the property of the Issuer or
other obligor upon such Notes, wherever situated, the monies adjudged or
decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, and shall, at the direction of the Majority Highest Priority
Class Noteholders, as more particularly provided in Section 5.05, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders, by such appropriate Proceedings as the Indenture Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Indenture Trustee by this
Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest
in the Collateral, 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 the Issuer or its property or such other obligor or
Person, or in case of any other comparable judicial Proceedings relative to
the Issuer or other obligor upon the Notes, or to the creditors or property of
the Issuer or such other obligor, the Indenture Trustee, irrespective of
whether the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Indenture Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, upon the direction of the
Majority Highest Priority Class Noteholders, 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 the Indenture Trustee (including any claim
for reasonable compensation to the Indenture Trustee, 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 the Indenture Trustee and each predecessor Indenture
Trustee (except as a result of negligence or bad faith)), and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law 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 the Indenture Trustee
on their behalf; and
(iv) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the
Indenture Trustee or the Holders of Notes allowed in any judicial
proceedings relative to the Issuer, its creditors and its property; and
any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to
make payments to the Indenture Trustee and, in the event that the
Indenture Trustee shall consent to the making of payments directly to
such Noteholders, to pay to the Indenture Trustee such amounts as shall
be sufficient to cover reasonable compensation to the Indenture Trustee,
each predecessor Indenture Trustee and their respective agents, attorneys
and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence or bad faith.
(v) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or
adopt on behalf of any Noteholder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights
of any Holder thereof or to authorize the Indenture Trustee to vote in
respect of the claim of any Noteholder in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
(vi) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture
Trustee without the possession of any of the Notes or the production
thereof in any trial or other Proceedings relative thereto, and any such
action or Proceedings instituted by the Indenture Trustee shall be
brought in its own name as trustee of an express trust, and any recovery
of judgment, subject to the payment of the expenses, disbursements and
compensation of the Indenture Trustee, each predecessor Indenture Trustee
and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Notes.
(vii) In any Proceedings brought by the Indenture Trustee (and also
any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Noteholders, and it shall not
be necessary to make any Noteholder a party to any such Proceedings.
Section 5.05. Remedies; Priorities. (a) If an Event of Default shall have
--------------------
occurred and be continuing the Indenture Trustee may, and at the direction of
the Majority Highest Priority Class Noteholders shall, do one or more of the
following (subject to Section 5.06):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes
or under this Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the Issuer and
any other obligor upon such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Collateral;
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee or the Noteholders; and
(iv) sell the Collateral or any portion thereof or rights or
interest therein in a commercially reasonable manner, at one or more
public or private sales called and conducted in any manner permitted by
law; provided, however, that the Indenture Trustee may not sell or
otherwise liquidate the Collateral following an Event of Default, unless
(A) the Holders of 100% of the Outstanding Amount of the Notes consent
thereto, (B) the proceeds of such sale or liquidation distributable to
the Noteholders are sufficient to discharge in full all amounts then due
and unpaid upon such Notes for principal (including any Deferred Amounts)
and interest or (C) the Indenture Trustee determines that the Collateral
will not continue to provide sufficient funds for the payment of
principal of (including any Deferred Amounts) and interest on the Notes
as they would have become due if the Notes had not been declared due and
payable, and the Indenture Trustee obtains the consent of Holders of
66-2/3% of the Outstanding Amount of the Highest Priority Class Notes. In
determining such sufficiency or insufficiency with respect to clauses (B)
and (C), the 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 Collateral for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant
to this Article V, it shall pay out the money or property in the
following order:
FIRST: to the Indenture Trustee for any costs or expenses incurred by
it in connection with the enforcement of the remedies provided for in
this Article V;
SECOND: to the Servicer for the Servicing Fee then due and unpaid;
THIRD: to the Noteholders for amounts due and unpaid on the Notes for
interest (including any premium), PRO RATA, according to the amounts
due and payable on the Notes for interest (including any premium);
FOURTH: to Noteholders for amounts due and unpaid on the Notes in
respect of principal, PRO rata, according to the Class Principal
Balances thereof, until the Outstanding Amount of each Class of
Notes is reduced to zero;
FIFTH: to Holders of the Class M-1 Notes, Class M-2 Notes
and Class B-1 Notes, PRO RATA based on the amount of their
respective Deferred Amounts, such Deferred Amounts if any,
until such Deferred Amounts are paid in full;
SIXTH: to the Owner Trustee or Co-Owner Trustee, as applicable,
for amounts required to be distributed to the Residual Interest
Certificate in respect of the A IO and B-2 Components;
SEVENTH: to the Servicer for any amounts then due and payable as the
Servicing Advance Reimbursement Amount under the Sale and Servicing
Agreement; and
EIGHTH: to the Owner Trustee or Co-Owner Trustee, as applicable, for
any amounts to be distributed to the Residual Interest Certificate in
respect of the Excess Component.
The Indenture Trustee may fix a record date and payment date for any
payment to be made to the Noteholders pursuant to this Section. At least 15
days before such record date, the Indenture Trustee shall mail to each
Noteholder and the Issuer a notice that states the record date, the payment
date and the amount to be paid.
Section 5.06. Optional Preservation of the Collateral. If the Notes have
---------------------------------------
been declared to be due and payable under Section 5.02 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to maintain
possession of the Collateral. It is the desire of the parties hereto and the
Noteholders that there be at all times sufficient funds for the payment of
interest and, ultimately, principal on and any Deferred Amounts with respect
to the Notes, and the Indenture Trustee shall take such desire into account
when determining whether or not to maintain possession of the Collateral. In
determining whether to maintain possession of the Collateral, the 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
Collateral for such purpose.
Section 5.07. 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 the Indenture
Trustee of a continuing Event of Default;
(b) the Majority Highest Priority Class Noteholders have made
written request to the Indenture Trustee to institute such Proceeding in
respect of such Event of Default in its own name as Indenture Trustee
hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceedings; and
(e) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60-day period by the Majority
Highest Priority Class Noteholders.
It is 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 the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than the Majority Highest Priority Class
Noteholders, the Indenture Trustee in its sole discretion may determine what
action, if any, shall be taken, notwithstanding any other provisions of this
Indenture.
Section 5.08. 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 on, if any, and Deferred Amounts, if
any, on such Note on or after the Maturity Date (or, in the case of
redemption, on or after the Termination 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 5.09. Restoration of Rights and Remedies . If the Indenture
----------------------------------
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had
been instituted.
Section 5.10. Rights and Remedies Cumulative . No right or remedy herein
-----------------------------
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not a Waiver. No delay or omission of the
-----------------------------
Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture
Trustee or to the Noteholders may be exercised from time to time, and as often
as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as
the case may be.
Section 5.12. Control by Noteholders. The Majority Highest Priority Class
----------------------
Noteholders shall have the right to direct the time, method and
place of conducting any Proceeding for any remedy available to the Indenture
Trustee with respect to the Notes or exercising any trust or power conferred
on the Indenture Trustee; provided that:
(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 5.05, any direction to
the Indenture Trustee to sell or liquidate the Collateral shall be by
Holders of Notes representing not less than 100% of the Outstanding
Amount of the Notes;
(c) if the conditions set forth in Section 5.06 have been satisfied
and the Indenture Trustee elects to retain the Collateral pursuant to
such Section, then any direction to the Indenture Trustee by Holders of
Notes representing less than 100% of the Outstanding Amount of the
Highest Priority Class Notes to sell or liquidate the Collateral shall be
of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of the Noteholders set forth in this
Section, subject to Section 6.01, the Indenture Trustee need not take any
action that it determines might involve it in liability or might materially
adversely affect the rights of any Noteholders not consenting to such action.
Section 5.13. Waiver of Past Defaults. Prior to the declaration of the
-----------------------
acceleration of the maturity of the Notes as provided in Section 5.02, the
Majority Highest Priority Class Noteholders may waive any past Default or
Event of Default and its consequences except a Default (a) in the payment of
interest on any of the Notes or (b) in respect of a covenant or provision
hereof that cannot be modified or amended without the consent of the Holder of
each Note, as applicable. In the case of any such waiver, the Issuer, the
Indenture Trustee and the Holders of the Notes shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
Section 5.14. 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 the Indenture Trustee for any action taken, suffered or omitted by it
as Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes or (c) any suit instituted by any Noteholder
for the enforcement of the payment of principal of or interest on any Note on
or after the respective due dates expressed in such Note and in this Indenture
(or, in the case of redemption, on or after the Termination Date).
Section 5.15. Waiver of Stay or Extension Laws. The Issuer covenants
--------------------------------
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Indenture Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 5.16. Action on Notes.
----------------
The Indenture Trustee's right to seek and recover judgment on the Notes or
under this Indenture shall not be affected by the seeking, obtaining or
application of any other relief under or with respect to this Indenture.
Neither the lien of this Indenture nor any rights or remedies of the Indenture
Trustee or the Noteholders shall be impaired by the recovery of any judgment
by the Indenture Trustee against the Issuer or by the levy of any execution
under such judgment upon any portion of the Collateral or upon any of the
assets of the Issuer. Any money or property collected by the Indenture Trustee
shall be applied in accordance with Section 5.05(b).
Section 5.17. Performance and Enforcement of Certain Obligations.
--------------------------------------------------
(a) Promptly following a request from the Indenture Trustee to do so
and at the Issuer's expense, the Issuer shall take all such lawful action
as the Indenture Trustee may request to compel or secure the performance
and observance by the Seller and the Servicer, as applicable, of each of
their obligations to the Issuer under or in connection with the Sale and
Servicing Agreement or by the Seller of its obligations under or in
connection with the Loan Sale Agreement, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer
under or in connection with the Sale and Servicing Agreement to the
extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Seller or the
Servicer thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by the Seller or
the Servicer of each of their obligations under the Sale and Servicing
Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing or by telephone, confirmed in writing promptly thereafter) of the
Majority Highest Priority Class Noteholders shall, exercise all rights,
remedies, powers, privileges and claims of the Issuer against the Seller
or the Servicer under or in connection with the Sale and Servicing
Agreement, or against the Seller under or in connection with the Loan
Sale Agreement, including the right or power to take any action to compel
or secure performance or observance by the Seller or the Servicer, as the
case may be, of each of their obligations to the Issuer thereunder and to
give any consent, request, notice, direction, approval, extension, or
waiver under the Sale and Servicing Agreement or the Loan Sale Agreement,
as the case may be, and any right of the Issuer to take such action shall
be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee. (a) If an Event of Default has
---------------------------
occurred and is continuing, the Indenture Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i)the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; however, the Indenture Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.12;
(iv) every provision of this Indenture that in any way relates to
the Indenture Trustee is subject to this Section;
(v) the Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing
with the Issuer;
(vi) money held in trust by the Indenture Trustee shall be
segregated from other funds except to the extent permitted by law or the
terms of this Indenture or the Sale and Servicing Agreement;
(vii) no provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds to believe that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it; provided,
however, that the Indenture Trustee shall not refuse or fail to perform
any of its duties hereunder solely as a result of nonpayment of its
normal fees and expenses and further provided that nothing in this
Section 6.01(c)(vii) shall be construed to limit the exercise by the
Indenture Trustee of any right or remedy permitted under this Indenture
or otherwise in the event of the Issuer's failure to pay the Indenture
Trustee's fees and expenses pursuant to Section 6.07. In determining that
such repayment or indemnity is not reasonably assured to it, the
Indenture Trustee must consider not only the likelihood of repayment or
indemnity by or on behalf of the Issuer but also the likelihood of
repayment or indemnity from amounts payable to it from the Collateral
pursuant to Section 6.07; and
(viii) every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture
Trustee shall be subject to the provisions of this Section and to the
provisions of the TIA.
Section 6.02. Rights of Indenture Trustee. (a) The Indenture Trustee may
rely on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Indenture Trustee need not investigate any
fact or matter stated in any such document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The Indenture Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on an Officer's Certificate or an Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee.
(d) The Indenture Trustee shall not be liable for (i) any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that such action or omission by the
Indenture Trustee does not constitute willful misconduct, negligence or bad
faith; or (ii) any willful misconduct or gross negligence on the part of the
Custodian.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from
liability with respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
Section 6.03. Individual Rights of Indenture Trustee. The Indenture
--------------------------------------
Trustee in its individual or any other capacity other than as Indenture Trustee
or Co-Owner Trustee may, and in its capacity as Indenture Trustee or Co-Owner
Trustee may not, become the owner or pledgee of Notes and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it were
not Indenture Trustee. Any Paying Agent, Note Registrar, co-registrar or
co-paying agent may do the same with like rights. However, the Indenture Trustee
must comply with Section 6.11.
Section 6.04. Indenture Trustee's Disclaimer. The Indenture Trustee shall
------------------------------
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes or the Issuer's use of the proceeds
from the Notes, or responsible for any statement of the Issuer in the Indenture
or in any document issued in connection with the sale of the Notes or in the
Notes other than the Indenture Trustee's certificate of authentication.
Section 6.05. Notice of Default. If a Default occurs and is continuing
and if it is known to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to each Noteholder notice of the Default within 90
days after it occurs. Except in the case of a Default in payment of principal
of or interest on any Note (including payments pursuant to the mandatory
redemption provisions of such Note), the Indenture Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Noteholders.
Section 6.06. Reports by Indenture Trustee to Holders. The Indenture
Trustee shall deliver to each Noteholder such information as may be required to
enable such holder to prepare its federal and State income tax returns.
Section 6.07. Compensation and Indemnity. As compensation for its services
hereunder, the Indenture Trustee shall be entitled to receive, on each Payment
Date, the Indenture Trustee's Fee, payable by the Servicer (which compensation
shall not be limited by any law on compensation of a trustee of an express
trust), and shall be entitled to reimbursement from the Servicer for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances, if any, of the Indenture Trustee's agents, counsel, accountants and
experts. The Issuer agrees to cause the Servicer to indemnify the Indenture
Trustee against any and all loss, liability or expense (including attorneys'
fees) incurred by it in connection with the administration of this trust and
the performance of its duties hereunder. The Indenture Trustee shall notify the
Issuer and the Servicer promptly of any claim for which it may seek indemnity.
Failure by the Indenture Trustee to so notify the Issuer and the Servicer
shall not relieve the Issuer of its obligations hereunder. The Issuer shall or
shall cause the Servicer to defend any such claim, and the Indenture Trustee
may have separate counsel and the Issuer shall or shall cause the Servicer to
pay the fees and expenses of such counsel. Neither the Issuer nor the Servicer
need reimburse any expense or indemnify against any loss, liability or expense
incurred by the Indenture Trustee to the extent attributable the Indenture
Trustee's own willful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses in connection with occurrence of a Default specified
in Section 5.01(a)(v) or (vi) with respect to the Issuer, the expenses are
intended to constitute expenses of administration under Title 11 of the United
States Code or any other applicable federal or State bankruptcy, insolvency or
similar law.
Section 6.08. Replacement of Indenture Trustee. No resignation or removal
of the Indenture Trustee and no appointment of a successor Indenture Trustee
shall become effective until the acceptance of appointment by the successor
Indenture Trustee pursuant to this Section. The Indenture Trustee may resign
at any time by so notifying the Issuer. The Holders of a majority in
Outstanding Amount of the Notes may remove the Indenture Trustee by so
notifying the Indenture Trustee and may appoint a successor Indenture Trustee.
The Issuer shall remove the Indenture Trustee if:
(a) the Indenture Trustee fails to comply with Section 6.11;
(b) the Indenture Trustee is adjudged a bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or (d) the Indenture Trustee otherwise becomes
incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in
such event being referred to herein as the "resigning or removed Indenture
Trustee"), the Issuer shall promptly appoint a successor Indenture Trustee
that satisfies the eligibility requirements of Section 6.11.
The resigning or removed Indenture Trustee agrees to cooperate with
the Servicer and any successor Indenture Trustee in effecting the termination
of the resigning or removed Indenture Trustee's responsibilities and rights
hereunder and shall promptly provide such successor Indenture Trustee all
documents and records reasonably requested by it to enable it to assume the
Indenture Trustee's functions hereunder. Any successor Indenture Trustee shall
have all the rights, powers and duties of the Indenture Trustee under this
Indenture.
The resigning or removed Indenture Trustee shall Grant to the
successor Indenture Trustee the Collateral, including, without limitation, all
of the Indenture Trustee's Home Loan Files, the related documents and
statements held by it hereunder, and the Seller, the Servicer, the Issuer and
the resigning or removed Indenture Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Indenture Trustee
all such rights, powers, duties and obligations.
The successor Indenture Trustee shall deliver a written acceptance of
its appointment to the resigning or removed Indenture Trustee, the Servicer,
the Seller and the Issuer. The successor Indenture Trustee shall mail a notice
of its succession to Noteholders. The resigning 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 60 days
after the retiring Indenture Trustee resigns or is removed, the resigning or
removed Indenture Trustee, the Issuer or the Holders of a majority of the
Outstanding Amount of the Notes may petition any court of competent
jurisdiction for the appointment of a successor Indenture Trustee. If the
Indenture Trustee fails to comply with Section 6.11, any Noteholder may
petition any court of competent jurisdiction for the removal of the Indenture
Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's and the Administrator's obligations under Section
6.07 shall continue for the benefit of the retiring Indenture Trustee.
Section 6.09. Successor Indenture Trustee by Merger. If the 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. The Indenture Trustee shall provide the Rating
Agencies prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion or
consolidation to the 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 the 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 the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the 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 the Indenture Trustee shall
have.
Section 6.10. Appointment of Co-Indenture Trustee or Separate Indenture
Trustee. (a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Collateral may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust Estate, and to
vest in such Person or Persons, in such capacity and for the benefit of the
Noteholders, such title to the Collateral, or any part thereof, and, subject to
the other provisions of this Section, such powers, duties, obligations, rights
and trusts as the Indenture Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the terms
of eligibility as a successor trustee under Section 6.11 and no notice to
Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.08 hereof;
(b) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Collateral or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Indenture 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, jointly
with the Indenture Trustee, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the
conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the Indenture
Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect
of this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
Section 6.11. Eligibility; Disqualification. The Indenture Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recently published annual report of condition and it or
its parent shall have a long-term debt rating of "A" or better by S&P or shall
otherwise be acceptable to S&P. The Indenture Trustee shall comply with TIA
Section 310(b), including the optional provision permitted by the second
sentence of TIA Section 310(b)(9); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or indentures
under which other securities of the Issuer are outstanding if the requirements
for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 6.12. Preferential Collection of Claims Against Issuer .
The Indenture Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). An Indenture Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer To Furnish Indenture Trustee Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the Indenture
Trustee not more than five days after each Record Date, a list, in such form
as the Indenture Trustee may reasonably require, of the names and addresses of
the Holders of Notes as of such Record Date; provided, however, that so long
as the Indenture Trustee is the Note Registrar, no such list shall be required
to be furnished.
Section 7.02. Preservation of Information; Communications to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Holders of Notes contained in the
most recent list furnished to the Indenture Trustee as provided in Section
7.01 and the names and addresses of Holders of Notes received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy
any list furnished to it as provided in such Section 7.01 upon receipt of a
new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section
312(b) with other Noteholders with respect to their rights under this
Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have the
protection of TIA Section 312(c). Section 7. (a) The Issuer shall:
(i)file with the Indenture Trustee within 15 days after the Issuer
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) that the Issuer may be required
to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with the rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports with
respect to compliance by the Issuer with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA Section
313(c)) such summaries of any information, documents and reports required
to be filed by the Issuer pursuant to clauses (i) and (ii) of this
Section 7.03(a) and by rules and regulations prescribed from time to time
by the Commission. (b) Unless the Issuer otherwise determines, the fiscal
year of the Issuer shall end on December 31 of each year.
Section 7.04. Reports by Indenture Trustee. If required by TIA Section
313(a), within 60 days after each September 1, beginning with September 1, 1998,
the Indenture Trustee shall mail to each Noteholder as required by TIA Section
313(c) a brief report dated as of such date that complies with TIA Section
313(a). The Indenture Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders shall
be filed by the Indenture Trustee with the Commission and each securities
exchange, if any, on which the Notes are listed. The Issuer shall notify the
Indenture Trustee if and when the Notes are listed on any securities exchange.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money . Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default
occurs in the making of any payment or performance under any agreement or
instrument that is part of the Collateral, the Indenture Trustee may take such
action as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate Proceedings. Any such action
shall be without prejudice to any right to claim a Default or Event of Default
under this Indenture and any right to proceed thereafter as provided in
Article V.
Section 8.02. Payments and Distributions. (a) Subject to Section 8.02(b),
on each Payment Date and on any Termination Date, to the extent funds are
available in the Note Payment Account, the Indenture Trustee shall make the
following payments pursuant to the Servicer's Monthly Statement (except as
provided in Section 5.05(b)):
(i) to the Servicer, an amount equal to the Servicing
Compensation (net of (1) any amounts retained prior to deposit into
the Collection Account pursuant to Section 5.01(b)(1) of the Sale
and Servicing Agreement, (2) any amounts representing income or gain
from investments credited to the Collection Account and paid to the
Servicer pursuant to Section 5.01(b)(2) of the Sale and Servicing
Agreement and (3) the Indenture Trustee Fee, which shall be paid to
the Indenture Trustee) and all unpaid Servicing Compensation from
prior Due Periods;
(ii) to the extent of funds withdrawn from the Pre-Funding
Account and deposited in the Note Payment Account by the Indenture
Trustee pursuant to Section 5.01(b)(2) of the Sale and Servicing
Agreement (net of any amount deposited in the Certificate
Distribution Account from the Note Payment Account for distribution
to Certificateholders pursuant to Subsection 5.01(c)(2) of the Sale
and Servicing Agreement), (A) if such amount deposited in the Note
Payment Account is greater than $50,000 or an Indenture Event of
Default has occurred, PRO RATA, to the Holders of Notes of each
class, based on the Class Principal Balance of each such Class, in
each case to reduce the Class Principal Balance of each such Class;
or (B) if no Indenture Event of Default has occurred and such amount
deposited in the Note Payment Account is less than or equal to
$50,000 sequentially to the Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-6, Class A-7 and Class A-8 Notes, in that
order, in reduction of the Class Principal Balances thereof;
(iii) to the extent of the Regular Payment Amount for such
Payment Date, in the following order of priority:
(A) to the Holders of the Senior Notes, the Senior
Noteholders' Interest Payment Amount for such Payment Date,
allocated to each Class of Senior Notes, PRO RATA, based on the
amount of interest payable in respect of each such Class based
on the applicable Interest Rate;
(B) to the Holders of the Class M-1 Notes, the Class M-1
Noteholders' Interest Payment Amount for such Payment Date;
(C) to the Holders of the Class M-2 Notes, the Class M-2
Noteholders' Interest Payment Amount for such Payment Date;
(D) to the Holders of the Class B-1 Notes, the Class B-1
Noteholder's Interest Payment Amount from such Payment Date;
(E) to the Holders of the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7 and Class A-8 Notes,
in that order, until the respective Class Principal Balances
thereof have been reduced to zero, the amount necessary to
reduce the aggregate of the Class Principal Balances of the
Senior Notes to the Senior Optimal Principal Balance for such
Payment Date;
(F) to the Holders of the Class M-1 Notes, the amount
necessary to reduce the Class Principal Balance thereof to the
Class M-1 Optimal Principal Balance for such Payment Date;
(G) to the Holders of the Class M-2 Notes, the amount
necessary to reduce the Class Principal Balance thereof to the
Class M-2 Optimal Principal Balance for such Payment Date;
(H) to the Holders of the Class B-1 Notes, the amount
necessary to reduce the Class Principal Balance thereof to the
Class B-1 Optimal Principal Balance for such Payment Date;
(I) to the Holders of the Class M-1 Notes, the applicable
Deferred Amount, if any, until such Deferred Amount has been
paid in full;
(J) to the Holders of the Class M-2 Notes, the applicable
Deferred Amount, if any, until such Deferred Amount has been
paid in full; and
(K) to the Holders of the Class B-1 Notes, the applicable
Deferred Amount, if any, until such Deferred Amount has been
paid in full.
(iv) to the extent of the Excess Spread, if any, in the following order
of priority:
(A) in an amount equal to the Overcollateralization Deficiency
Amount, if any, as follows:
1) to the Holders of the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7 and Class A-8 Notes,
in that order, until the respective Class Principal Balances
thereof are reduced to zero, the amount necessary to reduce the
aggregate of the Class Principal Balances thereof to the Senior
Optimal Principal Balance for such Payment Date;
2) to the Holders of the Class M-1 Notes, the amount
necessary to reduce the Class Principal Balance thereof to the
Class M-1 Optimal Principal Balance for such Payment Date;
3) to the Holders of the Class M-2 Notes, the amount
necessary to reduce the Class Principal Balance thereof to the
Class M-2 Optimal Principal Balance for such Payment Date;
4) to the Holders of the Class B-1 Notes, the amount
necessary to reduce the Class Principal Balance thereof to the
Class B-1 Optimal Principal Balance for such Payment Date;
(B) to the Holders of the Class M-1 Notes, the applicable Deferred
Amount, if any, until such Deferred Amount has been paid in full;
(C) to the Holders of the Class M-2 Notes, the applicable Deferred
Amount, if any, until such Deferred Amount has been paid in full; and
(D) to the Holders of the Class B-1 Notes, the applicable Deferred
Amount, if any, until such Deferred Amount has been paid in full.
(b) On the Payment Date on which an early redemption or termination
pursuant to Section 11.02 of the Sale and Servicing Agreement is to occur, to
the extent funds are available in the Note Payment Account, the Indenture
Trustee shall make the following payments from the Note Payment Account in
the following order of priority:
(i) to the Servicer, an amount equal to the Servicing
Compensation and all paid and unpaid Servicing Compensation from
prior Due Periods;
(ii) to the holders of the Notes, all accrued and unpaid
interest on each Class of Notes and an amount equal to the aggregate
of the then outstanding Class Principal Balances of each Class of
Notes; and
(iii) to the holders of the Class M-1, Class M-2 and Class B-1
Notes, in that order, the applicable Deferred Amounts, until each
such Deferred Amount has been paid in full.
(c) On each Payment Date and the Termination Date, to the extent of the
interest of the Indenture Trustee in the Certificate Distribution Account (as
described in Section 5.05(a) of the Sale and Servicing Agreement), the
Indenture Trustee hereby authorizes the Owner Trustee, the Co-Owner Trustee or
the Paying Agent, as applicable, to make the distributions from the
Certificate Distribution Account as required pursuant to Section 5.05(c) of
the Sale and Servicing Agreement.
Section 8.03. [Reserved]
Section 8.04. Servicer's Monthly Statements. On each Payment Date, the
Indenture Trustee shall deliver the Servicer's Monthly Statement with respect
to such Payment Date to DTC and the Rating Agencies.
Section 8.05. Release of Collateral. (a) Subject to the payment of its fees
and expenses pursuant to Section 6.07, the Indenture Trustee may, and when
required by the provisions of this Indenture or the Sale and Servicing Agreement
shall, execute instruments to release property from the lien of this Indenture,
or convey the Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture or
the Sale and Servicing Agreement. No party relying upon an instrument executed
by the Indenture Trustee as provided in this Article VIII shall be bound to
ascertain the Indenture Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any monies.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due to (i) the Certificateholders pursuant to
Section 5.05(c) of the Sale and Servicing Agreement and (ii) the Servicer
pursuant to Section 8.02(a)(i) hereof have been paid, release any remaining
portion of the Collateral that secured the Notes from the lien of this Indenture
and release to the Issuer or any other Person entitled thereto any funds then
on deposit in the Trust Accounts. The Indenture Trustee shall release property
from the lien of this Indenture pursuant to this Subsection only upon receipt
of an Issuer Request accompanied by an Officer's Certificate, an Opinion of
Counsel and (if required by the TIA) Independent Certificates in accordance
with TIA Sections 314(c) and 314(d)(1) meeting the applicable requirements of
Section 11.01.
Section 8.06. Opinion of Counsel. The Indenture Trustee shall receive at
least seven days notice when requested by the Issuer to take any action pursuant
to Section 8.05(a), accompanied by copies of any instruments involved, and the
Indenture Trustee shall also require, as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture
Trustee, stating the legal effect of any such action, outlining the steps
required to complete the same, and concluding that all conditions precedent to
the taking of such action have been complied with and such action will not
materially and adversely impair the security for the Notes or the rights of
the Noteholders in contravention of the provisions of this Indenture;
provided, however, that such Opinion of Counsel shall not be required to
express an opinion as to the fair value of the Collateral. Counsel rendering
any such opinion may rely, without independent investigation, on the accuracy
and validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9Supplemental Indentures Without Consent of Noteholders . (a) Without
the consent of the Holders of any Notes but with prior notice to the Rating
Agencies and with the prior written consent of the Issuer and the Indenture
Trustee, when authorized by an Issuer Order, at any time and from time to
time, may enter into one or more 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 the Indenture Trustee, for
any of the following purposes:
(i) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey
and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable provisions
hereof, of another person to the Issuer, and the assumption by any such
successor of the covenants of the Issuer herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of the Holders of
the Notes, or to surrender any right or power herein conferred upon the
Issuer; (iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee; (v) to cure any ambiguity, to correct or
supplement any provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental indenture
or to make any other provisions with respect to matters or questions arising
under this Indenture or in any supplemental indenture; provided, that such
action shall not adversely affect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the appointment hereunder
of a successor trustee with respect to the Notes and to add to or change any
of the provisions of this Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one trustee, pursuant to
the requirements of Article VI; or (vii) to modify, eliminate or add to the
provisions of this Indenture to such extent as shall be necessary to effect
the qualification of this Indenture under the TIA or under any similar federal
statute hereafter enacted and to add to this Indenture such other provisions
as may be expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further
appropriate agreements and stipulations that may be therein
contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer Order,
may, also without the consent of any Noteholder but with prior consent of the
Rating Agencies, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Noteholders under this Indenture; provided, however,
that such action shall not, as evidenced by (i) an Opinion of Counsel or (ii)
satisfaction of the Rating Agency Condition, adversely affect in any material
respect the interests of any Noteholder.
Section 9Supplemental Indentures with Consent of Noteholders . The Issuer and
the Indenture Trustee, when authorized by an Issuer Order, also may, with
prior consent of the Rating Agencies, and with the consent of the Holders of
not less than a majority of the Outstanding Amount of the Notes, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Holders of
the Notes under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:
(a) 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 Termination Price with respect thereto, change the provisions of this
Indenture relating to the application of collections on, or the proceeds of
the sale of, the Collateral to payment of principal of or interest on the
Notes, or change any place of payment where, or the coin or currency in which,
any Note or the interest thereon is payable, or impair the right to institute
suit for the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to the
payment of any such amount due on the Notes on or after the respective due
dates thereof (or, in the case of redemption, on or after the Termination
Date);
(b) reduce the percentage of the Outstanding Amount of the Notes, 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; (c) modify or alter the
provisions of the proviso to the definition of the term "Outstanding"; (d)
reduce the percentage of the Outstanding Amount of the Notes required to
direct the Indenture Trustee to direct the Issuer to sell or liquidate the
Collateral pursuant to Section 5.04; (e) 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; (f) 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 (g) 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 Collateral or, except as otherwise permitted or
contemplated herein, terminate the lien of this Indenture on any property at
any time subject hereto or deprive the Holder of any Note of the security
provided by the lien of this Indenture.
The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith.
In connection with requesting the consent of the Noteholders pursuant
to this Section, the Indenture Trustee shall mail to the Holders of the Notes
to which such amendment or supplemental indenture relates a notice setting
forth in general terms the substance of such supplemental indenture. 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.
Section 9Execution of Supplemental Indentures . In executing, or permitting
the additional trusts created by, any supplemental indenture permitted by this
Article IX or the modification thereby of the trusts created by this
Indenture, the Indenture Trustee shall be entitled to receive, and subject to
Sections 6.01 and 6.02, shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but
shall not be obligated to, enter into any such supplemental indenture that
affects the Indenture Trustee's own rights, duties, liabilities or immunities
under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indenture . Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations
of rights, obligations, duties, liabilities and immunities under this
Indenture of the Indenture Trustee, the Issuer and the Holders of the Notes
shall thereafter be determined, exercised and enforced hereunder subject in
all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
Section 9.05. 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 9.06. Reference in Notes to Supplemental Indentures .
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes. Section
9.07. Amendments to Trust Agreement . Subject to Section 11.01 of the Trust
Agreement, the Indenture Trustee shall, upon Issuer Order, consent to any
proposed amendment to the Trust Agreement or an amendment to or waiver of any
provision of any other document relating to the Trust Agreement, such consent
to be given without the necessity of obtaining the consent of the Holders of
any Notes upon satisfaction of the requirements under Section 11.01 of the
Trust Agreement.
Nothing in this Section shall be construed to require that any Person
obtain the consent of the Indenture Trustee to any amendment or waiver or any
provision of any document where the making of such amendment or the giving of
such waiver without obtaining the consent of the Indenture Trustee is not
prohibited by this Indenture or by the terms of the document that is the
subject of the proposed amendment or waiver.
ARTICLE X
REDEMPTION OF NOTES
Section 1Redemption . The Seller may, at its option, effect an early
redemption of the Notes on or after the Payment Date on which the Pool
Principal Balance declines to 10% or less of the Assumed Pool Principal
Balance. The Seller shall effect such early redemption in the manner specified
in and subject to the provisions of Section 11.02 of the Sale and Servicing
Agreement.
The Servicer or the Issuer shall furnish the Rating Agencies notice
of any such redemption in accordance with Section 10.02.
Section 1Form of Redemption Notice . Notice of redemption under Section 10.01
shall be given by the Indenture Trustee by first-class mail, postage prepaid,
or by facsimile mailed or transmitted not later than 10 days prior to the
applicable Termination Date to each Holder of Notes, as of the close of
business on the Record Date preceding the applicable Termination Date, at such
Holder's address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Termination Date;
(ii) the Termination Price; and
(iii) the place where such Notes are to be surrendered for payment of the
Termination Price (which shall be the office or agency of the Issuer to be
maintained as provided in Section 3.02).
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name of the Issuer and at the expense of the Servicer. 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 any other Note.
Section 1Notes Payable on Termination Date; Provision for Payment of Indenture
Trustee . The Notes or portions thereof to be redeemed shall, following notice
of redemption as required by Section 10.02 (in the case of redemption pursuant
to Section 10.01), on the Termination Date become due and payable at the
Termination Price and (unless the Issuer shall default in the payment of the
Termination Price) no interest shall accrue on the Termination Price for any
period after the date to which accrued interest is calculated for purposes of
calculating the Termination Price. The Issuer may not redeem the Notes unless,
(i) all outstanding obligations under the Notes have been paid in full and
(ii) the Indenture Trustee has been paid all amounts to which it is entitled
hereunder.
ARTICLE XI
MISCELLANEOUS
Section 1Compliance Certificates and Opinions, etc . (a) Upon any application
or request by the Issuer to the Indenture Trustee to take any action under any
provision of this Indenture, the Issuer shall furnish to the Indenture Trustee
(x) 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, (y) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and (z)
if required by TIA Section 3.14(c), a certificate of an accountant or, if
required by such section, 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 such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (iii) a statement that, in the opinion of
each such signatory, such signatory has made such examination or investigation
as is necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and (iv) a
statement as to whether or not, in the opinion of each such signatory, such
condition or covenant has been complied with. (b) (i) Prior to the deposit of
any Collateral or other property or securities with the Indenture Trustee that
is to be made the basis for the release of any property or securities subject
to the lien of this Indenture, the Issuer shall, in addition to any obligation
imposed in Section 11.01(a) or elsewhere in this Indenture, furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the opinion
of each person signing such certificate as to the fair value (within 90 days
of such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture Trustee
an Officer's Certificate certifying or stating the opinion of any signer
thereof as to the matters described in clause (i) above, the Issuer
shall also deliver to the Indenture Trustee an Independent Certificate as to
the same matters, if the fair value to the Issuer of the securities to be
so deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then-current calendar
year, as set forth in the certificates delivered pursuant to clause (i) above
and this clause (ii), is 10% or more of the Outstanding Amount of the Notes,
but such a certificate need not be furnished with respect to any securities
so deposited, if the fair value thereof to the Issuer as set forth in the
related Officer's Certificate is less than $25,000 or less than one percent
of the then Outstanding Amount of the Notes.
(iii) Whenever any property or securities are to be released from the lien of
this Indenture, the Issuer shall also furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 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 the Issuer
is required to furnish to the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of any signer thereof as to the matters
described in clause (iii) above, the Issuer shall also furnish to the
Indenture Trustee an Independent Certificate as to the same matters if the
fair value of the property or securities and of all other property or
securities released from the lien of this Indenture since the commencement of
the then-current calendar year, as set forth in the certificates required by
clause (iii) above and this clause (iii), equals 10% or more of the
Outstanding Amount of the Notes, but such certificate need not be furnished in
the case of any release of property or securities if the fair value thereof as
set forth in the related Officer's Certificate is less than $25,000 or less
than one percent of the then Outstanding Amount of the Notes. Section 1Form of
Documents Delivered to Indenture Trustee . In any case where several matters
are required to be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified by, or covered
by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Servicer, the Seller, the Issuer or the
Administrator, stating that the information with respect to such factual
matters is in the possession of the Servicer, the Seller, the Issuer or the
Administrator, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application
or at the effective date of such certificate or report (as the case may be),
of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of the Issuer to have such application
granted or to the sufficiency of such certificate or report. The foregoing
shall not, however, be construed to affect the Indenture Trustee's right to
rely upon the truth and accuracy of any statement or opinion contained in any
such document as provided in Article VI.
Section 1Acts of Noteholders . (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Noteholders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument or
instruments are delivered to the Indenture Trustee, and, where it is hereby
expressly required, to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the Indenture Trustee and the Issuer, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such instrument or
writing may be proved in any manner that the Indenture Trustee deems
sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or
other action by the Holder of any Notes shall bind the Holder of every Note
issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation
of such action is made upon such Note. Section 1Notices, etc. to Indenture
Trustee, Issuer and Rating Agencies . Any request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders or other documents
provided or permitted by this Indenture shall be in writing and if such
request, demand, authorization, direction, notice, consent, waiver or act of
Noteholders is to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if in writing and mailed first-class,
postage prepaid to the Issuer addressed to: FIRSTPLUS Home Loan Owner Trust
1998-4, in care of Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx, or at
any other address previously furnished in writing to the Indenture Trustee by
the Issuer or the Administrator. The Issuer shall promptly transmit any notice
received by it from the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer,
the Indenture Trustee or the Owner Trustee shall be in writing, personally
delivered or mailed by certified mail, return receipt requested, to the
applicable address specified in the Sale and Servicing Agreement.
Section 1Notices 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 the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed
to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default
or Event of Default. Section 1[Reserved]
Section 11.07. 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 1Effect 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 11.09. Successors and Assigns . All covenants and agreements in this
Indenture and the Notes by the Issuer shall bind its successors and assigns,
whether so expressed or not. All agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents. Section 11.10.
Severability . In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby. Section 11.11. Benefits of Indenture and Consent of
Noteholders . 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 Collateral, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Each Noteholder and Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, consents to and agrees to be
bound by the terms and conditions of 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, AND,
TO THE EXTENT PERMITTED BY LAW 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 the Issuer and
at its expense accompanied by an Opinion of Counsel (which may be counsel to
the Indenture Trustee or any other counsel reasonably acceptable to the
Indenture Trustee) to the effect that such recording is necessary either for
the protection of the Noteholders or any other Person secured hereunder or for
the enforcement of any right or remedy granted to the Indenture Trustee under
this Indenture. Section 11.16. Issuer Obligations . No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer, the
Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or
any certificate or other writing delivered in connection herewith or
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture
Trustee or the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the Indenture
Trustee and the 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 the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Article VI, VII and VIII of the Trust Agreement. Section
11.17. No Petition . The Indenture Trustee, by entering into this Indenture,
and each Noteholder, by its acceptance of a Note, hereby covenant and agree
that they will not at any time institute against the Seller or the Servicer,
or join in any institution against the Seller or the Servicer, 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 . The Issuer agrees
that, on reasonable prior notice, it will permit any representative of the
Indenture Trustee during the Issuer's normal business hours, to examine all
the books of account, records, reports and other papers of the Issuer, to make
copies and extracts therefrom, to cause such books to be audited by
Independent certified public accountants, and to discuss the Issuer's affairs,
finances and accounts with the Issuer's officers, employees, and Independent
certified public accountants, all at such reasonable times and as often as may
be reasonably requested. The 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 the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto
duly authorized and duly attested, all as of the day and year first above
written.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
By: Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee
By:
Name: Xxxxx Xxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By:
Name:
Title:
STATE OF DELAWARE )
)
COUNTY OF NEWCASTLE )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared Xxxxx Xxxxxx, known to me to
be the person and officer whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said WILMINGTON TRUST
COMPANY, not in its individual capacity, but solely as Owner Trustee on behalf
of FIRSTPLUS HOME LOAN OWNER TRUST 1998-4, a Delaware business trust, and that
such person executed the same as the act of said business trust for the
purpose and consideration therein expressed, and in the capacities therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of June, 1998.
Notary Public in and for the State of Delaware
My commission expires:
STATE OF MINNESOTA )
)
COUNTY OF XXXXXX )
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared , known to me to be the
person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of U.S. BANK NATIONAL
ASSOCIATION, a national banking association, and that such person executed the
same as the act of said corporation for the purpose and consideration therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of June, 1998.
Notary Public in and for the State of Minnesota
(My commission expires:
SCHEDULE I
(To be Provided at the Closing and Supplemented on each Subsequent
Transfer Date on which Subsequent Home Loans are transferred to the Trust)
X-0-0
XXXXXXX X-0
Form of Class A-1 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
CLASS A-1 ASSET BACKED NOTES
Original Principal Balance of the Class A-1 Notes:
Original Principal Balance of this Note:
Interest Rate: Variable
Cut-Off Date: May , 1998
Number CUSIP:
FIRSTPLUS Home Loan Owner Trust 1998-4, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of DOLLARS AND NO/100 ($ ) payable on
each Payment Date in an amount equal to the result obtained by multiplying (i)
a fraction the numerator of which is and the denominator of which is $
by (ii) the aggregate amount, if any, payable from the Note Payment Account
in respect of principal on the Class A-1 Notes pursuant to Section 8.02(a) of
the Indenture dated as of June 1, 1998, between the Issuer and U.S. Bank
National Association, a national banking association, as Indenture Trustee
(the "Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of (i) the Payment
Date occurring in January 2011 (the "Maturity Date"), (ii) the Termination
Date, if any, pursuant to Section 10.01 of the Indenture, or (iii) the date on
which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Majority Highest Priority Class Noteholders have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.02 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture and the Sale and Servicing Agreement, which
Indenture also contains rules as to construction that shall be applicable
herein.
The Issuer will pay interest on this Note at a per annum rate equal
to LIBOR for the related Accrual Period plus 0.04%, subject to a maximum rate
equal to the Net Weighted Average Rate, on the principal amount of this Note
outstanding on the immediately preceding Payment Date (after giving effect to
all payments of principal made on such preceding Payment Date) on each Payment
Date until the principal of this Note is paid or made available for payment in
full. The Interest Rate on this Note will increase by 0.50% with respect to
each Payment Date occurring after the date on which the Pool Principal Balance
has declined to 10% or less of the Assumed Pool Principal Balance. Interest on
this Note will accrue for each Payment Date during the period beginning on the
Payment Date in the calendar month immediately preceding such Payment Date
(or, in the case of the first Payment Date, beginning on the Closing Date),
and ending on the day immediately preceding the related Payment Date (each, an
"Accrual Period"). Interest will be computed on the basis of a 360-day year
and the actual number of days elapsed in each Accrual Period. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By:
Authorized Signatory
Dated: June , 1998
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as Indenture
Trustee,
By:
Authorized Signatory
Dated: June , 1998
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
This Note is one of a duly authorized issue of Notes of the Issuer,
all issued under the Indenture, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. To the extent that any provision of this
Note contradicts or is inconsistent with the provisions of the Indenture, the
provisions of the Indenture shall control and supersede such contradictory or
inconsistent provision herein. This Note is subject to all terms of the
Indenture.
The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7 and Class A-8 Notes (collectively, the "Senior Notes") are, and will
be, equally and ratably secured by the collateral pledged as security therefor
as provided in the Indenture. The rights of the Holders of the Class M-1,
Class M-2 and Class B-1 Notes and the Holder of the Residual Interest
Certificate to receive payments or distribution of interest and principal are,
and will be, subordinate to the rights of the Holders of the Senior Notes to
receive payments of interest and principal, respectively, as provided in the
Indenture. The Class Principal Balances of the Class M-1, Class M-2 and Class
B-1 Notes may be reduced by the application of Allocable Loss Amounts, as
provided in the Indenture.
Principal of this Note will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the 10th day of each
month or, if any such date is not a Business Day, the next succeeding Business
Day, commencing in July 1998.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the earlier of the Maturity Date and the
Termination Date, if any, pursuant to Section 10.01 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee, at the direction or upon
the prior written consent of the Majority Highest Priority Class Noteholders,
has declared the Notes to be immediately due and payable in the manner
provided in Section 5.02 of the Indenture. All principal payments on this
Class of Notes shall be made PRO RATA to the Holders of Notes of such Class
entitled thereto.
Payments of interest on this Note due and payable on each Payment
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be made by check mailed to the Person whose
name appears as the Registered Holder of this Note (or one or more Predecessor
Notes) on the Note Register as of the close of business on each Record Date,
except that, with respect to Notes registered on the Record Date in the name
of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payments will be made by wire transfer in immediately available funds to
the account designated by such nominee. Checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) effected by any payments made
on any Payment Date or by the application of Allocable Loan Amounts shall be
binding upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee,
in the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed or transmitted by facsimile prior to such Payment Date, and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate Trust
Office or at the office of the Indenture Trustee's agent appointed for such
purposes located in The City of New York.
As provided in the Indenture and the Sale and Servicing Agreement,
this Note may be redeemed in whole, but not in part, at the option of the
Seller, on or after any Payment Date on which the Pool Principal Balance
declines to 10% or less of the Assumed Pool Principal Balance, in the manner
and to the extent provided in the Indenture and the Sale and Servicing
Agreement.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note
Register upon surrender of this Note for registration of transfer at the
office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, which requirements include membership or participation in
the Securities Transfer Agent's Medallion Program ("STAMP") or such other
"signature guarantee program" as may be determined by the Note Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended, and thereupon one or more new
Notes of authorized denominations and in the same aggregate principal amount
will be issued to the designated transferee or transferees. No service charge
will be charged for any registration of transfer or exchange of this Note, but
the transferor may be required to pay a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder and Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee
in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture
Trustee or the Owner Trustee 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 or failure
to pay any installment or call owing to such entity.
Each Noteholder and Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Noteholder or Note Owner
will not at any time institute against the Seller or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Basic Documents.
Each Noteholder and Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, consents to and agrees
to be bound by the terms and conditions of the Indenture.
The Issuer has entered into the Indenture and this Note is issued
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness of the
Issuer secured by the Collateral. Each Noteholder, by acceptance of a Note
(and each Note Owner by acceptance of a beneficial interest in a Note), agrees
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day
of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Issuer, the Indenture Trustee or any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting the Majority Highest Priority
Class Noteholders, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note (or any one or more Predecessor Notes) shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the amendment
thereof, in certain limited circumstances, or the waiver of certain terms and
conditions set forth in the Indenture, without the consent of Holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of the Issuer in its individual
capacity, the Owner Trustee in its individual capacity, any owner of a
beneficial interest in the Issuer, or any of their respective partners,
beneficiaries, agents, officers, directors, employees or successors or assigns
shall be personally liable for, nor shall recourse be had to any of them for,
the payment of principal of or interest on this Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture. The Holder of this Note by its acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case
of an Event of Default under the Indenture, the Holder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in
this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ________________________, attorney, to transfer said Note on
the books kept for registration thereof, with full power of substitution
in the premises.
Dated: */
Signature Guaranteed:
*/
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar, which requirements include membership
or participation in STAMP or such other "signature guarantee program" as may
be determined by the Note Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
X-0-0
XXXXXXX X-0
Form of Class A-2 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
CLASS A-2 ASSET BACKED NOTES
Original Principal Balance of the Class A-2 Notes:
Original Principal Balance of this Note:
Interest Rate: %
Cut-Off Date: May , 1998
Number CUSIP:
FIRSTPLUS Home Loan Owner Trust 1998-4, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of DOLLARS AND NO/100 ($ ) payable on
each Payment Date in an amount equal to the result obtained by multiplying (i)
a fraction the numerator of which is $ and the denominator of which is $ by
(ii) the aggregate amount, if any, payable from the Note Payment Account in
respect of principal on the Class A-2 Notes pursuant to Section 8.02(a) of the
Indenture dated as of June 1, 1998, between the Issuer and U.S. Bank National
Association, a national banking association, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of (i) the Payment
Date occurring in July 2012 (the "Maturity Date"), (ii) the Termination Date,
if any, pursuant to Section 10.01 of the Indenture, or (iii) the date on which
an Event of Default shall have occurred and be continuing, if the Indenture
Trustee or the Majority Highest Priority Class Noteholders have declared the
Notes to be immediately due and payable in the manner provided in Section 5.02
of the Indenture. Capitalized terms used but not defined herein are defined in
the Indenture and the Sale and Servicing Agreement, which Indenture also
contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the per annum rate shown
above on the principal amount of this Note outstanding on the immediately
preceding Payment Date (after giving effect to all payments of principal made
on such preceding Payment Date) on each Payment Date until the principal of
this Note is paid or made available for payment in full. The Interest Rate on
this Note will increase by 0.50% with respect to each Payment Date occurring
after the date on which the Pool Principal Balance has declined to 10% or less
of the Assumed Pool Principal Balance. Interest on this Note will accrue for
each Payment Date during the calendar month immediately preceding such Payment
Date or, in the case of the first Payment Date, the period from the Closing
Date through the end of June 1998 (each, an "Accrual Period"). Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
under the Trust Agreement
By:
Authorized Signatory
Dated: June , 1998
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as Indenture
Trustee,
By:
Authorized Signatory
Dated: June , 1998
[For Reverse of Class A-2 Note, see Form of Class A-1 Note]
X-0-0
XXXXXXX X-0
Form of Class A-3 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
CLASS A-3 ASSET BACKED NOTES
Original Principal Balance of the Class A-3 Notes:
Original Principal Balance of this Note:
Interest Rate: %
Cut-Off Date: May , 1998
Number CUSIP:
FIRSTPLUS Home Loan Owner Trust 1998-4, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of DOLLARS AND NO/100 ($ ) payable on
each Payment Date in an amount equal to the result obtained by multiplying (i)
a fraction the numerator of which is $ and the denominator of which is $ by
(ii) the aggregate amount, if any, payable from the Note Payment Account in
respect of principal on the Class A-3 Notes pursuant to Section 8.02(a) of the
Indenture dated as of June 1, 1998, between the Issuer and U.S. Bank National
Association, a national banking association, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of (i) the Payment
Date occurring in May 2015 (the "Maturity Date"), (ii) the Termination Date,
if any, pursuant to Section 10.01 of the Indenture, or (iii) the date on which
an Event of Default shall have occurred and be continuing, if the Indenture
Trustee or the Majority Highest Priority Class Noteholders have declared the
Notes to be immediately due and payable in the manner provided in Section 5.02
of the Indenture. Capitalized terms used but not defined herein are defined in
the Indenture and the Sale and Servicing Agreement, which Indenture also
contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the per annum rate shown
above on the principal amount of this Note outstanding on the immediately
preceding Payment Date (after giving effect to all payments of principal made
on such preceding Payment Date) on each Payment Date until the principal of
this Note is paid or made available for payment in full. The Interest Rate on
this Note will increase by 0.50% with respect to each Payment Date occurring
after the date on which the Pool Principal Balance has declined to 10% or less
of the Assumed Pool Principal Balance. Interest on this Note will accrue for
each Payment Date during the calendar month immediately preceding such Payment
Date or, in the case of the first Payment Date, the period from the Closing
Date through the end of June 1998 (each, an "Accrual Period"). Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
under the Trust Agreement
By:
Authorized Signatory
Dated: June , 1998
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee,
By:
Authorized Signatory
Dated: June , 1998
[For Reverse of Class A-3 Note, see Form of Class A-1 Note]
X-0-0
XXXXXXX X-0
Form of Class A-4 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
CLASS A-4 ASSET BACKED NOTES
Original Principal Balance of the Class A-4 Notes:
Original Principal Balance of this Note:
Interest Rate: %
Cut-Off Date: May , 1998
Number CUSIP:
FIRSTPLUS Home Loan Owner Trust 1998-4, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of DOLLARS AND NO/100 ($ ) payable on
each Payment Date in an amount equal to the result obtained by multiplying (i)
a fraction the numerator of which is $ and the denominator of which is $ by
(ii) the aggregate amount, if any, payable from the Note Payment Account in
respect of principal on the Class A-4 Notes pursuant to Section 8.02(a) of the
Indenture dated as of June 1, 1998, between the Issuer and U.S. Bank National
Association, a national banking association, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of (i) the Payment
Date occurring in March 2017 (the "Maturity Date"), (ii) the Termination Date,
if any, pursuant to Section 10.01 of the Indenture, or (iii) the date on which
an Event of Default shall have occurred and be continuing, if the Indenture
Trustee or the Majority Highest Priority Class Noteholders have declared the
Notes to be immediately due and payable in the manner provided in Section 5.02
of the Indenture. Capitalized terms used but not defined herein are defined in
the Indenture and the Sale and Servicing Agreement, which Indenture also
contains rules as to construction that shall be applicable herein.
The Issuer will pay interest on this Note at the per annum rate shown
above on the principal amount of this Note outstanding on the immediately
preceding Payment Date (after giving effect to all payments of principal made
on such preceding Payment Date) on each Payment Date until the principal of
this Note is paid or made available for payment in full. The Interest Rate on
this Note will increase by 0.50% with respect to each Payment Date occurring
after the date on which the Pool Principal Balance has declined to 10% or less
of the Assumed Pool Principal Balance. Interest on this Note will accrue for
each Payment Date during the calendar month immediately preceding such Payment
Date or, in the case of the first Payment Date, the period from the Closing
Date through the end of June 1998 (each, an "Accrual Period"). Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
under the Trust Agreement
By:
Authorized Signatory
Dated: June , 1998
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as Indenture
Trustee,
By:
Authorized Signatory
Dated: June , 1998
[For Reverse of Class A-4 Note, see Form of Class A-1 Note]
X-0-0
XXXXXXX X-0
Form of Class A-5 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
CLASS A-5 ASSET BACKED NOTES
Original Principal Balance of the Class A-5 Notes:
Original Principal Balance of this Note:
Interest Rate: %
Cut-Off Date: May , 1998 -------
------
Number CUSIP:
FIRSTPLUS Home Loan Owner Trust 1998-4, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of DOLLARS AND NO/100 ($ ) payable on
each Payment Date in an amount equal to the result obtained by multiplying (i)
a fraction the numerator of which is $ and the denominator of which is $ by
(ii) the aggregate amount, if any, payable from the Note Payment Account in
respect of principal on the Class A-5 Notes pursuant to Section 8.02(a) of the
Indenture dated as of June 1, 1998, between the Issuer and U.S. Bank National
Association, a national banking association, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of (i) the Payment
Date occurring in January 2018 (the "Maturity Date"), (ii) the Termination
Date, if any, pursuant to Section 10.01 of the Indenture, or (iii) the date on
which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Majority Highest Priority Class Noteholders have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.02 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture and the Sale and Servicing Agreement, which
Indenture also contains rules as to construction that shall be applicable
herein.
The Issuer will pay interest on this Note at the per annum rate shown
above on the principal amount of this Note outstanding on the immediately
preceding Payment Date (after giving effect to all payments of principal made
on such preceding Payment Date) on each Payment Date until the principal of
this Note is paid or made available for payment in full. The Interest Rate on
this Note will increase by 0.50% with respect to each Payment Date occurring
after the date on which the Pool Principal Balance has declined to 10% or less
of the Assumed Pool Principal Balance. Interest on this Note will accrue for
each Payment Date during the calendar month immediately preceding such Payment
Date or, in the case of the first Payment Date, the period from the Closing
Date through the end of June 1998 (each, an "Accrual Period"). Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
under the Trust Agreement
By:
Authorized Signatory
Dated: June , 1998
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee,
By:
Authorized Signatory
Dated: June , 1998
[For Reverse of Class A-5 Note, see Form of Class A-1 Note]
X-0-0
XXXXXXX X-0
Form of Class A-6 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
CLASS A-6 ASSET BACKED NOTES
Original Principal Balance of the Class A-6 Notes:
Original Principal Balance of this Note:
Interest Rate: %
Cut-Off Date: May , 1998
Number CUSIP:
FIRSTPLUS Home Loan Owner Trust 1998-4, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of DOLLARS AND NO/100 ($ ) payable on
each Payment Date in an amount equal to the result obtained by multiplying (i)
a fraction the numerator of which is $ and the denominator of which is $ by
(ii) the aggregate amount, if any, payable from the Note Payment Account in
respect of principal on the Class A-6 Notes pursuant to Section 8.02(a) of the
Indenture dated as of June 1, 1998, between the Issuer and U.S. Bank National
Association, a national banking association, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of (i) the Payment
Date occurring in August 2021 (the "Maturity Date"), (ii) the Termination
Date, if any, pursuant to Section 10.01 of the Indenture, or (iii) the date on
which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Majority Highest Priority Class Noteholders have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.02 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture and the Sale and Servicing Agreement, which
Indenture also contains rules as to construction that shall be applicable
herein.
The Issuer will pay interest on this Note at the per annum rate shown
above on the principal amount of this Note outstanding on the immediately
preceding Payment Date (after giving effect to all payments of principal made
on such preceding Payment Date) on each Payment Date until the principal of
this Note is paid or made available for payment in full. The Interest Rate on
this Note will increase by 0.50% with respect to each Payment Date occurring
after the date on which the Pool Principal Balance has declined to 10% or less
of the Assumed Pool Principal Balance. Interest on this Note will accrue for
each Payment Date during the calendar month immediately preceding such Payment
Date or, in the case of the first Payment Date, the period from the Closing
Date through the end of June 1998 (each, an "Accrual Period"). Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
under the Trust Agreement
By:
Authorized Signatory
Dated: June , 1998
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as Indenture
Trustee,
By:
Authorized Signatory
Dated: June , 1998
[For Reverse of Class A-6 Note, see Form of Class A-1 Note]
X-0-0
XXXXXXX X-0
Form of Class A-7 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
CLASS A-7 ASSET BACKED NOTES
Original Principal Balance of the Class A-7 Notes:
Original Principal Balance of this Note:
Interest Rate: %
Cut-Off Date: May , 1998
Number CUSIP:
FIRSTPLUS Home Loan Owner Trust 1998-4, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of DOLLARS AND NO/100 ($ ) payable on
each Payment Date in an amount equal to the result obtained by multiplying (i)
a fraction the numerator of which is $ and the denominator of which is $
by (ii) the aggregate amount, if any, payable from the Note Payment Account
in respect of principal on the Class A-7 Notes pursuant to Section 8.02(a) of
the Indenture dated as of June 1, 1998, between the Issuer and U.S. Bank
National Association, a national banking association, as Indenture Trustee
(the "Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of (i) the Payment
Date occurring in September 2022 (the "Maturity Date"), (ii) the Termination
Date, if any, pursuant to Section 10.01 of the Indenture, or (iii) the date on
which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Majority Highest Priority Class Noteholders have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.02 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture and the Sale and Servicing Agreement, which
Indenture also contains rules as to construction that shall be applicable
herein.
The Issuer will pay interest on this Note at the per annum rate shown
above on the principal amount of this Note outstanding on the immediately
preceding Payment Date (after giving effect to all payments of principal made
on such preceding Payment Date) on each Payment Date until the principal of
this Note is paid or made available for payment in full. The Interest Rate on
this Note will increase by 0.50% with respect to each Payment Date occurring
after the date on which the Pool Principal Balance has declined to 10% or less
of the Assumed Pool Principal Balance. Interest on this Note will accrue for
each Payment Date during the calendar month immediately preceding such Payment
Date or, in the case of the first Payment Date, the period from the Closing
Date through the end of June 1998 (each, an "Accrual Period"). Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
under the Trust Agreement
By:
Authorized Signatory
Dated: June , 1998
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee,
By:
Authorized Signatory
Dated: June , 1998
[For Reverse of Class A-7 Note, see Form of Class A-1 Note]
X-0-0
XXXXXXX X-0
Form of Class A-8 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
CLASS A-8 ASSET BACKED NOTES
Original Principal Balance of the Class A-8 Notes:
Original Principal Balance of this Note:
Interest Rate: %
Cut-Off Date: May , 1998
Number CUSIP:
FIRSTPLUS Home Loan Owner Trust 1998-4, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of DOLLARS AND NO/100 ($ ) payable on
each Payment Date in an amount equal to the result obtained by multiplying (i)
a fraction the numerator of which is $ and the denominator of which is $ 0 by
(ii) the aggregate amount, if any, payable from the Note Payment Account in
respect of principal on the Class A-8 Notes pursuant to Section 8.02(a) of the
Indenture dated as of June 1, 1998, between the Issuer and U.S. Bank National
Association, a national banking association, as Indenture Trustee (the
"Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of (i) the Payment
Date occurring in September 2024 (the "Maturity Date"), (ii) the Termination
Date, if any, pursuant to Section 10.01 of the Indenture, or (iii) the date on
which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Majority Highest Priority Class Noteholders have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.02 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture and the Sale and Servicing Agreement, which
Indenture also contains rules as to construction that shall be applicable
herein.
The Issuer will pay interest on this Note at the per annum rate shown
above on the principal amount of this Note outstanding on the immediately
preceding Payment Date (after giving effect to all payments of principal made
on such preceding Payment Date) on each Payment Date until the principal of
this Note is paid or made available for payment in full. The Interest Rate on
this Note will increase by 0.50% with respect to each Payment Date occurring
after the date on which the Pool Principal Balance has declined to 10% or less
of the Assumed Pool Principal Balance. Interest on this Note will accrue for
each Payment Date during the calendar month immediately preceding such Payment
Date or, in the case of the first Payment Date, the period from the Closing
Date through the end of June 1998 (each, an "Accrual Period"). Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
under the Trust Agreement
By:
Authorized Signatory
Dated: June , 1998
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee,
By:
Authorized Signatory
Dated: June , 1998
[For Reverse of Class A-8 Note, see Form of Class A-1 Note]
X-0-0
XXXXXXX X-0
Form of Class M-1 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
THIS NOTE IS SUBORDINATE IN RIGHT OF PAYMENT AS DESCRIBED IN THE SALE AND
SERVICING AGREEMENT REFERRED TO HEREIN.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
CLASS M-1 ASSET BACKED NOTES
Original Principal Balance of the Class M-1 Notes:
Original Principal Balance of this Note:
Interest Rate: %
Cut-Off Date: May , 1998
Number CUSIP:
FIRSTPLUS Home Loan Owner Trust 1998-4, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of DOLLARS AND NO/100 ($ ) payable on
each Payment Date in an amount equal to the result obtained by multiplying (i)
a fraction the numerator of which is $ and the denominator of which is $
by (ii) the aggregate amount, if any, payable from the Note Payment Account
in respect of principal on the Class M-1 Notes pursuant to Section 8.02(a) of
the Indenture dated as of June 1, 1998, between the Issuer and U.S. Bank
National Association, a national banking association, as Indenture Trustee
(the "Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of (i) the Payment
Date occurring in September 2024 (the "Maturity Date"), (ii) the Termination
Date, if any, pursuant to Section 10.01 of the Indenture, or (iii) the date on
which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Majority Highest Priority Class Noteholders have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.02 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture and the Sale and Servicing Agreement, which
Indenture also contains rules as to construction that shall be applicable
herein.
The Issuer will pay interest on this Note at the per annum rate shown
above on the principal amount of this Note outstanding on the immediately
preceding Payment Date (after giving effect to all payments of principal made
on such preceding Payment Date) on each Payment Date until the principal of
this Note is paid or made available for payment in full. The Interest Rate on
this Note will increase by 0.50% with respect to each Payment Date occurring
after the date on which the Pool Principal Balance has declined to 10% or less
of the Assumed Pool Principal Balance. Interest on this Note will accrue for
each Payment Date during the calendar month immediately preceding such Payment
Date or, in the case of the first Payment Date, the period from the Closing
Date through the end of June 1998 (each, an "Accrual Period"). Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
under the Trust Agreement
By:
Authorized Signatory
Dated: June , 1998
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee,
By:
Authorized Signatory
Dated: June , 1998
[For Reverse of Class M-1 Note, see Form of Class A-1 Note]
A-10-3
EXHIBIT A-10
Form of Class M-2 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
THIS NOTE IS SUBORDINATE IN RIGHT OF PAYMENT AS DESCRIBED IN THE SALE AND
SERVICING AGREEMENT REFERRED TO HEREIN.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
CLASS M-2 ASSET BACKED NOTES
Original Principal Balance of the Class M-2 Notes:
Original Principal Balance of this Note:
Interest Rate: %
Cut-Off Date: May , 1998
Number CUSIP:
FIRSTPLUS Home Loan Owner Trust 1998-4, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of DOLLARS AND NO/100 ($ ) payable on
each Payment Date in an amount equal to the result obtained by multiplying (i)
a fraction the numerator of which is $ and the denominator of which is $
by (ii) the aggregate amount, if any, payable from the Note Payment Account
in respect of principal on the Class M-2 Notes pursuant to Section 8.02(a) of
the Indenture dated as of June 1, 1998, between the Issuer and U.S. Bank
National Association, a national banking association, as Indenture Trustee
(the "Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of (i) the Payment
Date occurring in September 2024 (the "Maturity Date"), (ii) the Termination
Date, if any, pursuant to Section 10.01 of the Indenture, or (iii) the date on
which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Majority Highest Priority Class Noteholders have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.02 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture and the Sale and Servicing Agreement, which
Indenture also contains rules as to construction that shall be applicable
herein.
The Issuer will pay interest on this Note at the per annum rate shown
above on the principal amount of this Note outstanding on the immediately
preceding Payment Date (after giving effect to all payments of principal made
on such preceding Payment Date) on each Payment Date until the principal of
this Note is paid or made available for payment in full. The Interest Rate on
this Note will increase by 0.50% with respect to each Payment Date occurring
after the date on which the Pool Principal Balance has declined to 10% or less
of the Assumed Pool Principal Balance. Interest on this Note will accrue for
each Payment Date during the calendar month immediately preceding such Payment
Date or, in the case of the first Payment Date, the period from the Closing
Date through the end of June 1998 (each, an "Accrual Period"). Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
under the Trust Agreement
By:
Authorized Signatory
Dated: June , 1998
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee,
By:
Authorized Signatory
Dated: June , 1998
[For Reverse of Class M-2 Note, see Form of Class A-1 Note]
A-11-3
EXHIBIT A-11
Form of Class B-1 Note
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
THIS NOTE IS SUBORDINATE IN RIGHT OF PAYMENT AS DESCRIBED IN THE SALE AND
SERVICING AGREEMENT REFERRED TO HEREIN.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
CLASS B-1 ASSET BACKED NOTES
Original Principal Balance of the Class B-1 Notes:
Original Principal Balance of this Note:
Interest Rate: %
Cut-Off Date: May 31, 1998
Number CUSIP:
FIRSTPLUS Home Loan Owner Trust 1998-4, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of DOLLARS AND NO/100 ($ ) payable on
each Payment Date in an amount equal to the result obtained by multiplying (i)
a fraction the numerator of which is $ and the denominator of which is $
by (ii) the aggregate amount, if any, payable from the Note Payment Account
in respect of principal on the Class B-1 Notes pursuant to Section 8.02(a) of
the Indenture dated as of June 1, 1998, between the Issuer and U.S. Bank
National Association, a national banking association, as Indenture Trustee
(the "Indenture Trustee"); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the earlier of (i) the Payment
Date occurring in September 2024 (the "Maturity Date"), (ii) the Termination
Date, if any, pursuant to Section 10.01 of the Indenture, or (iii) the date on
which an Event of Default shall have occurred and be continuing, if the
Indenture Trustee or the Majority Highest Priority Class Noteholders have
declared the Notes to be immediately due and payable in the manner provided in
Section 5.02 of the Indenture. Capitalized terms used but not defined herein
are defined in the Indenture and the Sale and Servicing Agreement, which
Indenture also contains rules as to construction that shall be applicable
herein.
The Issuer will pay interest on this Note at the per annum rate shown
above on the principal amount of this Note outstanding on the immediately
preceding Payment Date (after giving effect to all payments of principal made
on such preceding Payment Date) on each Payment Date until the principal of
this Note is paid or made available for payment in full. The Interest Rate on
this Note will increase by 0.50% with respect to each Payment Date occurring
after the date on which the Pool Principal Balance has declined to 10% or less
of the Assumed Pool Principal Balance. Interest on this Note will accrue for
each Payment Date during the calendar month immediately preceding such Payment
Date or, in the case of the first Payment Date, the period from the Closing
Date through the end of June 1998 (each, an "Accrual Period"). Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of
this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
FIRSTPLUS HOME LOAN OWNER TRUST 1998-4
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
under the Trust Agreement
By:
Authorized Signatory
Dated: June , 1998
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but solely as Indenture
Trustee,
By:
Authorized Signatory
Dated: June , 1998
[For Reverse of Class B-1 Note, see Form of Class A-1 Note]
