EXHIBIT 10.4
EXECUTION COPY
BAY VIEW 2005 WAREHOUSE TRUST
ISSUER
AND
JPMORGAN CHASE BANK, N.A.
INDENTURE TRUSTEE
INDENTURE
DATED AS OF JUNE 20, 2005
$450,000,000
BAY VIEW 2005 WAREHOUSE TRUST
AUTOMOBILE RECEIVABLES-BACKED NOTES, SERIES 2005-1
Table of Contents
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Article I
Definitions.............................................................. 2
Section 1.01. General Definitions........................................ 2
Section 1.02. Calculations............................................... 27
Article II
The Notes; Reconveyance.................................................. 27
Section 2.01. General.................................................... 27
Section 2.02. Forms of Notes............................................. 28
Section 2.03. Payment of Principal and Interest.......................... 28
Section 2.04. Payments to Noteholders.................................... 29
Section 2.05. Execution, Authentication, Delivery and Dating............. 29
Section 2.06. Registration, Registration of Transfer and Exchange........ 30
Section 2.07. Transfer and Exchange...................................... 31
Section 2.08. Xxxxxxxxx, Destroyed, Lost or Stolen Notes................. 32
Section 2.09. Persons Deemed Noteholders................................. 32
Section 2.10. Cancellation of Notes...................................... 33
Section 2.11. Conditions to Closing...................................... 33
Section 2.12. Funding Events............................................. 35
Section 2.13. Fundings................................................... 37
Section 2.14. Fundings by Noteholders.................................... 38
Section 2.15. Access to List of Noteholders' Names and Addresses......... 38
Article III
Covenants; Collateral; Representations; Warranties....................... 38
Section 3.01. Performance of Obligations................................. 38
Section 3.02. Negative Covenants......................................... 39
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Table of Contents
(continued)
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Section 3.03. Money for Note Payments.................................... 40
Section 3.04. Restriction of Issuer Activities........................... 42
Section 3.05. Protection of Trust Estate................................. 42
Section 3.06. Opinions as to Trust Estate................................ 44
Section 3.07. Statement as to Compliance................................. 45
Section 3.08. Limitations on Lien........................................ 45
Section 3.09. Recording.................................................. 45
Section 3.10. Agreements Not to Institute Bankruptcy Proceedings;
Additional Covenants....................................... 46
Section 3.11. Providing of Notice........................................ 48
Section 3.12. Representations and Warranties of the Issuer............... 48
Section 3.13. Representations and Warranties of the Indenture Trustee ... 52
Section 3.14. Performance of Obligation.................................. 53
Section 3.15. Hedge Agreement Provisions................................. 54
Article IV
Administration and Servicing of Receivables.............................. 55
Section 4.01. Sale and Servicing Agreement............................... 55
Article V
Accounts, Collections, Payments of Interest and Principal, Releases,
Spread Account, and Statements to Noteholders........................... 56
Section 5.01. Accounts................................................... 56
Section 5.02. Collection Account and Spread Account...................... 58
Section 5.03. Distribution of Funds in the Collection Account............ 60
Section 5.04. Note Payments.............................................. 62
Section 5.05. Statements to Noteholders; Tax Returns..................... 63
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Table of Contents
(continued)
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Section 5.06. Reports by Indenture Trustee............................... 63
Section 5.07. Final Balances............................................. 63
Article VI
Repayment of Notes....................................................... 63
Section 6.01. Optional Repayment......................................... 63
Section 6.02. Repayment Payments......................................... 64
Section 6.03. Cancellation of Notes...................................... 64
Section 6.04. Release of Collateral...................................... 65
Article VII
The Indenture Trustee.................................................... 66
Section 7.01. Duties of Indenture Trustee................................ 66
Section 7.02. Notice of Termination Event, Default, Servicer Event of
Default or Event of Default................................ 68
Section 7.03. Rights of Indenture Trustee................................ 68
Section 7.04. Not Responsible for Recitals, Issuance of Notes or
Application of Moneys as Directed.......................... 69
Section 7.05. May Hold Notes............................................. 69
Section 7.06. Money Held in Trust........................................ 69
Section 7.07. Compensation and Reimbursement............................. 69
Section 7.08. Eligibility; Disqualification.............................. 71
Section 7.09. Indenture Trustee's Capital and Surplus.................... 71
Section 7.10. Resignation and Removal; Appointment of Successor.......... 71
Section 7.11. Acceptance of Appointment by Successor..................... 72
Section 7.12. Merger, Conversion, Consolidation or Succession to
Business of Indenture Trustee.............................. 73
Section 7.13. Co-trustees and Separate Indenture Trustees................ 73
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Table of Contents
(continued)
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Section 7.14. Books and Records.......................................... 74
Section 7.15. Control.................................................... 74
Section 7.16. Suits for Enforcement...................................... 75
Article VIII
Event of Default......................................................... 75
Section 8.01. Events of Default.......................................... 75
Section 8.02. Actions of Indenture Trustee............................... 76
Section 8.03. Indenture Trustee May File Proofs of Claim................. 77
Section 8.04. Indenture Trustee May Enforce Claim Without Possession
of Notes................................................... 78
Section 8.05. Knowledge of Indenture Trustee............................. 78
Section 8.06. Limitation on Suits........................................ 78
Section 8.07. Unconditional Right of Noteholders to Receive Principal
and Interest............................................... 79
Section 8.08. Restoration of Rights and Remedies......................... 79
Section 8.09. Rights and Remedies Cumulative............................. 79
Section 8.10. Delay or Omission; Not Waiver.............................. 79
Section 8.11. Control by Noteholders..................................... 79
Section 8.12. Waiver of Certain Events by Less than All Noteholders...... 80
Section 8.13. Undertaking for Costs...................................... 80
Section 8.14. Waiver of Stay or Extension Laws........................... 80
Section 8.15. Sale of Trust Estate....................................... 81
Section 8.16. Action on Notes............................................ 81
Article IX
Supplemental Indentures.................................................. 82
Section 9.01. Supplemental Indentures Without Noteholder Approval........ 82
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Table of Contents
(continued)
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Section 9.02. Supplemental Indentures with Consent of Noteholders........ 82
Section 9.03. Execution of Amendments and Supplemental Indentures........ 84
Section 9.04. Effect of Amendments and Supplemental Indentures........... 84
Section 9.05. Reference in Notes to Amendments and Supplemental
Indentures................................................. 84
Section 9.06. Indenture Trustee to Act on Instructions................... 84
Article X
Miscellaneous............................................................ 85
Section 10.01. Compliance Certificates and Opinions; Furnishing of
Information............................................... 85
Section 10.02. Form of Documents Delivered to Indenture Trustee.......... 85
Section 10.03. Acts of Noteholders....................................... 86
Section 10.04. Notices, Etc.............................................. 86
Section 10.05. Notices and Reports to Noteholders; Waiver of Notices..... 88
Section 10.06. Rules by Indenture Trustee................................ 89
Section 10.07. Issuer Obligation......................................... 89
Section 10.08. Enforcement of Benefits................................... 89
Section 10.09. Effect of Headings and Table of Contents.................. 89
Section 10.10. Successors and Assigns.................................... 90
Section 10.11. Separability.............................................. 90
Section 10.12. Benefits of Indenture..................................... 90
Section 10.13. Legal Holidays............................................ 90
Section 10.14. Governing Law............................................. 90
Section 10.15. Counterparts.............................................. 90
Section 10.16. Recording of Indenture.................................... 90
Section 10.17. Further Assurances........................................ 91
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Table of Contents
(continued)
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Section 10.18. No Bankruptcy Petition Against the Issuer................. 91
Section 10.19. Limitation of Liability................................... 91
Section 10.20. Limitation on Recourse.................................... 91
Section 10.21. Confidentiality........................................... 91
Article XI
Termination.............................................................. 92
Section 11.01. Termination of Indenture.................................. 92
Schedule I - Schedule of Initial Receivables
Exhibit A - Form of Funding Certificate......................................... A-1
Exhibit B - Request for Release................................................. B-1
Exhibit C - Form of Notice of Funding........................................... C-1
Exhibit D - Form of Note........................................................ D-1
Exhibit E - Form of Transferee Letter........................................... E-1
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THIS INDENTURE (as amended or supplemented from time to time, the
"Indenture") is dated and made as of June 20, 2005 between Bay View 2005
Warehouse Trust, a statutory trust organized under the laws of the State of
Delaware, as issuer (the "Issuer"), and JPMorgan Chase Bank, N.A., a national
banking association, as trustee (the "Indenture Trustee").
PRELIMINARY STATEMENT
Pursuant to this Indenture, there is hereby duly authorized the execution
and delivery of the Issuer's Automobile Receivables-Backed Notes, Series 2005-1
(hereinafter called the "Notes"). All covenants and agreements made by the
Issuer herein are for the benefit and security of the Noteholders. The Issuer is
entering into this Indenture, and the Indenture Trustee is accepting the trusts
created hereby, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged.
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee, for the benefit of the
Noteholders, the Agent and the Financial Institutions, as their interests may
appear, all of the rights, title, interest and benefits of the Issuer in and to
(a) the Receivables identified on the Schedule of Receivables acquired by the
Issuer on the Closing Date and on each Funding Date and all moneys received
thereon on or after the applicable Cutoff Date; (b) the security interest of the
Issuer in the Financed Vehicles Granted by the Obligors pursuant to such
Receivables and any accessions thereto, and other interests of the Issuer in the
Financed Vehicles and accessions, including, without limitation, the related
Certificates of Title; (c) any service warranties and service contracts and any
physical damage, credit life, risk default, disability, gap or other insurance
policies covering the Financed Vehicles or the related Obligors and any refunds
in connection therewith relating to Receivables (including, without limitation,
State tax refunds) and any proceeds from liquidation of the Receivables or
Financed Vehicles received after the related Cutoff Date; (d) all property
(including the right to receive future Recoveries) that shall secure a
Receivable; (e) the rights that relate to a Receivable under each Dealer
Agreement and the rights under the Contribution Agreement, the Sale and
Servicing Agreement, the Custodian Agreement, each Contributor Assignment and
each Depositor Assignment, including, but not limited to, any recourse against
any Dealer, the Contributor or the Depositor and any rights or benefits of the
Issuer under the Sale and Servicing Agreement and the Custodian Agreement; (f)
rebates or refunds of premiums and other amounts relating to insurance policies
and other items financed under the Receivables or otherwise covering an Obligor
or a Financed Vehicle; (g) amounts from time to time deposited in the Collection
Account and the Spread Account and investments thereof; (h) the original retail
installment contracts and security agreements and any amendments thereof
evidencing the Receivables; (i) all documentation in the Custodian File and
other documents maintained by the Contributor according to its customary
procedures with respect to the Receivables, Financed Vehicles, Accounts or
Obligors; (j) each Hedge Agreement entered into by the Issuer pursuant to the
terms of Section 3.15 hereof and all payments made to the Issuer or the Servicer
by the Hedge Counterparty pursuant to any Hedge Agreement; and (k) the proceeds
of any and all of the foregoing, including all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or other property
whether now existing or hereinafter arising.
Such Grants are made in trust, to secure payments of amounts due with
respect to the Notes ratably and without prejudice, priority or distinction
between the Notes, and to secure (i) the payment of all amounts on the Notes as
such amounts become due in accordance with their terms, (ii) the payment of all
other sums payable in accordance with the provisions of this Indenture, and
(iii) compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Indenture Trustee acknowledges such Grants, accepts the trusts
hereunder in accordance with the provisions of this Indenture, and agrees to
perform the duties herein required pursuant to the terms and provisions of this
Indenture and subject to the conditions hereof.
PROVIDED, HOWEVER, that if there shall well and truly be paid the
principal of the Notes and the interest due or to become due on the Notes, at
the times and in the manner mentioned in the Notes, according to the true intent
and meaning thereof, and payments shall be made into the Collection Account as
required under this Indenture and the Issuer shall well and truly keep, perform
and observe all the covenants and conditions pursuant to the terms of this
Indenture to be kept, performed and observed by the Issuer, and the Issuer shall
pay or cause to be paid to the Indenture Trustee and all of its agents for the
registration, authentication, transfer or exchange of Notes all sums of money
due or to become due to it or them in accordance with the terms and provisions
hereof, then this Indenture and the rights hereby Granted shall cease, terminate
and be void; otherwise, except as provided in Article XI hereof, this Indenture
shall be and remain in full force and effect.
ARTICLE I
DEFINITIONS
Section 1.01. General Definitions. Except as otherwise specified or as the
context may otherwise require, the following terms have the respective meanings
set forth below for all purposes of this Indenture, and the definitions of such
terms are applicable to the singular as well as to the plural forms of such
terms and to the masculine as well as to the feminine and neuter genders of such
terms. Capitalized terms not defined herein shall have the meanings ascribed to
such terms as set forth in the Sale and Servicing Agreement or, if not defined
therein, in the Contribution Agreement.
"ABS Speed" means, at any time, the assumed rate of prepayments on the
Receivables based upon the "Absolute Prepayment Model" applied in accordance
with the then current market standards.
"Account Property" means the Accounts and all proceeds of the Accounts,
including, without limitation, all amounts and investments held from time to
time in any Account (whether in the form of deposit accounts, book-entry
securities, uncertificated securities, security entitlements (as defined in
Section 8-102(a)(17) of the UCC as enacted in the State of New York), financial
assets (as defined in Section 8-102(a)(9) of the UCC), or any other investment
property (as defined in Section 9-102(a)(49) of the UCC).
"Accounts" means, collectively, the Collection Account and the Spread
Account.
2
"Acknowledgement" means that certain receipt of Indenture Trustee, dated
as of the Closing Date, with respect to the Initial Receivables and any such
receipt with respect to Subsequent Receivables.
"Act" has the meaning specified in Section 10.03 hereof.
"Additional Note Principal Balance" has the meaning set forth in Section
2.13(a).
"Adjusted LIBOR Rate" shall have the meaning ascribed thereto in the Note
Purchase Agreement.
"Administrative Agent" shall have the meaning ascribed thereto in the Note
Purchase Agreement.
"Affiliate" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, a Person shall be deemed to "control"
another Person if the controlling Person owns 5% or more of any class of voting
securities of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Lender Group Agents and the Administrative Agent.
"Aggregate Receivable Balance" means, (i) with respect to the Closing
Date, the aggregate Receivable Balance of the Receivables as of the Initial
Cutoff Date, (ii) with respect to any Funding Date, the aggregate Receivable
Balance of the related Subsequent Receivables as of the related Cutoff Date plus
the aggregate Receivable Balance of all other Receivables as of such Funding
Date and (iii) with respect to any other date of determination, the aggregate
Receivable Balance on such date of determination of all Receivables owned by the
Issuer and Granted to the Indenture Trustee as of such date of determination.
"Amount Financed" means, with respect to a Receivable the amount advanced
under the Receivable toward the purchase price of the related Financed Vehicle
and any related costs, including but not limited to, service warranties and
service contracts, and physical damage, credit life, risk default, disability or
gap insurance covering the Financed Vehicle.
"Annual Percentage Rate" or "APR" means, with respect to a Receivable, the
annual rate of finance charges stated in the retail installment contract and
security agreement evidencing such Receivable.
"Applicable Margin" means one percent (1.00%).
"Authorized Officer" means, with respect to the Issuer, any officer of the
Owner Trustee or agent acting pursuant to a power of attorney of the Issuer, and
with respect to any other Person, the Chairman, Co-Chairman or Vice Chairman of
the Board of Directors, the President, any Vice President, or the Treasurer of
such Person.
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"Average Default Ratio" means, with respect to any Determination Date, the
arithmetic average of the Default Ratios for each of the three (3) Collection
Periods immediately preceding such Determination Date; provided however, that
(a) for the Determination Date occurring in July 2005, the "Average Default
Ratio" shall be the Default Ratio for the Collection Period immediately
preceding such Determination Date, and (b) for the Determination Date occurring
in August 2005, the "Average Default Ratio" shall be the arithmetic average of
the Default Ratios for each of the two (2) Collection Periods immediately
preceding such Determination Date.
"Average Delinquency Ratio" means, with respect to any Determination Date,
the arithmetic average of the Delinquency Ratios for each of the three (3)
Collection Periods immediately preceding such Determination Date; provided
however, that (a) for the Determination Date occurring in July 2005, the
"Average Delinquency Ratio" shall be the Delinquency Ratio for the Collection
Period immediately preceding such Determination Date, and (b) for the
Determination Date occurring in August 2005, the "Average Delinquency Ratio"
shall be the arithmetic average of the Delinquency Ratios for each of the two
(2) Collection Periods immediately preceding such Determination Date.
"Backup Servicer" means Systems & Services Technologies, Inc. and any
successor Backup Servicer under the Sale and Servicing Agreement.
"Bank of Montreal" means Bank of Montreal, a Canadian chartered bank
acting through its Chicago Branch.
"Bank Rate" means a per annum rate equal to LIBOR or the Prime Rate, as
determined in accordance with Section 2.04 of the Note Purchase Agreement.
"Base Rate" means a per annum rate equal to the greater of (A) XX Xxxxxx
Xxxxx Bank, N.A.'s Prime Rate less two percent (2.00%) and (B) the sum of the
Federal Funds Rate plus one-half percent (0.50%).
"Bay View Acceptance" means Bay View Acceptance Corporation, a Nevada
corporation.
"Bay View Capital" means Bay View Capital Corporation, a Delaware
corporation.
"Benefit Plan" has the meaning specified in Section 2.07(b).
"Breakage Costs" means the cost, if any, of terminating or adjusting any
Hedge Transaction or Hedge Transactions, as the case may be, incurred in
conjunction with the early repayment of Notes.
"Broken Funding Costs" means with respect to the early repayment of any
Note, any loss (including loss of profit), cost or expense incurred by the
applicable Noteholder (as reasonably determined by the Agent) as a result of
such repayment, such compensation to be an amount equal to the Note Interest
that would have accrued on the amount so repaid from the date of such repayment
to the date of the scheduled repayment, net of any income received by the
Noteholder over such time period from investing the amount of such early
repayment.
4
"Business Day" means any day that is not a Saturday, Sunday or other day
on which commercial banking or federal institutions in New York, New York, San
Francisco, California, Wilmington, Delaware, or in the city in which the
Corporate Trust Office of the Indenture Trustee is located are authorized or
obligated by law or executive order to be closed.
"Calculation Date" means, with respect to a Payment Date or a Repayment
Date, the last Business Day of the calendar month immediately preceding the
month of such Payment Date or Repayment Date.
"Certificate of Title" means, with regard to each Financed Vehicle (i) the
original certificate of title relating thereto, or copies of correspondence and
application made in accordance with applicable law to the appropriate State
title registration agency, and all enclosures thereto, for issuance of its
original certificate of title or (ii) if the appropriate State title
registration agency issues a letter or other form of evidence of lien in lieu of
a certificate of title, the original lien entry letter or form or copies of
correspondence and application made in accordance with applicable law to such
State title registration agency, and all enclosures thereto, for issuance of the
original lien entry letter or form.
"Certificate of Trust" means the certificate of trust of the Issuer
substantially in the form of Exhibit B to the Issuer Trust Agreement.
"Certification" shall have the meaning ascribed thereto in the Custodian
Agreement.
"Change of Control" means any event, transaction or occurrence as a result
of which (a) Bay View Capital ceases to own and control, directly or indirectly
through a wholly-owned subsidiary, all of the economic and voting rights
associated with ownership of more than fifty-one percent (51%) of all classes of
the outstanding capital stock of Bay View Acceptance on a fully diluted basis,
(b) Bay View Acceptance ceases to own and control all of the economic and voting
rights associated with all of the outstanding capital stock of the Depositor or
(c) the Depositor ceases to own and control all of the beneficial interests in
the Issuer.
"Closing Date" means June 20, 2005.
"Code" means the Internal Revenue Code of 1986, as amended, including any
successor or amendatory statutes and U.S. Department of the Treasury regulations
promulgated thereunder.
"Collateral Test Amount" means, as of any Funding Date or Determination
Date the difference between (a) the Receivables Advance Amount and (b) the Note
Principal Balance as of such date.
"Collection Account" means the segregated trust account with that name
established with and in the name of the Indenture Trustee pursuant to Section
5.01 hereof.
"Collection Period" means, with respect to a Payment Date or a Calculation
Date immediately preceding any Payment Date, the period beginning on the first
day of the calendar month immediately preceding such Payment Date and ending on
the last day of such calendar month (each such calendar month and portion
thereof being referred to as the "related"
5
Collection Period with respect to a Payment Date or Calculation Date); provided,
that the initial Collection Period shall begin on the Initial Cutoff Date and
shall end on June 30, 2005.
"Collections" means all payments received with respect to the Receivables
and other items of the Trust Estate, including, without limitation, Scheduled
Obligor Payments, Repurchase Prices and Recoveries. "Collections" shall not
include Supplemental Servicing Fees.
"Commercial Paper" means promissory notes of any Noteholder issued by such
Noteholder in the commercial paper market.
"Commitment Expiry Date" has the meaning ascribed thereto in the Note
Purchase Agreement.
"Contribution Agreement" means the Contribution Agreement, dated as of the
date hereof, between the Contributor and the Depositor relating to the transfer
of Receivables by the Contributor to the Depositor, as amended, modified or
otherwise supplemented from time to time in accordance with the terms thereof.
"Contributor" means Bay View Acceptance and its successors.
"Contributor Financing Statement" means a UCC-1 financing statement naming
the Depositor as the secured party and the Contributor as the debtor.
"Corporate Trust Office" means the office of the Indenture Trustee at
which its corporate trust business shall be administered, which office at the
date of this Indenture shall be 000 Xxxxxx Xx., 0xx Xxxxx, Xxxxxxx, XX 00000,
Attention: Structured Finance - Bay View 2005, or such other address as shall be
designated by the Indenture Trustee in a written notice to the Issuer, the
Servicer, the Owner Trustee, the Noteholders and the Agent.
"CP Rate" shall have the meaning ascribed thereto in the Note Purchase
Agreement.
"Cram Down Loss" means, with respect to any Receivable (other than a
Defaulted Receivable) as to which any court in any bankruptcy, insolvency or
other similar proceeding issues an order reducing the principal amount to be
paid on such Receivable or otherwise modifies any payment terms with respect
thereto, an amount equal to (i) the amount of the principal reduction ordered by
such court or (ii) the difference between the principal balance of such
Receivable at the time of such court order and the net present value (using a
discount rate which is the higher of the APR of such Receivable or the rate of
interest specified by such court order) of the then remaining Scheduled Obligor
Payments as modified or restructured. A Cram Down Loss will be deemed to have
occurred on the date of issuance of such court's order.
"Current Peak Aggregate Receivables Balance" means the highest Aggregate
Receivables Balance that occurred since the most recent Repayment Date
associated with a term securitization, whole loan sale, or combination thereof.
"Current Peak Note Percentage Reserve Amount" means, as of any Funding
Date, an amount equal to the product of (i) Current Peak Aggregate Receivables
Balance times (ii) 1 minus the Note Percentage.
6
"Custodian" means Bay View Acceptance, in its capacity as custodian of the
Custodian Files pursuant to the Custodian Agreement, and its permitted
successors and assigns.
"Custodian Agreement" means that certain Custodian Agreement, dated as of
the date hereof, among the Custodian, the Indenture Trustee and the Issuer as
the same may be amended, modified or otherwise supplemented from time to time in
accordance with the terms thereof.
"Cutoff Date" means, with respect to the Closing Date, the Initial Cutoff
Date, and with respect to a Funding Date, the related Subsequent Cutoff Date.
"Dealer" means an automobile dealer which sold a Financed Vehicle to an
Obligor and through which the respective Receivable was originated by the
Contributor, which Receivable was assigned by such Dealer to the Contributor
pursuant to the related Dealer Agreement and is being assigned by the
Contributor to the Depositor pursuant to the Contribution Agreement, and
assigned to the Issuer by the Depositor pursuant to the Sale and Servicing
Agreement and Granted by the Issuer to the Indenture Trustee hereunder.
"Dealer Agreement" means an agreement between a Dealer and the Contributor
regarding the terms and conditions of the acquisition by the Contributor from
such Dealer of Receivables, which agreement includes (a) certain
representations, warranties and covenants of such Dealer with respect to the
Receivables sold by such Dealer and (b) the agreement of such Dealer to
repurchase any Receivable with respect to which one or more of such
representations and warranties has been breached.
"Default" means any event which results, or which with the giving of
notice or the lapse of time or both would result, in an Event of Default or a
Servicer Event of Default.
"Default Rate" means a per annum rate equal to Base Rate plus four percent
(4.00%).
"Default Ratio" means, with respect to any Collection Period, a fraction,
expressed as a percentage, equal to (i) the product of (a) 12 times (b) the
excess of the aggregate of the Receivable Balances of all Receivables that
become Defaulted Receivables during such Collection Period over Recoveries
collected during such Collection Period, divided by (ii) the Aggregate
Receivable Balance as of the first day of such Collection Period.
"Defaulted Receivable" means any Receivable with respect to which any of
the following shall have occurred: (i) the related Financed Vehicle shall have
been repossessed, (ii) 10% or more of any Scheduled Obligor Payment remains
unpaid for 120 or more days from the date on which it is due and payable, (iii)
the Servicer has determined in good faith in accordance with its Collection
Policy that eventual payment in full of the Receivable is unlikely, or (iv) the
Servicer has "charged off" the Receivable in accordance with its Collection
Policy.
"Deficiency Claim Amount" means, with respect to any Determination Date,
the amount, if any, by which the amount of the Monthly Available Funds (other
than amounts to be transferred to the Collection Account from the Spread Account
pursuant to Section 5.03(a)) is
7
less than the sum of the amounts payable on the related Payment Date pursuant to
priorities First through Sixteenth in Section 5.03(b) hereof.
"Delinquency Ratio" means, with respect to any Collection Period, a
fraction, expressed as a percentage, (a) the numerator of which is equal to the
aggregate of the Receivable Balances of all Receivables (other than a Defaulted
Receivable) as to which 10% or more of any Scheduled Obligor Payment remains
unpaid for thirty (30) days or more from the date on which it is due and payable
at the end of such Collection Period, and (b) the denominator of which is equal
to the Aggregate Receivable Balance as of the end of such Collection Period.
"Delinquent Receivable" means any Receivable (other than a Defaulted
Receivable) as to which 10% or more of any Scheduled Obligor Payment remains
unpaid for sixty (60) days or more from the date on which it is due and payable.
"Delivery" when used with respect to Account Property means:
(1)(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9-102(a)(47) of the UCC,
transfer thereof:
(i) by physical delivery to the Indenture Trustee, indorsed
to, or registered in the name of, the Indenture Trustee or its
nominee or indorsed in blank;
(ii) by the Indenture Trustee continuously maintaining
possession of such instrument; and
(iii) by the Indenture Trustee continuously indicating by
book-entry that such instrument is credited to the related Account;
(b) with respect to a "certificated security" (as defined in Section
8-102(a)(4) of the UCC), transfer thereof:
(i) by physical delivery of such certificated security to the
Indenture Trustee, provided that if the certificated security is in
registered form, it shall be indorsed to, or registered in the name
of, the Indenture Trustee or indorsed in blank;
(ii) by the Indenture Trustee continuously maintaining
possession of such certificated security; and
(iii) by the Indenture Trustee continuously indicating by
book-entry that such certificated security is credited to the
related Account;
(c) with respect to any security issued by the U.S. Treasury, the
Federal Home Loan Mortgage Corporation or the Federal National Mortgage
Association that is a book-entry security held through the Federal Reserve
System pursuant to Federal book entry
8
regulations, the following procedures, all in accordance with applicable
law, including applicable federal regulations and Articles 8 and 9 of the
UCC, transfer thereof:
(i) by (x) book-entry registration of such property to an
appropriate book-entry account maintained with a Federal Reserve
Bank by a securities intermediary which is also a "depositary"
pursuant to applicable federal regulations and issuance by such
securities intermediary of a deposit advice or other written
confirmation of such book-entry registration to the Indenture
Trustee of the purchase by the securities intermediary on behalf of
the Indenture Trustee of such book-entry security; the making by
such securities intermediary of entries in its books and records
identifying such book-entry security held through the Federal
Reserve System pursuant to Federal book-entry regulations as
belonging to the Indenture Trustee and continuously indicating that
such securities intermediary holds such book-entry security solely
as agent for the Indenture Trustee or (y) continuous book-entry
registration of such property to a book-entry account maintained by
the Indenture Trustee with a Federal Reserve Bank; and
(ii) by the Indenture Trustee continuously indicating by
book-entry that property is credited to the related Account;
(d) with respect to any asset in the Accounts that is an
"uncertificated security" (as defined in Section 8-102(a)(18) of the UCC)
and that is not governed by clause (c) above or clause (e) below:
(i) transfer thereof:
(A) by registration to the Indenture Trustee as the
registered owner thereof, on the books and records of the
issuer thereof; or
(B) by another Person (not a securities intermediary)
who either becomes the registered owner of the uncertificated
security on behalf of the Indenture Trustee, or having become
the registered owner, acknowledges that it holds for the
Indenture Trustee; or
(ii) the issuer thereof has agreed that it will comply with
instructions originated by the Indenture Trustee with respect to
such uncertificated security without further consent of the
registered owner thereof; or
(e) in the case of each security in the custody of or maintained on
the books of a clearing corporation (as defined in Section 8-102(a)(5)) or
its nominee, by causing:
(i) the relevant clearing corporation to credit such security
to a securities account of the Indenture Trustee at such clearing
corporation; and
(ii) the Indenture Trustee to continuously indicate by
book-entry that such security is credited to the related Account;
9
(f) with respect to a "security entitlement" (as defined in Section
8-102(a)(17) of the UCC) to be transferred to or for the benefit of the
Indenture Trustee and not governed by clauses (c) or (e) above: if a
securities intermediary (A) indicates by book entry that the underlying
"financial asset" (as defined in Section 8-102(a)(9) of the UCC) has been
credited to be the Indenture Trustee's "securities account" (as defined in
Section 8-501(a) of the UCC), (B) receives a financial asset from the
Indenture Trustee or acquires the underlying financial asset for the
Indenture Trustee, and in either case, accepts it for credit to the
Indenture Trustee's securities account or (C) becomes obligated under
other law, regulation or rule to credit the underlying financial asset to
the Indenture Trustee's securities account, the making by the securities
intermediary of entries on its books and records continuously identifying
such security entitlement as belonging to the Indenture Trustee; and
continuously indicating by book-entry that such securities entitlement is
credited to the Indenture Trustee's securities account; and by the
Indenture Trustee continuously indicating by book-entry that such security
entitlement (or all rights and property of the Indenture Trustee
representing such securities entitlement) is credited to the related
Account; and/or
(2) In the case of any such asset, such additional or alternative
procedures as are now or may hereafter become appropriate to effect the
complete transfer of ownership of, or control over, any such assets in the
Accounts to the Indenture Trustee free and clear of any adverse claims,
consistent with changes in applicable law or regulations or the
interpretation thereof.
In each case of delivery contemplated herein, the Indenture Trustee shall
make appropriate notations on its records, and shall cause the same to be made
on the records of its nominees, indicating that securities are held in trust
pursuant to and as provided in this Indenture.
"Delivery Date" has the meaning specified in Section 2.12(a)(i) hereof.
"Depositor" means Bay View Warehouse Corporation, a Delaware corporation,
and its successors.
"Depositor Financing Statement" means a UCC-1 financing statement naming
the Issuer as the secured party and the Depositor as the debtor.
"Eligible Account" means either (a) a segregated account or accounts
maintained with an Eligible Institution or (b) a segregated trust account or
accounts maintained with the trust department of a federal or State chartered
depository institution acceptable to the Agent, having capital and surplus of
not less than $100,000,000, acting in its fiduciary capacity.
"Eligible Institution" means an institution whose deposits are insured by
the Federal Deposit Insurance Corporation, the unsecured and uncollateralized
long-term debt obligations of which institution shall be rated "A+" or higher by
S&P and "Aa2" or higher by Xxxxx'x and the short-term debt obligations of which
have the highest short term rating by each of the Rating Agencies, and which is
(i) a federal savings and loan association duly organized, validly existing and
in good standing under the federal banking laws, (ii) an institution duly
organized, validly existing and in good standing under the applicable banking
laws of any State, (iii) a national
10
banking association duly organized, validly existing and in good standing under
the federal banking laws or (iv) a subsidiary of a bank holding company.
"Eligible Hedge Counterparty" means a Hedge Counterparty which (a) has a
long-term unsecured debt rating of not less than "AA-" by S&P or "Aa3" by
Xxxxx'x ("Long-term Rating Requirement"), (b) has a short-term unsecured debt
rating of not less than "A-1+" by S&P or "P1" by Xxxxx'x (the "Short-term Rating
Requirement") and (c) in a Hedge Agreement (i) consents to the assignment of the
Issuer's rights under the Hedge Agreement to the Indenture Trustee for the
ratable benefit of the Noteholders and (ii) agrees that in the event that S&P or
Xxxxx'x reduces its long-term unsecured debt rating below the Long-term Rating
Requirement or its short-term unsecured debt rating below the Short-term Rating
Requirement, it shall (x) transfer its rights and obligations under each Hedge
Transaction to another entity that meets the requirements of clauses (a), (b)
and (c) hereof and has entered into a Hedge Agreement with the Issuer on or
prior to the date of such transfer or (y) put in place appropriate
mark-to-market collateral arrangements which will be based on the 1994 ISDA
Credit Support Annex (New York law version) and which will relate to collateral
in the form of USD cash or securities or both in support of its obligations
under the applicable Hedge Agreement that will result in the total negation of
the effect of such ratings downgrade.
"Eligible Investments" means any one or more of the following obligations
or securities:
(a) (i) direct interest-bearing obligations of, and interest-bearing
obligations guaranteed as to payment of principal and interest by, the
United States or any agency or instrumentality of the United States the
obligations of which are backed by the full faith and credit of the United
States; and (ii) direct interest-bearing obligations of, and
interest-bearing obligations guaranteed as to payment of principal and
interest by, the Federal National Mortgage Association or the Federal Home
Loan Mortgage Corporation, but only if, at the time of investment, such
obligations are assigned the highest credit rating by each Rating Agency;
(b) demand and time deposits in, certificates of deposit of, or
bankers acceptances issued by, any depository institution or trust company
(including the Indenture Trustee or any Affiliate of the Indenture
Trustee, acting in their respective commercial capacities) incorporated
under the laws of the United States of America or any State thereof and
subject to supervision and examination by federal or State banking
authorities, the commercial paper or other short-term debt obligations of
such depository institution or trust company (or, in the case of a
depository institution which is the principal subsidiary of a holding
company, the commercial paper or other short-term debt obligations of such
holding company) having a rating of no less than "A-1" by Standard &
Poor's and "P-1" by Xxxxx'x;
(c) securities bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States of America or
any State thereof which have a rating of no less than "A-1+" by Standard &
Poor's and "P-1" by Xxxxx'x;
(d) commercial paper (including both non-interest bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not
11
more than one year after the closing date thereof) having the highest
commercial paper rating from Standard & Poor's and Xxxxx'x;
(e) money market mutual funds registered under the 1940 Act which
invest only in other Eligible Investments, having a rating, at the time of
such investment, of no less than "Aaa" by Moody's and "AAAm" by Standard &
Poor's.
The Indenture Trustee may purchase from or sell to itself or an Affiliate, as
principal or agent, the Eligible Investments listed above. All Eligible
Investments in an Account shall be made in the name of the Indenture Trustee for
the benefit of the Noteholders.
"Eligible Receivable" means a Receivable meeting all of the requirements
specified in Section 3.02(a) of the Contribution Agreement and Section 3.02(a)
of the Sale and Servicing Agreement.
"ERISA" has the meaning specified in Section 2.07(b) hereof.
"Event of Default" has the meaning specified in Section 8.01 hereof.
"Excess Spread" means, with respect to any Determination Date, the
weighted average APR of the Receivables as of the last day of the prior
Collection Period less the sum of (a) the weighted average of the Note Interest
Rates for all Outstanding Notes for such Collection Period, (b) the Program Fee
Rate, (c) the Servicing Fee Rate, (d) the Default Ratio for the related
Collection Period and (e) the rate at which the Indenture Trustee Fee is
calculated.
"Excess Spread Trigger Event" means with respect to any Determination
Date, the Three Month Average Excess Spread with respect to such Determination
Date is less than 2.0% per annum.
"Excess Spread Trigger Period" means a period commencing upon the
occurrence of an Excess Spread Trigger Event and continuing until the first
Determination Date thereafter on which the Three Month Average Excess Spread on
such Determination Date and on each of the two preceding Determination Dates
exceeds 2.00% per annum.
"Excess Spread Trigger Period Percentage" means as of any Determination
Date during an Excess Spread Trigger Period, the product of (a) the greatest
amount by which 2.00% per annum exceeded the Three Month Average Excess Spread
(rounded to the nearest hundredth of one percent) on such Determination Date or
any preceding Determination Date during such Excess Spread Trigger Period and
(b) 1.5.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Falcon Lender Group" means Falcon Asset Securitization Corporation and
JPMorgan Chase Bank, N.A.
"Fairway Lender Group" means Fairway Finance Company, LLC and Bank of
Montreal.
12
"Federal Funds Rate" means for any period, a fluctuating interest rate per
annum for each day during such period equal to (a) the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the preceding Business Day) by the
Federal Reserve Bank of New York in the Composite Closing Quotations for U.S.
Government Securities; or (b) if such rate is not so published for any day which
is a Business Day, the average of the quotations at approximately 10:30 a.m.
(Chicago time) for such day on such transactions received by the Agent from
three federal funds brokers of recognized standing selected by it.
"Fee Letter" means a collective reference to that certain Fee Letter,
dated as of the Closing Date, from the Agent and acknowledged and agreed to by
the Issuer, as the same may be amended, modified or supplemented from time to
time in accordance with the terms thereof.
"Financed Vehicle" means a new or used automobile, van, light-duty truck,
sport utility vehicle or recreational vehicle, together with all accessions
thereto, securing an Obligor's indebtedness under the respective Receivable.
"Financial Institutions" means the liquidity banks party to the Liquidity
Agreement as "Assignees".
"Financing Statements" means, collectively, the Contributor Financing
Statement, the Depositor Financing Statement and the Issuer Financing Statement.
"Funding Certificate" means an Officer's Certificate relating to a
Subsequent Transfer substantially in the form of Exhibit A hereto.
"Funding Date" means each Business Day on which Subsequent Receivables are
assigned by the Contributor to the Depositor and by the Depositor to the Issuer
or each Business Day on which requests to fund the Pre-Funding Account are
honored; provided, that there may be no more than two (2) Funding Dates in any
calendar week. For the avoidance of doubt, the Funding Date with respect to any
Receivables that are Pre-Funded Receivables will not occur until the Formal
Transfer Requirements are satisfied, as indicated on the Weekly Servicer Report.
"Funding Documents" has the meaning specified in Section 3.14(f) hereof.
"Funding Period" means the period from the Closing Date until the earliest
to occur of (i) 30 days' written notice by the Issuer to the Servicer, the Agent
and the Indenture Trustee that such Person is directing the end of the Funding
Period, (ii) the day on which a Default, an Event of Default or a Termination
Event occurs, and (iii) the Commitment Expiry Date under the Note Purchase
Agreement.
"Grant" means to pledge, create and grant a security interest in and with
regard to property. A Grant of a Receivable or of any other instrument shall
include all rights, powers and options (but none of the obligations) of the
granting party thereunder, including without limitation the immediate and
continuing right to claim for, collect, receive and give receipts for
13
principal and interest payments in respect of such 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 which the granting party is or may be entitled to do
or receive thereunder or with respect thereto.
"Hedge Agreement" means any financial futures contract, option, forward
contract, warrant, swap, swaption, collar, floor, cap or other agreement,
instrument and derivative and other transactions of a similar nature (whether
currency linked, rate linked, index linked, insurance risk linked, credit risk
linked or otherwise) entered into by the Issuer and approved in writing by the
Agent.
"Hedge Counterparty" means any entity that is an interest rate swap dealer
that is either a Noteholder or an Affiliate of a Noteholder, or has been
approved in writing by the Noteholders and the Required Financial Institutions.
"Hedge Transaction" means each financial futures contract, option, forward
contract, warrant, swap, swaption, collar, floor, cap or other transaction
between the Issuer and a Hedge Counterparty that is governed by a Hedge
Agreement.
"Holder" means a Noteholder.
"Increased Costs" has the meaning specified in Section 3.14(f) hereof.
"Incremental Trigger Amount" means, with respect to any Determination
Date, that portion, if any, of the Requisite Amount due solely to (a) in the
case of the first Determination Date in an Excess Spread Trigger Period, the
existence of an Excess Spread Trigger Period Percentage, or (b) with respect to
any other Determination Date, an increase in the Excess Spread Trigger Period
Percentage since the previous Determination Date.
"Indenture" or "this Indenture" means this Indenture dated as of the date
hereof, as supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof. All references in
this Indenture to designated "Articles," "Sections," "Subsections" and other
subdivisions are to the designated Articles, Sections, Subsections and other
subdivisions of this Indenture. The words "herein," "hereof," "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section, Subsection or other subdivision.
"Indenture Trustee" means JPMorgan Chase Bank, N.A., until a successor
Person shall have become the Indenture Trustee pursuant to the applicable
provisions of this Indenture, and thereafter "Indenture Trustee" means such
successor Person.
"Indenture Trustee Fee" means the fee payable to the Indenture Trustee for
services rendered, determined pursuant to the Indenture Trustee Fee Agreement.
"Indenture Trustee Fee Agreement" means fee agreement dated as of the date
hereof between the Indenture Trustee and Bay View Acceptance setting forth the
fees payable to the Indenture Trustee.
14
"Independent Directors" has the meaning set forth in the certificate of
incorporation of the Depositor.
"Independent Public Accountants" means any of (a) Xxxxx Xxxxxxxx LLP, (b)
Deloitte & Touche, (c) PricewaterhouseCoopers, LLP, (d) Ernst & Young LLP, (e)
KPMG Peat Marwick LLP, (f) any successor to any of the foregoing or (g) any
other firm approved by the Majority Holders; provided, that such firm is
independent with respect to the Servicer within the meaning of the Securities
Act.
"Interest Rate Hedge Cap Strike Price" means with respect to a Hedge
Agreement which is an interest rate cap agreement, the strike price set forth in
such Hedge Agreement.
"Initial Cutoff Date" means the close of business on June 20, 2005.
"Initial Funding Date" means June 20, 2005.
"Initial Purchasers" means each of Falcon Asset Securitization Corporation
("Falcon") and Fairway Finance Company, LLC ("Fairway"), and their successors
and assigns.
"Initial Receivables" means the Receivables acquired by the Issuer and
granted to the Indenture Trustee on the Closing Date.
"Insurance Proceeds" means, with respect to a Financed Vehicle and the
related Receivable, any amount received during the related Collection Period
pursuant to any risk default policy, physical damage policy, gap policy or any
insurance maintained by the Obligor pursuant to the related Receivable, all of
which amounts shall be deposited to the Collection Account.
"Interest Rate Period" means the period determined in accordance with
Section 2.04(b) of the Note Purchase Agreement.
"Issuer" means Bay View 2005 Warehouse Trust, a Delaware statutory trust,
and its successors and assigns.
"Issuer Financing Statement" means a UCC-1 financing statement naming the
Indenture Trustee as the secured party and the Issuer as the debtor.
"Issuer Order" means a written order or request signed in the name of the
Issuer by an Authorized Officer and delivered to the Indenture Trustee.
"Issuer Secured Obligations" means all amounts and obligations which the
Issuer may at any time owe to or on behalf of the Indenture Trustee for the
benefit of the Noteholders and the Agent under this Indenture or the Notes.
"Issuer Trust Agreement" means the Amended and Restated Trust Agreement of
the Issuer dated as of the date hereof between the Depositor and the Owner
Trustee, as the same may be amended, modified or supplemented from time to time
in accordance with the terms thereof.
15
"JPMorgan Chase Bank, N.A." means JPMorgan Chase Bank, N.A., a national
banking association, not in its individual capacity, and its successors.
"Lender Group" means the Falcon Lender Group or the Fairway Lender Group.
"Lender Group Agent" means, with respect to the Lender Group, JPMorgan
Chase Bank, N.A., not in its individual capacity but as agent for the Fairway
Lender Group, and with respect to the Falcon Lender Group, Xxxxxx Xxxxxxx Corp.,
as administrator for Fairway Finance Company, LLC, not individually but as agent
for the Falcon Lending Group.
"LIBOR" means, with respect to any Interest Rate Period, the London
interbank offered rate for United States dollar deposits determined by the
Indenture Trustee pursuant to Section 2.03(d).
"LIBOR Determination Date" means, for any Note for which the Note Interest
Rate is LIBOR, the second Business Day prior to the commencement of each
Interest Rate Period.
"Lien" means any security interest, lien, charge, pledge, preference,
equity or encumbrance of any kind including tax and mechanics' liens and any
other liens that attach by operation of law.
"Liquidity Agreement" has the meaning ascribed thereto in the Note
Purchase Agreement.
"Liquidity Commitment" means, for each Financial Institution, the
commitment of such Financial Institution to purchase an interest in the Notes.
"Liquidity Funding Rate" means the greater of (A) the sum of (i) the
Adjusted LIBOR Rate and (ii) the Applicable Margin and (B) the Base Rate.
"Local Bank" means a financial institution acceptable to the Agent holding
one or more collection accounts into which the Servicer deposits Collections
from Obligors. The parties agree that Union Bank of California shall be an
acceptable Local Bank.
"Local Bank Account" has the meaning set forth in the Sale and Servicing
Agreement.
"Long-term Rating Requirement" has the meaning specified in the definition
of Eligible Hedge Counterparty.
"Majority Holders" means the Initial Purchasers (Falcon and Fairway must
both consent), and other Noteholders, collectively, holding in the aggregate
more than fifty percent (50%) of the Note Principal Balance.
"Maturity Date" means the Payment Date occurring in the 97th month
following the final Funding Date.
"Maximum Outstanding Note Amount" means $450,000,000
16
"Monthly Available Funds" means, with respect to the immediately preceding
Collection Period, (a) Collections, (b) earnings on Eligible Investments on
deposit in the Collection Account and the Spread Account, (c) payments remitted
to the Issuer or the Servicer by the Hedge Counterparty under any Hedge
Agreement, (d) Servicer Advances, (e) amounts transferred to the Collection
Account from the Spread Account pursuant to Section 5.03(a) and (f) payments
remitted to the Indenture Trustee by the Depositor to prevent the occurrence of
certain Termination Events.
"Moody's" means Xxxxx'x Investors Service, Inc. or its successor.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Nonconforming Receivable" means a Receivable with respect to which it is
determined by the Indenture Trustee (acting at the direction of the Agent) or
the Servicer, at any time, that the Contributor, the Depositor or the Issuer
breached one or more of the applicable representations or warranties regarding
eligibility of such Receivable contained in the Contribution Agreement or the
Sale and Servicing Agreement, respectively, at the time of (i) the assignment by
the Contributor to the Depositor under the Contribution Agreement or (ii) the
assignment by the Depositor to the Issuer pursuant to the Sale and Servicing
Agreement or (iii) the Grant by the Issuer to the Indenture Trustee under this
Indenture.
"Note" or "Notes" means each Automobile Receivables-Backed Note, Series
2005-1, issued in accordance with the provisions of this Indenture.
"Note Interest" means, with respect to any Note,
(a) with respect to the initial Payment Date following the Initial
Funding Date, the product of (x) 1/360 of the Note Interest Rate
applicable to such Note in effect from time to time times (y) the actual
number of days from and including the Initial Funding Date through the day
immediately preceding such Payment Date times (z) the average daily
outstanding Note Principal Balance of such Note for the period from and
including the Initial Funding Date through the date immediately preceding
such Payment Date, and
(b) with respect to any subsequent Payment Date, the sum of (i) the
product of (x) 1/360 of the Note Interest Rate applicable to such Note in
effect from time to time times (y) the actual number of days from and
including the previous Payment Date through the day immediately preceding
such subsequent Payment Date times (z) the average daily outstanding Note
Principal Balance of such Note for the period from and including the
immediately preceding Payment Date (after giving effect to all payments of
principal of the Notes on such immediately preceding Payment Date) through
the date immediately preceding such subsequent Payment Date plus (ii) the
Overdue Interest on such Note, if any.
"Note Interest Rate": means, with respect to any Note:
(a) to the extent the Noteholder thereof funded or maintained its
interest in the applicable Notes through the issuance of Commercial Paper,
a rate equal to the CP Rate,
17
(b) to the extent the Noteholder thereof funded or maintained its
interest in the applicable Notes through a funding under a Liquidity
Agreement, a rate equal to the Liquidity Funding Rate, as determined in
accordance with Section 2.04 of the Note Purchase Agreement, or
(c) otherwise, a per annum rate equal to the Bank Rate;
provided, however, that in the event of Default, the Default Rate
shall apply.
"Note Percentage" means 97%.
"Note Principal Balance" means, with respect to a specific Note or class
of Notes, as of any date of determination, the original principal balance of
such Note(s), as increased by any Additional Note Principal Balances previously
allocated to such Note(s) pursuant to Section 2.13(a), and as reduced by all
amounts previously paid on such Note(s) in reduction of the principal balance of
such Note(s) which have not been returned to the Issuer or to any other Person
for any reason. Unless specified to refer to a specific Note or class of Notes,
"Note Principal Balance" as used herein and in the Transaction Documents shall
mean the aggregate of the Note Principal Balances of all Notes Outstanding.
"Note Purchase Agreement" means that certain Note Purchase Agreement dated
as of June 20, 2005, among the Issuer, the Contributor, the Initial Purchasers
and Financial Institutions (as defined therein) party thereto and XX Xxxxxx
Xxxxx Bank, N.A., as agent for the Initial Purchasers and Financial
Institutions, as amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Note Register" and "Note Registrar" have the meanings specified in
Section 2.06.
"Noteholder" means the Person in whose name a Note is registered in the
Note Register.
"Notice of Funding" means a notice in the form of Exhibit C hereto.
"Obligor" means, with respect to a Receivable, the purchaser or
co-purchasers of the associated Financed Vehicle and any other Person who owes
payments under such Receivable whether as maker, co-maker, guarantor or
otherwise.
"Officer's Certificate" means a certificate signed by an Authorized
Officer.
"Opinion of Counsel" means a written opinion of counsel who may, except as
otherwise expressly provided in this Indenture, be outside counsel for the
Issuer or the Indenture Trustee and who shall be reasonably satisfactory to the
Indenture Trustee and the Agent, which shall comply with any applicable
requirements of Section 10.02 and which shall be in form and substance
satisfactory to the Indenture Trustee and the Agent.
"Outstanding" means with respect to all Notes as of any date of
determination, all such Notes theretofore authenticated and delivered under this
Indenture except:
18
(a) Notes theretofore canceled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(b) Notes or portions thereof for whose payment money in the
necessary amount in repayment thereof has been theretofore deposited with
the Indenture Trustee in trust for the Holders of such Notes and for which
there is no further commitment by the Noteholder to make additional
advances under the Note Purchase Agreement;
(c) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture; and
(d) Notes alleged to have been destroyed, lost or stolen for which
replacement Notes have been issued as provided for in Section 2.08 unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a protected purchaser (as such term is used in Article 8
of the UCC);
provided, however, that in determining whether the Noteholders of the requisite
percentage of the principal balance of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Contributor, the Depositor, the Issuer or any Affiliate thereof 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 which the Indenture Trustee actually knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee, in its sole discretion, the pledgee's right so to act with
respect to such Notes and that the pledgee is not the Contributor, the
Depositor, the Issuer or any Affiliate thereof.
"Overdue Interest" means, with respect to any Payment Date and any Note,
the difference, if any, between (a) the amount of Note Interest due on the prior
Payment Date with respect to such Note and (b) the amount of Note Interest (from
whatever source) actually paid to the Noteholder thereof on the prior Payment
Date, plus (to the extent permitted by law) interest on any such shortfall on
the prior Payment Date at the Note Interest Rate from and including the prior
Payment Date through the day immediately preceding the Payment Date of such
calculation.
"Ownership Interest" means, with respect to any Note, any ownership
interest in such Note, including any interest in such Note as the Noteholder
thereof and any other interest therein, whether direct or indirect, legal or
beneficial.
"Owner Trustee" means Wilmington Trust Company, not in its individual
capacity, but solely as Owner Trustee of the Issuer, until a successor Person
shall have become the Owner Trustee pursuant to the applicable provisions of the
Issuer Trust Agreement, and thereafter "Owner Trustee" means such successor
Person.
"Paying Agent" means the Indenture Trustee and any other party appointed
as paying agent pursuant to Section 3.03 hereof.
19
"Payment Date" means the 20th day of each month during which any of the
Notes remain Outstanding, beginning in July, 2005 (provided, if any such date is
not a Business Day, then the Payment Date shall be the next succeeding Business
Day).
"Perfection UCCs" means, with respect to each Receivable and the property
related thereto, (a) the date-stamped original of the filed Contributor
Financing Statement covering such Receivable and the related Contributed Assets
and (b) the date-stamped original of the filed Depositor Financing Statement
covering such Receivable and the related Deposited Assets and (c) the
date-stamped original of the filed Issuer Financing Statement covering the Trust
Estate and (d) the date-stamped original of the filed Termination Statements
releasing the liens held by creditors of the Contributor and any other Person
(other than as expressly contemplated by the Transaction Documents) covering
such Receivable and the related Contributed Assets, or, in the case of (d)
above, a copy of search results performed and certified by a national search
company indicating that such Termination Statements have been filed in the UCC
filing offices of the States in which the Financing Statements being terminated
were originally filed.
"Permitted Lien" means any tax, mechanics' or other similar Lien arising
from the failure of an Obligor to make a payment with respect to the Financed
Vehicle related to such Obligor's Receivable.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, limited liability partnership, joint
stock company, trust (including any beneficiary thereof), unincorporated
organization or government or any agency or political subdivision thereof.
"Pool" means a pool of Eligible Receivables funded or to be funded on a
Funding Date.
"Predecessor Notes" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.08 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed or
stolen Note.
"Pre-Funding Account" means the segregated trust account with that name
established with and in the name of the Indenture Trustee pursuant to Section
5.01 hereof.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by (a) JPMorgan Chase Bank, N.A. or its parent, with
respect to any Note held by the Initial Purchasers , JPMorgan Chase Bank, N.A.,
Bank of Montreal or any assignee of any, or (b) Bank of Montreal or its parent,
with respect to any Note held by Bank of Montreal or any assignee thereof, as
applicable (which is not necessarily the lowest rate charged to any customer by
either JPMorgan Chase Bank, N.A. or Bank of Montreal, as applicable), changing
when and as such prime rate changes.
"Principal Payment Amount" means, with respect to the Notes and any
Payment Date until the principal balance of the Notes is reduced to zero, an
amount equal to the positive difference, if any, of (a) the Note Principal
Balance of the Notes Outstanding as of such day before giving effect to any
payments thereon minus (b) the Receivables Advance Amount.
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"Principal Reduction Amount" means, with respect to any Payment Date, the
sum, without duplication, of: (a) the principal portion of all Scheduled Obligor
Payments collected during the related Collection Period with respect to each
Receivable, (b) the principal portion of all prepayments received during the
related Collection Period, (c) the Receivable Balance of each Receivable that
became a Repurchased Receivable under an obligation that arose during the
related Collection Period, (d) to the extent not included in the foregoing, the
amount of any Cram Down Losses which occurred during the related Collection
Period and (e) the Receivable Balance of all Receivables that became Defaulted
Receivables during the related Collection Period.
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
"Program Fee" means the Program Fee as defined and set forth in the Fee
Letter.
"Program Fee Rate" means the Program Fee Rate as defined and set forth in
the Fee Letter.
"Rating Agency" means each of Xxxxx'x and Standard & Poor's.
"Receivable" means the obligation of an Obligor, as evidenced by a retail
installment contract and security agreement substantially in the form of Exhibit
B to the Contribution Agreement, or such other forms as may be added by
amendment or supplement to the Contribution Agreement and approved by the Agent,
which obligation is (i) transferred from the Contributor to the Depositor
pursuant to the Contribution Agreement, (ii) transferred from the Depositor to
the Issuer pursuant to the Sale and Servicing Agreement and (iii) pledged to the
Indenture Trustee pursuant to the Indenture.
"Receivable Balance" or "Receivables Balance" means for any Receivable as
of any date of determination, the Amount Financed minus the sum, without
duplication, of (i) the Principal Reduction Amount with respect to such
Receivable on or prior to such day and (ii) any refunded portion of service
warranties and service contracts, or of State tax refunds or of physical damage,
credit life or disability or gap insurance premiums included in the Amount
Financed to the extent actually deposited to the Collection Account; provided
that the Receivable Balance of any Receivable that has become a Repurchased
Receivable, or has become subject to repurchase pursuant to Section 3.03 of the
Sale and Servicing Agreement, shall be zero.
"Receivables Advance Amount" means, as of any Funding Date, an amount
equal to the sum of (a) the difference between (i) the aggregate Receivables
Balance of all Eligible Receivables (excluding Pre-Funded Receivables) after
taking into account the pledge of Subsequent Receivables on such Funding Date
and (ii) the Current Peak Note Percentage Reserve Amount plus (b) the Pre-Funded
Collateral.
"Record Date" means, with respect to a Payment Date or a Repayment Date,
the last day of the calendar month immediately preceding the month of such
Payment Date or Repayment Date.
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"Recoveries" means those funds collected on a Defaulted Receivable from
the Obligor or otherwise, including Insurance Proceeds and all State tax
refunds, but excluding the Repurchase Price actually deposited in the Collection
Account.
"Repayment Date" has the meaning set forth in Section 6.01(a).
"Repurchase Price" means the Receivable Balance of a Receivable (without
giving effect to any previous reduction in the Receivable Balance as a result of
such Receivable becoming a Defaulted Receivable) on the date of repurchase plus
accrued and unpaid interest, if any, to the last day of the month of repurchase,
calculated at the APR provided for in the retail installment contract evidencing
such Receivable.
"Repurchased Receivable" means a Receivable released from the Lien hereof
pursuant to Section 6.04 hereof and, if applicable, transferred to the Depositor
pursuant to the Sale and Servicing Agreement and to the Contributor pursuant to
the Contribution Agreement.
"Required Financial Institutions" means, at any time, Financial
Institutions with Liquidity Commitments in excess of 50% of the aggregate
Liquidity Commitments at such time.
"Requisite Amount" means:
(a) at any time during an Excess Spread Trigger Period, an amount
equal to the lesser of (i) the Note Principal Balance at such time and
(ii) the greater of (A) $1,000,000 and (B) the Current Peak Aggregate
Receivables Balance at such time times the lesser of (x) 2.0% and (y)
1.25% plus the Excess Spread Trigger Period Percentage determined as of
the most recent Determination Date; and
(b) at any other time, an amount equal to the lesser of (i) the Note
Principal Balance at such time and (ii) the greater of (A) $1,000,000 and
(B) the Current Peak Aggregate Receivables Balance at such time times
1.25%.
"Responsible Officer" means when used with respect to the Indenture
Trustee, any officer of the Indenture Trustee assigned by the Indenture Trustee
to administer its corporate trust affairs relating to the Issuer. When used with
respect to any other Person that is not an individual, the President, any
Vice-President or Assistant Vice-President or the Controller of such Person, or
any other officer or employee having similar functions.
"Sale and Servicing Agreement" means that certain Sale and Servicing
Agreement dated as of the date hereof among the Issuer, the Depositor, the
Indenture Trustee, the Backup Servicer, the Contributor and the Servicer,
relating to the servicing of the Receivables, as the same may be amended,
modified or otherwise supplemented from time to time in accordance with the
terms thereof.
"Schedule of Receivables" means, as the context may require, (i) the
schedule of Initial Receivables or Subsequent Receivables, as the case may be,
assigned to the Depositor by the Contributor, assigned by the Depositor to the
Issuer and Granted to the Indenture Trustee by the Issuer on the Closing Date or
a Funding Date, as applicable, which schedule is attached hereto as Schedule I
with respect to the Initial Receivables and to a Contributor Assignment and a
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Depositor Assignment for any Subsequent Receivables, as such schedule may be
amended from time to time (in accordance with the terms of the Transaction
Documents), or (ii) collectively, the schedules of all Receivables assigned to
the Depositor by the Contributor, assigned by the Depositor to the Issuer and
Granted to the Indenture Trustee by the Issuer as of the date of determination,
as such schedules may be amended from time to time (in accordance with the terms
of the Transaction Documents).
"Scheduled Obligor Payment" means, with respect to a Receivable, the fixed
payment required to be made by the applicable Obligor during each Collection
Period; provided, however, that "Scheduled Obligor Payment" does not include
late fees or prepayment charges allowed by applicable law.
"Securities Act" means the Securities Act of 1933, as amended.
"Servicer" means Bay View Acceptance as the servicer of the Receivables or
any other Eligible Servicer acting as servicer pursuant to the Sale and
Servicing Agreement. Unless the context otherwise requires, "Servicer" also
refers to any successor Servicer appointed pursuant to the Sale and Servicing
Agreement.
"Servicer Advances" has the meaning specified in Section 7.01(g) of the
Sale and Servicing Agreement.
"Servicer Event of Default" has the meaning specified in Section 10.01 of
the Sale and Servicing Agreement.
"Servicing Fee Rate" has the meaning specified in the Sale and Servicing
Agreement.
"Short-term Rating Requirement" has the meaning specified in the
definition of Eligible Hedge Counterparty.
"Spread Account" means the segregated trust account by that name
established with and in the name of the Indenture Trustee pursuant to Section
5.01 hereof.
"Spread Account Deficiency" means, with respect to any applicable date,
that the balance on deposit in immediately available funds in the Spread Account
is less than the Requisite Amount for such date.
"Standard &Poor's" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., or its successor.
"State" means any one or more of the states comprising the United States
and the District of Columbia.
"Subsequent Cutoff Date" means, with respect to any Funding Date, the
close of business two (2) Business Days prior to such Funding Date.
"Subsequent Receivable" means a Receivable acquired by the Issuer on any
given Funding Date.
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"Subsequent Transfer" means the transfer of Subsequent Receivables from
the Contributor to the Depositor and the simultaneous assignment by the
Depositor to the Issuer on a Funding Date.
"Supermajority Holders" means the Initial Purchasers (Falcon and Fairway
must both consent), and other Noteholders, collectively, holding in the
aggregate more than sixty-six and two-third percent (66 2/3%) of the Note
Principal Balance.
"Supplemental Servicing Fees" means any and all (i) late fees, (ii)
extension fees, (iii) non-sufficient funds charges and (iv) any and all other
administrative fees or similar charges allowed by applicable law with respect to
any Receivable.
"Tangible Net Worth" means, with respect to Bay View Acceptance and its
subsidiaries on a consolidated basis, the sum of total shareholders' equity (as
calculated in accordance with generally accepted accounting principles) plus
loan loss reserves.
"Termination Date" means the date on which the Indenture Trustee shall
have received payment and performance of all Issuer Secured Obligations.
"Termination Event" means the occurrence of any one or more of the
following events:
(a) (i) any Event of Default hereunder or (ii) any "Event of
Default" under and as defined in any sale and servicing agreement, pooling
and servicing agreement, indenture or any similar agreement (including,
without limitation, each of the Transaction Documents) with respect to any
revolving or term asset-backed transaction to which Bay View Acceptance or
any Affiliate of Bay View Acceptance is a party, unless such "Event of
Default" has been permanently cured or permanently waived with respect to
the particular circumstances leading to such "Event of Default", in each
case, on terms that do not materially change the terms of the agreement
under which such "Event of Default" arose;
(b) with respect to any Determination Date, the Excess Spread with
respect to such Determination Date is less than 1.5% per annum;
(c) the Average Delinquency Ratio equals or exceeds 1.35% on a
Determination Date;
(d) the Average Default Ratio equals or exceeds 1.60% on a
Determination Date;
(e) a Spread Account Deficiency exists; provided, that (i) if such
Spread Account Deficiency exists solely as a result of the existence of an
Incremental Trigger Amount, a Termination Event under this subparagraph
(e) shall not occur with respect thereto unless there is a Spread Account
Deficiency (other than one resulting from the existence of a new
Incremental Trigger Amount) on the second Payment Date following the
Determination Date on which such Incremental Trigger Amount arose, and
(ii) if a transfer from the Spread Account to the Collection Account has
been made on a Transfer Date pursuant to Section 5.03(a), a Termination
Event under this subparagraph (e) cannot
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occur unless and until a Spread Account Deficiency exists on or after the
second Payment Date following such Transfer Date;
(f) Tangible Net Worth is at any time less than $35,000,000;
(g) the failure of Bay View Acceptance to have paid-in capital of
$50 million or greater;
(h) the failure of Bay View Acceptance to maintain monthly "Minimum
Liquidity" (available cash and borrowing capacity for working capital
purposes) of $5 million or greater;
(i) any of the Issuer, the Servicer, the Contributor, the Custodian
or the Depositor shall have (i) filed a petition or commenced any case or
proceeding under any provision or chapter of the United States Bankruptcy
Code or any other similar federal or State law relating to insolvency,
bankruptcy, rehabilitation, liquidation or reorganization, (ii) made a
general assignment for the benefit of its creditors, or (iii) had an order
for relief entered against it under the United States Bankruptcy Code or
any other similar federal or State law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization which is final and
nonappealable; or (c) a court of competent jurisdiction, or other
competent regulatory authority shall have entered an order, judgment or
decree (i) appointing a custodian, trustee, agent or receiver for the
Issuer, the Servicer, the Contributor, the Custodian or the Depositor or
for all or any material portion of any of their property or (ii)
authorizing the taking of possession by a custodian, trustee, agent or
receiver of the Issuer, the Servicer, the Contributor, the Custodian or
the Depositor (or the taking of possession of all or any material portion
of the property of the Issuer, the Servicer, the Contributor, the
Custodian or the Depositor);
(j) any of the Issuer, the Servicer, the Contributor, the Custodian
or the Depositor becomes an "investment company" within the meaning of the
Investment Company Act or 1940, as amended;
(k) any of the Issuer, the Servicer, the Contributor or any
Affiliate of the Contributor, the Custodian or the Depositor, with respect
to any outstanding credit agreement (other than with respect to the
facility contemplated by the Transaction Documents) representing a
commitment or outstanding indebtedness in excess of $1,000,000 defaults in
any payment of principal or interest or defaults in any other respect, the
effect of which is to cause or permit the holders of indebtedness pursuant
to any such agreement to cause the acceleration of such indebtedness (in
each case, after giving effect to all applicable cure periods in any such
credit agreement);
(l) the filing of any actions or proceedings against Bay View
Acceptance (or any subsidiary of Bay View Acceptance) that (a) are not
dismissed within 90 days; and (b) either (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the
aggregate, to have a material adverse effect on the business, operations
or financial condition of the Depositor, the Servicer, the Custodian or
the Issuer, or (ii) involves any
25
of the Transaction Documents and the transaction contemplated thereby, or
(iii) involves any material portion of the Receivables;
(m) any final rulings or judgments against Bay View Acceptance (or
any subsidiary of Bay View Acceptance) for damages in excess of $5,000,000
in the aggregate (which is not fully covered by insurance) that is not
discharged or stayed within 30 days or any final rulings or judgments
against or settlements by the Issuer for any damages whatsoever;
(n) the occurrence of a Servicer Event of Default;
(o) the Indenture Trustee shall, for any reason, fail to have a
valid and perfected first priority security interest in (i) the
Receivables (the aggregate outstanding balance of which is in excess of
$100,000) and (ii) except to the extent of Permitted Liens, other items
included in the Trust Estate and the proceeds thereof;
(p) the Issuer or the Depositor shall merge or consolidate in whole
or in part, or sell all or substantially all of its assets, except (i) as
permitted in the Transaction Documents, or (ii) with the prior written
consent of the Majority Holders;
(q) if the Collateral Test Amount is less than zero (0) on any
Funding Date or Determination Date, the failure of the Depositor to
deposit cash into the Collection Account or to transfer additional
Receivables to the Issuer (which are then Granted to the Indenture
Trustee) within ten (10) Business Days such that the Collateral Test
Amount is not less than zero (0);
(r) any Hedge Counterparty ceases to be an Eligible Hedge
Counterparty and has not been replaced with an Eligible Hedge Counterparty
within ten (10) Business Days;
(s) the absence of a Hedge Transaction, when applicable;
(t) the Commitment Expiry Date has not been extended;
(u) any failure by Bay View Acceptance Corporation to pay any
material indebtedness in excess of Five Million Dollars ($5,000,000) when
due or the occurrence of any other event of default under any agreement
related to such indebtedness;
(v) the Issuer fails to comply with the provisions of Section 3.15
hereof at any time; or
(w) a Change of Control.
"Termination Statement" has the meaning set forth in Section 2.11(h)
hereof.
"Three Month Average Excess Spread" means, with respect to any
Determination Date, the average of the Excess Spreads on such Determination Date
and the two preceding Determination Dates.
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"Transaction Documents" means, collectively, the Certificate of Trust,
this Indenture, the Sale and Servicing Agreement, the Contribution Agreement,
the Note Purchase Agreement, each Note, each Contributor Assignment, each
Depositor Assignment, each Funding Certificate, the Custodian Agreement, the
Issuer Trust Agreement and the Fee Letter.
"Transfer Date" means the Business Day immediately preceding each Payment
Date.
"Transferee Letter" has the meaning set forth in Section 2.07(a) hereof.
"Trust Estate" means the property and rights Granted to the Indenture
Trustee pursuant to the Granting Clause of this Indenture for the benefit of
Noteholders.
"UCC" means the Uniform Commercial Code as adopted in the State of New
York, and in any other State having jurisdiction over the assignment, transfer,
pledge of the Receivables and the Contributed Assets from the Contributor to the
Depositor or of the Receivables and the Deposited Assets from the Depositor to
the Issuer or of the Trust Estate from the Issuer to the Indenture Trustee.
"Unused Fee" means the Unused Fee as defined and set forth in the Fee
Letter.
"Vice President" means, with respect to the Contributor, the Depositor,
the Servicer or the Indenture Trustee, any vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president."
Section 1.02. Calculations. Calculations required to be made pursuant to
this Indenture shall be made on the basis of information or accountings as to
payments on each Note furnished by the Servicer. Except to the extent they are
incorrect on their face, such information or accountings may be conclusively
relied upon in making such calculations, but to the extent that it is later
determined that any such information or accountings are incorrect, appropriate
corrections or adjustments will be made.
ARTICLE II
THE NOTES; RECONVEYANCE
Section 2.01. General.
(a) All payments of principal and interest with respect to the Notes shall
be made only from the Trust Estate on the terms and conditions specified herein.
Each Noteholder, by its acceptance of the Notes, agrees that, subject to the
repurchase obligations of the Contributor, the Depositor and the Issuer and the
indemnification obligations provided for herein, in the Sale and Servicing
Agreement and in the Contribution Agreement, it will have recourse solely
against such Trust Estate and such repurchase and indemnification obligations.
(b) Except as otherwise provided herein, all Notes shall be substantially
identical in all respects. Except as specifically provided herein, all Notes
issued, authenticated and delivered under this Indenture shall be in all
respects equally and ratably entitled to the benefits hereof
27
without preference, priority or distinction on account of the actual time or
times of authentication and delivery, all in accordance with the terms and
provisions of this Indenture.
(c) The aggregate stated principal balance of the Notes that may be
executed on behalf of the Issuer by an Authorized Officer of the Owner Trustee
and authenticated and delivered by the Indenture Trustee and Outstanding at any
given time under this Indenture is limited to $450,000,000.
Noteholders shall be entitled to payments of interest as provided herein.
The Notes shall have a final maturity on the Maturity Date. All Notes shall be
secured on a parity with one another, with no Outstanding Note having any
priority over any other Outstanding Note.
(d) The Notes that are authenticated and delivered to the Noteholders by
the Indenture Trustee to or upon an Issuer Order on the Closing Date or the
Initial Funding Date, as applicable, shall be dated as of the Closing Date or
Initial Funding Date, respectively. Any Note issued later in exchange for, or in
replacement of, any Note issued on the Closing Date or the Initial Funding Date
shall be dated the date of its authentication.
(e) Each Note is issuable in the minimum denomination of $1,000,000 unless
otherwise agreed to by the Issuer and the Agent.
Section 2.02. Forms of Notes. The Notes shall be designated as the "Bay View
2005 Warehouse Trust Automobile Receivables-Backed Notes, Series 2005-1." The
Notes shall be in substantially the form set forth in Exhibit D 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 Issuer, as evidenced by its
execution thereof.
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.
Each Note shall be dated the date of its authentication. The terms of the
Notes are set forth in Exhibit D, and are part of the terms of this Indenture.
Section 2.03. Payment of Principal and Interest. (a) Principal payments on
the Notes will be made on each Payment Date in an amount at least equal to the
Principal Payment Amount. Any outstanding Note Principal Balance shall be
payable on the Maturity Date. The amount of principal payments on the Notes
shall be made pursuant to the provisions of Section 5.03(b) hereof.
(b) Noteholders shall be entitled to receive payments of interest on their
respective Note Principal Balances as provided herein at the applicable Note
Interest Rate from the date of issuance of each Note to such Holder until the
Note Principal Balance of such Holder's Note is reduced to zero or until payment
is provided therefor as set forth in Article VI hereof. After the initial
Payment Date following the Initial Funding Date, payments of interest accrued on
each Note will be calculated on the average daily outstanding Note Principal
Balance of such Note for
28
the period from and including the Payment Date immediately preceding the
applicable Payment Date after giving effect to any payments of principal on such
immediately preceding Payment Date, to but excluding the applicable Payment
Date. With respect to the initial Payment Date following the Initial Funding
Date, interest on each Note will be calculated on the average daily outstanding
Note Principal Balance of such Note from the Initial Funding Date through the
day preceding such initial Payment Date. All other computations of interest
accrued on any Note shall be made on the basis of a 360-day year and the actual
days elapsed as set forth in the Note Purchase Agreement.
(c) If the entire amount of the Note Interest that is due on any Payment
Date with respect to any Note shall not have been punctually made or duly
provided for when and as due (after giving effect to any applicable cure or
grace period), then interest on the applicable Overdue Interest shall accrue,
from the date such amount was due until paid, at the applicable Note Interest
Rate with respect to such Note.
(d) On each succeeding LIBOR Determination Date, the Indenture Trustee
will determine LIBOR on the basis of the offered rates for deposits in United
States dollars having a maturity of a time period equal to the applicable
Interest Rate Period, commencing on such LIBOR Determination Date as reported by
any generally-recognized financial information service. With the consent of all
of the Noteholders, the Indenture Trustee may use another method to determine
LIBOR. If LIBOR cannot be reasonably determined, the Indenture Trustee may
select an alternative but substantially equivalent index rate with the consent
of all of the Noteholders. On each LIBOR Determination Date prior to 3:00 p.m.,
New York City time, the Indenture Trustee shall send to the Servicer by
facsimile transmission notification of LIBOR.
Section 2.04. Payments to Noteholders. (a) Noteholders shall, subject to
the priorities and conditions set forth in Section 5.03(b), be entitled to
receive payments of interest and principal on each Payment Date (including any
Overdue Interest). Any payment of interest or principal payable with respect to
the Notes on the applicable Payment Date shall be made to the Person in whose
name such Note is registered at the close of business on the Record Date for
such Payment Date in the manner provided in Section 5.04 hereof.
(b) All reductions in the principal balance of a Note (or one or more
Predecessor Notes) effected by payments of principal made on any Payment Date
shall be binding upon all Holders of such Note and of any Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof,
whether or not such payment is noted on such Note.
Section 2.05. Execution, Authentication, Delivery and Dating. (a) The
Notes shall be executed on behalf of the Issuer by an Authorized Officer of the
Owner Trustee. The signature of such Authorized Officer on the Notes may be
manual or facsimile. Notes bearing the manual or facsimile signature of any
individual who was, at the time of execution thereof, an Authorized Officer of
the Issuer, shall bind the Issuer, notwithstanding the fact that such individual
ceased to hold such office prior to the authentication and delivery of such
Notes or did not hold such office at the date of issuance of such Notes.
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Notes executed on behalf of the Issuer by
an Authorized
29
Officer of the Owner Trustee to the Indenture Trustee for authentication, and
the Indenture Trustee, upon receipt of the Notes and of an Issuer Order, shall
authenticate and deliver such Notes; provided, however, that the Indenture
Trustee shall not authenticate the Notes on the Closing Date or the Initial
Funding Date, as applicable, unless and until it shall have received the
documents listed in Section 2.11 hereof.
(c) Each Note authenticated and delivered by the Indenture Trustee to or
upon Issuer Order on or prior to the Closing Date shall be dated the Closing
Date. All other Notes that are authenticated after the Closing Date for any
other purposes under the Indenture shall be dated the date of their
authentication.
(d) Notes issued upon transfer, exchange or replacement of other Notes
shall be issued in authorized denominations reflecting the Note Principal
Balance so transferred, exchanged or replaced, but shall represent only the
principal balance of the Notes so transferred, exchanged or replaced. In the
event that any Note is divided into more than one Note in accordance with this
Article II, such Note Principal Balance shall be divided among the Notes
delivered in exchange therefor.
(e) 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 a Responsible
Officer of the Indenture Trustee, and such executed certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered.
Section 2.06. Registration, Registration of Transfer and Exchange. (a) The
Indenture Trustee (the "Note Registrar") shall cause to be kept at its Corporate
Trust Office a register (the "Note Register"), in which, subject to such
reasonable regulations as it may prescribe, the Indenture Trustee shall provide
for the registration of Notes and the registration of transfers of Notes.
If a Person other than the Indenture Trustee is appointed by the Issuer as
Note Registrar, the Issuer will give each of the Indenture Trustee, the Owner
Trustee and the Agent prompt written notice of the appointment of such Note
Registrar and of the location, and any change in the location, of the Note
Register. The Indenture Trustee, the Owner Trustee, the Agent, each Noteholder
and each Financial Institution shall have the right to inspect the Note Register
at all reasonable times and to obtain copies thereof. The Indenture Trustee, the
Owner Trustee, the Agent, each Noteholder and each Financial Institution shall
have the right to rely upon a certificate executed on behalf of the Note
Registrar by a Responsible Officer thereof as to the names and addresses of the
Noteholders and the principal amounts and the amounts and number of such Notes.
(b) Only upon surrender for registration of transfer of any Note at the
Corporate Trust Office and subject to the conditions set forth in Section 2.05
hereof, an Authorized Officer of the Owner Trustee, on behalf of the Issuer,
shall execute, and the Indenture Trustee or its agent shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new
30
Notes of any authorized denominations, and of a like aggregate principal amount
and Maturity Date.
(c) At the option of the Holder, a Note may be exchanged for other Notes
of any authorized denominations and of a like aggregate principal amount and
Maturity Date, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, an Authorized
Officer of the Owner Trustee, on behalf of the Issuer, shall execute, and the
Indenture Trustee or its agent shall authenticate and deliver, the Notes which
the Noteholder making the exchange is entitled to receive.
(d) 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 Agreement, as the Notes surrendered
upon such registration of such transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall (if so required by the Issuer or the Note Registrar) be duly
endorsed or be accompanied by a written instrument of transfer in form
reasonably satisfactory to the Issuer and the Indenture Trustee duly executed,
by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes.
Section 2.07. Transfer and Exchange. (a) The Notes have not been registered
or qualified under the Securities Act or the securities laws of any State. No
transfer of any Note shall be made unless that transfer is made in a transaction
which does not require registration or qualification under the Securities Act or
under applicable State securities or "Blue Sky" laws. In the event that a
transfer is to be made without registration or qualification, such Noteholder's
prospective transferee shall either (i) deliver to the Indenture Trustee a
Transferee Letter in the form attached hereto as Exhibit E (the "Transferee
Letter"), or (ii) deliver to the Indenture Trustee an Opinion of Counsel that
the transfer is exempt from such registration or qualification (which opinion
shall not be at the expense of the Issuer, the Indenture Trustee or the
Servicer, and which may be an opinion of in-house counsel to the transferor or
the transferee of the Note). Neither the Issuer nor the Indenture Trustee is
obligated to register or qualify the Notes under the Securities Act or any other
securities law. Any such Holder desiring to effect such transfer shall, and does
hereby agree to, indemnify the Indenture Trustee, the Owner Trustee (as such and
in its individual capacity), the Agent and the Issuer against any liability,
cost or expense (including attorneys' fees) that may result if the transfer is
not so exempt or is not made in accordance with such federal and State laws.
(b) No acquisition or transfer of a Note or any interest therein may be
made unless the Indenture Trustee is provided with evidence that establishes to
the satisfaction of the Indenture Trustee that one of the following is true:
either (a) that it will not acquire the Notes with the assets of any "employee
benefit plan" as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") which is subject to Title I of
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ERISA or any "plan" as defined in Section 4975 of the Code (each such entity, a
"Benefit Plan") or (b) no non-exempt "prohibited transaction" under Section 406
of ERISA or Section 4975 of the Code will occur in connection with its
acquisition or holding of the Notes.
(c) The Indenture Trustee shall have no liability to the Issuer or any
Noteholder arising from a transfer of any such Note in accordance with Section
2.07(a).
Section 2.08. Mutilated, Destroyed, Lost or Stolen Notes. (a) If (i) any
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 the Indenture Trustee to hold each of the Issuer
and the Indenture Trustee harmless, then, in the absence of actual notice to the
Issuer or the Indenture Trustee that such Note has been acquired by a protected
purchaser, the Issuer shall execute, and the Indenture Trustee shall
authenticate and deliver upon Issuer Order, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Note, a new Note or Notes of the same
tenor and principal balance bearing a number not contemporaneously outstanding;
provided, however, that if any such mutilated, destroyed, lost or stolen Note
shall have become subject to receipt of payment in full, instead of issuing a
new Note, the Indenture Trustee may make a payment with respect to such Note
without surrender thereof, except that any mutilated Note shall be surrendered.
If, after the delivery of such new Note or payment with respect to a destroyed,
lost or stolen Note pursuant to the proviso to the preceding sentence, a
protected purchaser of the original Note in lieu of which such new Note was
issued presents for receipt of payments such original Note, the Issuer and the
Indenture Trustee shall be entitled to recover such new Note (or such payment)
from the Person to whom it was delivered or any Person taking such new Note from
such Person, except a protected purchaser, and each of the Issuer and the
Indenture Trustee shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage or cost incurred by the
Issuer or the Indenture Trustee in connection therewith.
(b) Upon the issuance of any new Note under this Section, the Issuer or
the Indenture Trustee may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto.
(c) Every new Note issued pursuant to this Section 2.08 in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Issuer, whether or not the 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.
(d) The provisions of this Section 2.08 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment with respect to mutilated, destroyed, lost or stolen
Notes.
Section 2.09. Persons Deemed Noteholders. Before due presentment for
registration of transfer of any Note, the Issuer or 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 the owner of such Note (a) on the applicable
Record Date for the purpose of receiving payments with respect
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to principal and interest on such Note and (b) on any date for all other
purposes whatsoever, whether or not such Note be overdue, and neither the
Issuer, the Indenture Trustee nor any agent of the Issuer or the Indenture
Trustee shall be affected by any notice to the contrary.
Section 2.10. Cancellation of Notes. All certificated Notes surrendered for
payment, registration of transfer, exchange or prepayment shall, if surrendered
to any Person other than the Indenture Trustee, be delivered to the Indenture
Trustee and shall be promptly canceled by it. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Note 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 2.10 except as expressly permitted by this
Indenture. All canceled Notes shall be held and disposed of by the Indenture
Trustee in accordance with its standard retention and disposal policy.
Section 2.11. Conditions to Closing. The Notes shall be executed,
authenticated and delivered on the Closing Date in accordance with Section 2.05
and, upon receipt by the Indenture Trustee and the Agent, on behalf of the
Noteholders, of the following:
(a) an Issuer Order authorizing the authentication and
delivery of such Notes by the Indenture Trustee;
(b) fully executed originals of the Transaction Documents;
(c) Opinions of Counsel addressed to the Indenture Trustee and
the Agent, on behalf of the Noteholders in form and substance
satisfactory to the Indenture Trustee and the Agent, on behalf of
the Noteholders, addressing corporate, security interest, bankruptcy
and other matters;
(d) an Officer's Certificate of an Authorized Officer of the
Issuer, stating that:
(i) all representations and warranties of the Issuer
contained in the Transaction Documents are true and correct
and no defaults exist under the Transaction Documents;
(ii) 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, this Indenture or any other
Transaction Document, the organizational documents or any
other constituting documents of the Issuer or 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, and that all
conditions precedent provided in this Indenture relating to
the authentication and delivery of the Notes have been fully
satisfied; and
(iii) all conditions precedent in this Indenture and in
the other Transaction Documents have been satisfied;
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(e) an Officer's Certificate dated as of the Closing Date, of
an Authorized Officer of each of the Depositor and Bay View
Acceptance that:
(i) such Person is not in default under any of the
Transaction Documents to which it is a party, and the transfer
of the Receivables to the Depositor and the Issuer and the
simultaneous Grant of the Receivables to the Indenture Trustee
will not result in any breach of any of the terms, conditions
or provisions of, or constitute a material default under, the
organizational documents or any other constituent documents of
such Person or any indenture, mortgage, deed of trust or other
agreement or instrument to which such Person is a party or by
which it is bound, or any order of any court or administrative
agency entered in any proceeding to which such Person is a
party or by which it may be bound or to which it may be
subject;
(ii) all representations and warranties of such Person
contained in each of the Transaction Documents to which it is
a party are true and correct; and
(iii) all conditions precedent in this Indenture and in
the other Transaction Documents have been satisfied;
(f) a Secretary's Certificate dated as of the Closing Date of
each of the Depositor and Bay View Acceptance regarding certain
organizational matters and the incumbency of the signatures of the
Depositor and Bay View Acceptance;
(g) the Contributor Assignment to the Depositor by the
Contributor of its rights under the Initial Receivables and the
related Contributed Assets, duly executed by the Contributor and the
Depositor and the Depositor Assignment to the Issuer by the
Depositor of its rights under the Initial Receivables and the
related Deposited Assets, duly executed by the Depositor and the
Issuer;
(h) evidence of execution and filing of the Financing
Statements with respect to the Trust Estate and all applicable UCC
termination statements or partial releases (collectively, the
"Termination Statements") terminating the liens of creditors of the
Contributor or any other Person with respect to the Trust Estate
(except as expressly contemplated by the Transaction Documents) and
presentment of the Financing Statements and Termination Statements
(which shall constitute all of the Perfection UCCs with respect to
the Closing Date) to the proper Person for recording to perfect the
Indenture Trustee's first priority security interest in such Trust
Estate Granted on the Closing Date registered in the name of the
Indenture Trustee or its nominee and agent (a copy of the file
stamped Financing Statements and Termination Statements shall be
delivered by the Servicer to the Indenture Trustee);
(i) evidence that the Indenture Trustee has established the
Collection Account, the Spread Account and the Pre-Funding Account;
(j) delivery by the Custodian to the Issuer and the Indenture
Trustee of an executed Certification and delivery by the Indenture
Trustee to the Servicer, the Issuer, the Agent and the Custodian of
an executed Acknowledgement;
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(k) the Servicer shall have deposited in the Collection
Account all Collections received by the Servicer in respect of the
Initial Receivables since the Initial Cutoff Date;
(l) the Spread Account shall have been funded to an amount
equal to the Requisite Amount;
(m) a consolidated balance sheet of Bay View Acceptance and
its subsidiaries as at the end of its fiscal year ending December
31, 2004, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal
year, all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing
reasonably acceptable to the Agent, which report and opinion shall
be prepared in accordance with generally accepted auditing standards
and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to
the scope of such audit;
(n) a form of Monthly Servicer Report; and
(o) any other certificate, document or instrument reasonably
requested by the Agent, the Noteholders or the Indenture Trustee.
Section 2.12. Funding Events. (a) On the Closing Date and in connection with
any Subsequent Transfer upon a Funding Date, the following conditions must be
satisfied:
(i) The Contributor shall have forwarded or caused to be
forwarded to the Custodian for receipt at least two (2) Business
Days preceding such Funding Date (each, a "Delivery Date"), the
Custodian Files related to the Subsequent Receivables to be acquired
and Granted on such Funding Date, the Custodian shall have delivered
to the Issuer, the Indenture Trustee and the Agent an executed
Certification for such Custodian Files and the Indenture Trustee
shall have delivered to the Servicer, the Issuer, the Agent and the
Custodian an executed Acknowledgement.
(ii) On or prior to such Funding Date, the Issuer shall have
delivered, or caused to be delivered, to the Indenture Trustee, the
Agent and the Custodian, the following:
(A) a duly executed Contributor Assignment and a duly
executed Depositor Assignment with respect to the related
Subsequent Receivables;
(B) an executed Notice of Funding relating to such
Subsequent Transfer together with an electronic transmission
of the information on the related Subsequent Receivables in a
format acceptable to each of the Indenture Trustee, and the
Agent and any other information reasonably requested by the
Indenture Trustee or the Agent with respect to the Subsequent
Receivables shall have been delivered at least two (2)
Business Days prior to the Funding Date;
(C) an executed Funding Certificate relating to such
Subsequent Transfer together with a Schedule of Receivables;
and
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(D) Opinions of Counsel in form and substance satisfactory to
the Indenture Trustee and the Agent, with respect to certain
corporate, security interest and bankruptcy matters with respect to
the Subsequent Receivables; provided, however, that if the opinions
delivered on the Closing Date cover such matters with respect to the
Subsequent Receivables, then no such Opinions of Counsel need be
delivered on such Funding Date.
(iii) After the acquisition by the Issuer of the related Subsequent
Receivables (with each Receivable Balance or APR for any Receivable
measured as of its related Cutoff Date) the Collateral Test Amount is not
less than zero (0), and each of the representations and warranties set
forth in Section 3.02(a)(xxv) of the Sale and Servicing Agreement shall be
true and correct on the Cutoff Date related to such Funding Date.
(iv) No Default, Event of Default, Servicer Event of Default or
Termination Event shall have occurred.
(v) The Servicer shall have deposited in the Collection Account all
Collections received by the Servicer in respect of the related Subsequent
Receivables since the related Cutoff Date.
(vi) Each of the Issuer, the Contributor and the Depositor shall
have certified that as of such Funding Date, (A) no such Person shall be
insolvent or become insolvent as a result of the transfer of Subsequent
Receivables on such Funding Date, (B) no such Person shall intend to incur
or believe that it shall incur debts that would be beyond its ability to
pay as such debts mature, (C) such Subsequent Transfer shall not have been
made with actual intent to hinder, delay or defraud any Person, (D) the
assets of each such Person shall not constitute unreasonably small capital
to carry out its respective business as conducted and (E) no such Person
received less than a reasonably equivalent value in exchange for the
conveyance of the Subsequent Receivables by the Contributor to the
Depositor and the conveyance by the Depositor to the Issuer and the Grant
of such Subsequent Receivables to the Indenture Trustee on the related
Funding Date.
(vii) The Funding Period shall not have terminated.
(viii) Each of the Contributor and the Depositor shall, at its own
expense, on or prior to the Funding Date indicate in its computer files
that the related Subsequent Receivables have been sold to the Issuer
pursuant to the Sale and Servicing Agreement and the related Contributor
Assignment and Depositor Assignment and Granted to the Indenture Trustee
pursuant to this Indenture.
(ix) No selection procedures adverse to the interests of the
Noteholders shall have been utilized in selecting the Subsequent
Receivables.
(x) The related Subsequent Transfer shall not result in a material
adverse tax consequence to the Issuer or the Noteholders.
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(xi) Each of the Contributor and the Depositor shall have taken any
action required to maintain the first priority perfected ownership
interest of the Issuer and the Indenture Trustee in the Trust Estate.
(xii) On or before such Funding Date (other than any Funding Date
occurring prior to the delivery of the Hedge Agreement(s) as required by
Section 3.15 hereof), the Issuer shall have executed one or more Hedge
Agreements with an aggregate notional amount equal to the Note Principal
Balance after taking into consideration the Additional Note Principal
Balance to be advanced by the Noteholders on such Funding Date.
(xiii) On or before such Funding Date, each of the Contributor, the
Depositor and the Issuer shall have provided any other information
reasonably requested by the Agent, the Noteholders or the Indenture
Trustee with respect to any Subsequent Receivables.
Section 2.13. Fundings. (a) Subject to satisfaction of the conditions
precedent set forth in Sections 2.11 or 2.12 hereof, as applicable, and Eligible
Receivables being available to be acquired pursuant to the Contribution
Agreement, during the Funding Period the Issuer may, at its sole option, from
time to time request that the Noteholders advance on any Funding Date additional
amounts (such amounts, the "Additional Note Principal Balance"), and the
Noteholders which are making such advances shall remit the Additional Note
Principal Balance in accordance with the terms of the Note Purchase Agreement.
Each Noteholder shall record, on the schedule attached to such
Noteholder's Note, the date and amount of any Additional Note Principal Balance
advanced by it, and each repayment thereof; provided that failure to make such
recordation on such schedule or any error in such schedule shall not adversely
affect any Noteholder's rights with respect to its Note Principal Balance and
its right to receive interest payments in respect of the Note Principal Balance
held by such Noteholder.
The Indenture Trustee shall keep a written record of the Note Principal
Balance, which amount is to be provided by the Servicer in its Monthly Servicer
Report of each Note. Absent manifest error, the Note Principal Balance of each
Note as set forth in the Noteholder's records shall be binding upon all
applicable parties, notwithstanding any other records; provided that failure by
any the Indenture Trustee to make such recordation on such Noteholder's records
shall not adversely affect any Noteholder's rights with respect to its Note
Principal Balance and its right to receive interest payments in respect of the
Note Principal Balance held by such Noteholder.
(b) The aggregate of the Receivable Balances for a Pool of Receivables
(and the Aggregate Receivable Balance, including such Pool of Receivables) shall
be determined by the Servicer on behalf of the Issuer and shall be reflected in
the Funding Certificate with respect to Receivables identified on the related
Schedule of Receivables attached to the Funding Certificate for such Funding.
Each Pool shall become subject to this Indenture.
(c) The Issuer shall acquire funds in an amount not to exceed the
Receivables Advance Amount on the Initial Funding Date or any subsequent Funding
Date throughout the
37
Funding Period from the Noteholders, upon the request of the Issuer, and the
making of advances by the Noteholders of Additional Note Principal Balances in
accordance with the Note Purchase Agreement in an amount equal to or greater
than $1,000,000 (or such lesser amount agreed to between the Issuer and the
Agent from time to time); provided, however, that the conditions in Section 2.12
are satisfied and that after such Funding the Note Principal Balance shall not
be greater than the Maximum Outstanding Note Amount.
Section 2.14. Fundings by Noteholders. Subject to the terms hereof and
further subject to the Note Purchase Agreement, each Noteholder which is making
an advance will use its best efforts to initiate a wire transfer to the
Indenture Trustee of the Additional Note Principal Balance, that is specified in
the Funding Certificate (which shall be an amount equal to such Noteholder's
share of the Additional Note Principal Balance, determined by the terms of the
Note Purchase Agreement) at JPMorgan Chase Bank, N.A., ABA 000000000, for
further credit to Account # 00103409232, REF: Bay View 2005-A #10223546, by 1:00
p.m. (New York City time) on the applicable Funding Date in immediately
available funds. The Indenture Trustee shall, subject to the satisfaction of the
conditions precedent set forth in Section 2.11 or Section 2.12, as applicable,
simultaneously transfer such Additional Note Principal Balance, to or at the
direction of the Issuer in accordance with the written instructions of the
Issuer. Such amounts received by the Indenture Trustee from the Noteholders
shall be held by the Indenture Trustee as part of the Trust Estate until
disbursed to or at the written direction of the Issuer. Such amounts shall not
be commingled with any other monies held by the Indenture Trustee.
Section 2.15. Access to List of Noteholders' Names and Addresses. The
Indenture Trustee shall furnish or cause to be furnished to the Servicer, the
Agent, any Noteholder or any Financial Institution within 15 days after receipt
by the Indenture Trustee of a request therefor from the Servicer in writing, a
list, in such form as the Servicer may reasonably require, of the names and
addresses of the Noteholders as of the most recent Record Date.
ARTICLE III
COVENANTS; COLLATERAL; REPRESENTATIONS; WARRANTIES
Section 3.01. Performance of Obligations. (a) The Issuer will not take any
action or permit any action to be taken by others which would release any Person
from any of such Person's covenants or obligations under any instrument included
in the Trust Estate, or which would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such instrument, except as expressly provided in this
Indenture.
(b) To the extent consistent with its organizational documents, the Issuer
may contract with other Persons to assist it in performing its duties hereunder,
and any performance of such duties shall be deemed to be action taken by the
Issuer. To the extent that the Issuer contracts with other Persons which include
or may include the furnishing of reports, notices or correspondence to the
Indenture Trustee, the Issuer shall identify such Persons in a written notice to
the Indenture Trustee, each Noteholder and the Agent.
38
(c) The Issuer, the Contributor and the Depositor will characterize (i)
the transfer of the Receivables by the Contributor to the Depositor pursuant to
the Contribution Agreement as a contribution for financial accounting purposes
and for federal income tax purposes, (ii) the transfer of the Receivables by the
Depositor to the Issuer pursuant to the Sale and Servicing Agreement as an
absolute transfer for legal purposes, (iii) the Grant of the Receivables by the
Issuer under this Indenture as a pledge for federal income tax purposes and for
financial accounting purposes, (iv) the Issuer as the owner of the Receivables
for financial accounting purposes and for federal income tax purposes, (v) the
Notes as indebtedness of the Depositor for federal income tax purposes and (vi)
the Notes as indebtedness of the Contributor and its consolidated subsidiaries
for financial accounting purposes. In this regard, the financial statements of
the Contributor and its consolidated subsidiaries will show the Receivables as
owned by the consolidated group and the Notes as indebtedness of the
consolidated group (and will contain appropriate footnotes describing the
transfers to the Depositor and the Issuer and the pledge to the Indenture
Trustee), and the federal tax returns of the Contributor and its consolidated
subsidiaries will indicate that the Notes are indebtedness of such consolidated
group. The Issuer will cause the Servicer to file all required tax returns and
associated forms, reports, schedules and supplements thereto in a manner
consistent with such characterizations.
(d) The Issuer covenants to pay all taxes or other similar charges levied
by any governmental authority with regard to the Trust Estate (which shall
include paying any Affiliate of the Issuer who pays such taxes for any
affiliated group of which the Issuer is a member), except to the extent that the
validity or amount of such taxes is contested in good faith, via appropriate
proceedings and with adequate reserves established and maintained therefor in
accordance with generally accepted accounting principles.
(e) The Issuer hereby assumes liability for all liabilities associated
with the Trust Estate or created under this Indenture, including but not limited
to any obligation arising from the breach or inaccuracy of any representation,
warranty or covenant of the Issuer set forth herein. Notwithstanding the
foregoing, the Issuer has and shall have no liability with respect to the
payment of principal and interest on the Notes, except as otherwise provided in
this Indenture.
Section 3.02. Negative Covenants. The Issuer will not: (a) sell, transfer,
exchange or otherwise dispose of any portion of its interest in the Trust Estate
except as expressly permitted by this Indenture;
(b) claim any credit on, or make any deduction from, the principal of or
interest on any of the Notes by reason of the payment of any taxes levied or
assessed upon any portion of the Trust Estate;
(c) merge or consolidate in whole or in part, except (i) as permitted in
paragraph (ii) of Section 3.10(b) or (ii) with the prior written consent of the
Majority Holders;
(d) permit the validity or effectiveness of this Indenture or any Grant
hereunder 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 under this Indenture, except as may
be expressly permitted hereby;
39
(e) permit any Lien (other than the Lien of this Indenture or any
Permitted Lien) to be created on or extend to or otherwise arise upon or burden
the Trust Estate or any part thereof or any interest therein or the proceeds
thereof;
(f) permit the Lien of this Indenture not to constitute a valid first
priority, perfected security interest in the Trust Estate;
(g) incur, assume or guarantee any indebtedness of any Person secured by
any Receivables pledged under this Indenture, except (i) for such obligations as
may be incurred by the Issuer in connection with the issuance of the Notes
pursuant to this Indenture and (ii) as otherwise expressly permitted herein;
(h) amend or otherwise modify any Transaction Document unless such
amendment is consented to in writing by the Majority Holders and the Indenture
Trustee; or
(i) act in violation of its Certificate of Trust or the Issuer Trust
Agreement.
Section 3.03. Money for Note Payments. (a) All payments with respect to any
Notes which are to be made from amounts withdrawn from the Collection Account
pursuant to Section 5.03 hereof shall be punctually made on behalf of the Issuer
by the Indenture Trustee or by a Paying Agent, and no amounts so withdrawn from
an Account for payments with respect to Notes shall be paid over to the Issuer
under any circumstances except as provided in this Section 3.03 and Article V
hereof.
(b) When there shall be a Paying Agent that is not also the Note
Registrar, the Issuer shall furnish, or cause the Note Registrar to furnish, no
later than the fifth calendar day after each Record Date, a list, in such form
as such Paying Agent may reasonably require, of the names and addresses of the
Noteholders and of the number of individual Notes and the Note Principal Balance
of such Notes held by each such Noteholder.
(c) Whenever there shall be a Paying Agent other than the Indenture
Trustee, the Issuer will, on or before the Business Day immediately preceding
each Payment Date, direct the Indenture Trustee to deposit with such Paying
Agent an aggregate sum sufficient to distribute the amounts then becoming due
(to the extent funds are then available for such purpose in the Collection
Account), such sums to be held in trust for the benefit of the Persons entitled
thereto pursuant to this Indenture. Any moneys deposited with a Paying Agent in
excess of an amount sufficient to distribute the amounts then becoming due on
the Notes with respect to which such deposit was made shall, upon Issuer Order,
be paid over by such Paying Agent to the Indenture Trustee for application in
accordance with Article V hereof.
(d) The initial Paying Agent shall be the Indenture Trustee. Any
additional or successor Paying Agent shall be appointed by Issuer Order with the
prior written consent of the Majority Holders. The Issuer shall not appoint any
Paying Agent that is not, at the time of such appointment, an Eligible
Institution or trust company incorporated under the laws of the United States of
America or any State thereof and subject to supervision and examination by
federal or State banking authorities.
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(e) The Issuer will cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee, and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees, subject to the provisions of
this Section 3.03, that such Paying Agent will:
(i) allocate all sums received for payment to the Holders for which
it is acting as Paying Agent on each Payment Date among such Holders in
the proportion specified in the applicable Monthly Servicer Report;
(ii) 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 distributed to such Persons or otherwise
disposed of as herein provided and distribute such sums to such Persons as
herein provided;
(iii) if such Paying Agent is not the Indenture Trustee, immediately
resign as a Paying Agent and forthwith pay to the Indenture Trustee all
sums held by it in trust for payment with respect to the Notes if at any
time it ceases to meet the standards set forth in clause (d) above
required to be met by a Paying Agent at the time of its appointment;
(iv) if such Paying Agent is not the Indenture Trustee, give the
Indenture Trustee, the Noteholders, each Financial Institution and the
Agent notice of any Termination Event, Default, Event of Default or
Servicer Event of Default coming to its attention in the making of any
payments required to be made with respect to the Notes for which it is
acting as Paying Agent;
(v) if such Paying Agent is not the Indenture Trustee, at any time
during the continuance of any such Termination Event, Default, Event of
Default or Servicer Event of 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; and
(vi) comply with all requirements of the Code and all regulations
thereunder, with respect to the withholding from any payment 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 Paying Agent shall have first provided the calculations pertaining
thereto to the Indenture Trustee.
(f) 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, if other than the Indenture Trustee, 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 terms as those upon which such
sums were held by such Paying Agent; and upon such payment by any Paying Agent
to the Indenture Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
(g) Any money held by the Indenture Trustee or any Paying Agent in trust
for the payment of any amount distributable but unclaimed with respect to any
Note shall be held in a
41
non-interest bearing trust account, and if the same remains unclaimed for two
years after such amount has become due to the Noteholder, it shall be discharged
from such trust and paid to the Issuer upon an Issuer Order, without any further
action by any Person; 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. The Indenture Trustee may adopt and employ, at the
expense of the Issuer, any reasonable means of notification of such payment
(including, but not limited to, mailing notice of such payment to Noteholders
whose Notes have been called but have not been surrendered for prepayment or
whose right to or interest in moneys due and payable but not claimed is
determinable from the records of the Indenture Trustee or any Paying Agent, at
the last address of record for each such Noteholder).
Section 3.04. Restriction of Issuer Activities. Until the date that is one
year and one day after the payment by the Issuer in full of all payments on the
Notes, the Issuer will not on or after the date of execution of this Indenture:
(i) engage in any business or investment activities other than those necessary
for, incident to, connected with or arising out of, owning and Granting the
Trust Estate to the Indenture Trustee for the benefit of the Noteholders, or
contemplated hereby, in the Certificate of Trust, the Issuer Trust Agreement,
the Contribution Agreement and the Sale and Servicing Agreement; (ii) incur any
indebtedness secured in any manner by, or having any claim against, the Trust
Estate or the Issuer other than indebtedness arising under the Sale and
Servicing Agreement or the letter agreement relating to the Indenture Trustee
Fee; (iii) incur any other indebtedness except as permitted in the Certificate
of Trust or Issuer Trust Agreement; (iv) amend, or propose to the shareholders
of the Depositor for their consent any amendment of, the Issuer Trust Agreement
at the date of this Indenture (or, if the Issuer shall be a successor to the
Person named as the Issuer in the first paragraph of this Indenture, amend,
consent to amendment or propose any amendment of, the governing instruments of
such successor), without giving notice thereof in writing, 90 days prior to the
date on which such amendment is to become effective, to the Agent and obtaining
the prior written consent thereto of the Majority Holders; (v) except as
expressly permitted by this Indenture or the Transaction Documents, sell,
transfer, exchange or otherwise dispose of any of the properties or assets of
the Issuer, including those included in the Trust Estate; (vi) claim any credit
on, or make any deduction from the principal or interest payable in respect of,
the Notes (other than amounts properly withheld from such payments under the
Code) or assert any claim against any present or former Noteholder by reason of
the payment of the taxes levied or assessed upon any part of the Trust Estate;
(vii) permit the validity or effectiveness of this Indenture to be impaired, or
permit the Lien in favor of the Indenture Trustee created by 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; (viii)
permit the Lien of this Indenture not to constitute a valid perfected first
priority (other than with respect to any Permitted Lien) security interest in
the Trust Estate; (ix) amend, modify or fail to comply with the provisions of
the Transaction Documents without the prior written consent of the Majority
Holders; or (x) dissolve or liquidate in whole or in part or merge or
consolidate with any other Person, other than in compliance with Section 3.10.
Section 3.05. Protection of Trust Estate. (a) The Issuer intends the security
interest Granted pursuant to this Indenture in favor of the Indenture Trustee,
for the benefit of the
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Noteholders, the Agent and the Financial Institutions, to be prior to all other
liens in respect of the Trust Estate, and the Issuer shall take all actions
necessary to obtain and maintain, in favor of the Indenture Trustee, for the
benefit of the Noteholders, the Agent and the Financial Institutions, a first
lien on and a first priority, perfected security interest in the Trust Estate.
The Issuer will from time to time prepare, execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance, and other instruments
(all as presented to it in final execution form), and will take such other
action as may be necessary or advisable to:
(i) provide further assurance with respect to such Grant and/or
Grant more effectively all or any portion of the Trust Estate,
(ii) maintain, preserve or enforce (a) the lien and security
interest (and the priority thereof) in favor of the Indenture Trustee
created by this Indenture and (b) the terms and provisions 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 of the Trust Estate,
(v) preserve and defend title to any Receivable or other item
included in the Trust Estate and the rights of the Indenture Trustee and
of the Noteholders in such Receivable or other item against the claims of
all Persons, or
(vi) pay all taxes or assessments levied or assessed upon the Trust
Estate when due.
The Issuer shall deliver or cause to be delivered to the Indenture Trustee
file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recording, registration or filing. The Issuer shall cooperate fully with the
Indenture Trustee and the Agent in connection with the obligations set forth
above and will execute any and all documents reasonably required to fulfill the
intent of this Section 3.05.
(b) The Issuer hereby irrevocably appoints the Indenture Trustee as its
agent and attorney-in-fact (such appointment being coupled with an interest) to
execute, or authorize the filing of, upon the Issuer's failure to do so, any
financing statement, continuation statement or other instrument, document,
certificate or agreement required pursuant to this Section 3.05; provided,
however, that such designation shall not be deemed to create any duty in the
Indenture Trustee to monitor the compliance of the Issuer with the foregoing
covenants or to execute, or authorize the filing of, any instrument. The Issuer
shall cooperate with the Indenture Trustee and provide to the Indenture Trustee
any information, documents or instruments with respect to such financing
statement, continuation statement or other instrument that the Indenture Trustee
may reasonably require. For purposes of this Section 3.05(b), the Indenture
Trustee will not be deemed to have actual knowledge of any such default if the
Indenture Trustee has not, but should have, received an Opinion of Counsel
pursuant to Section 3.06 addressing the facts surrounding such default.
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(c) Except as necessary or advisable in connection with the fulfillment by
the Indenture Trustee of its duties and obligations described herein or in the
Sale and Servicing Agreement, the Indenture Trustee shall not remove any portion
of the Trust Estate that consists of money or is evidenced by an instrument,
certificate or other writing from the jurisdiction in which it was held as
described in the most recent Opinion of Counsel that was delivered pursuant to
Section 3.06 (or from the jurisdiction in which it was held as described in the
Opinion of Counsel delivered at the Closing Date pursuant to Section 2.11(c), if
no Opinion of Counsel has yet been delivered pursuant to Section 3.06) unless
the Indenture Trustee shall have first received an Opinion of Counsel to the
effect that the Lien created by this Indenture with respect to such property
will continue to be maintained after giving effect to such action or actions.
(d) No later than sixty (60) days prior to any of the Contributor, the
Depositor or the Issuer making any change in its or their name, identity,
jurisdiction of organization or structure which would make any financing
statement or continuation statement filed in accordance with paragraph (a) above
seriously misleading within the meaning of Section 9-506 of the UCC as in effect
in New York or wherever else necessary or appropriate under applicable law, or
otherwise impair the perfection of the security interest referred to in Article
II hereof, the Issuer shall give or cause to be given to the Indenture Trustee,
the Noteholders and the Agent written notice of any such change and shall file
such financing statements or amendments as may be necessary to continue the
perfection of the Indenture Trustee's security interest in the Trust Estate.
None of the Contributor, the Depositor or the Issuer shall become or seek to
become organized under the laws of more than one jurisdiction.
(e) The Issuer shall give the Indenture Trustee, the Noteholders and the
Agent written notice at least sixty (60) days prior to any relocation of the
Contributor's, the Depositor's or the Issuer's respective principal executive
office or jurisdiction of organization and whether, as a result of such
relocation, the applicable provisions of relevant law or the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall file such financing
statements or amendments as may be necessary to continue the perfection of the
Indenture Trustee's security interest in the Trust Estate. The Issuer shall at
all times maintain its principal executive office and jurisdiction of
organization within the United States of America.
Section 3.06. Opinions as to Trust Estate. (a) On the Closing Date and on the
date of each indenture supplement hereto, if any, 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 and
filing of this Indenture, and indentures supplemental hereto and other requisite
documents and with respect to the execution and filing of any financing
statements and continuation statements, as are necessary to perfect and make
effective the first priority Lien and security interest in favor of the
Indenture Trustee for the benefit of the Noteholders, 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 make such lien and security interest
effective.
(b) Within 90 days after the beginning of each calendar year, beginning
with the first calendar year beginning more than three months after the Closing
Date, the Issuer shall furnish to the Indenture Trustee and the Agent an Opinion
of Counsel either stating that, in the opinion of
44
such counsel, such action has been taken with respect to the recording, filing,
re-recording and re-filing of this Indenture, any indentures supplemental hereto
and any other requisite documents and with respect to the execution and filing
of any financing statements and continuation statements as is necessary to
maintain the Lien created by this Indenture with respect to the Trust Estate 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.
The Issuer shall also provide the Indenture Trustee and the Agent with a file
stamped copy of any document or instrument filed as described in such Opinion of
Counsel contemporaneously with the delivery of such Opinion of Counsel. Such
Opinion of Counsel shall also describe the recording, filing, re-recording and
re-filing 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 of this Indenture with respect to the Trust Estate. If the
Opinion of Counsel delivered to the Indenture Trustee and the Agent hereunder
specifies future action to be taken by the Issuer, the Issuer shall furnish a
further Opinion of Counsel no later than the time so specified in such former
Opinion of Counsel to the effect required hereby.
Section 3.07. Statement as to Compliance. The Issuer will deliver to the
Indenture Trustee, the Agent and the Initial Purchasers , within 90 days after
the end of each fiscal year, an Officer's Certificate stating, as to the signer
thereof, that, (a) a diligent review of the activities of the Issuer during the
preceding calendar year and of its performance under this Indenture has been
made under such officer's supervision, (b) to the best of such officer's
knowledge, based on such review, the Issuer has fulfilled all its obligations
under this Indenture throughout such year, or, if there has been a default in
the fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof and remedies therefor being
pursued, and (c) no event has occurred and is continuing which is, or after
notice or lapse of time or both would become, an Event of Default hereunder or,
if such an event has occurred and is continuing, specifying each such event
known to him or her and the nature and status thereof and remedies therefor
being pursued.
Section 3.08. Limitations on Lien. Except for the Lien created by this
Indenture, the Issuer will not create, incur or suffer, or permit to be created
or incurred or to exist, any Lien on any of the Trust Estate.
Section 3.09. Recording. The Issuer will, upon the Closing Date and
thereafter from time to time, cause financing statements and such other
instruments as may be required with respect thereto, including without
limitation, the Financing Statements to be filed, registered and recorded as may
be required by present or future law (with file stamped copies thereof delivered
to the Indenture Trustee and the Agent), publish notice thereof and create,
perfect and protect the lien hereof upon the Receivables and the other items of
the Trust Estate, and publish notice of and protect the validity of this
Indenture. The Issuer will, from time to time, perform or cause to be performed
any other act as required by law and will execute or cause to be executed any
and all further instruments (including financing statements, continuation
statements and similar statements with respect to any of said documents with
file stamped copies thereof delivered to the Indenture Trustee and the Agent)
that are necessary or reasonably requested by the Indenture Trustee or the Agent
for such creation, perfection, publication and protection. The Issuer shall pay,
or shall cause to be paid, all filing, registration and recording taxes and fees
incident thereto,
45
and all expenses, taxes and other governmental charges incident to or in
connection with the preparation, execution, delivery or acknowledgment of the
recordable documents, any instruments of further assurance, and the Notes. The
Issuer shall deliver (or cause to be delivered) to the Indenture Trustee and the
Agent file stamped copies of, or filing receipts for any document filed as
provided above, as soon as available following such filing.
Section 3.10. Agreements Not to Institute Bankruptcy Proceedings; Additional
Covenants. (a) The Issuer shall not, without the unanimous consent of the board
of directors of the Depositor (including each of its Independent Directors),
voluntarily institute any proceedings to adjudicate the Issuer a bankrupt or
insolvent, consent to the institution of bankruptcy or insolvency proceedings
against the Issuer, file a petition seeking or consenting to reorganization or
relief under any applicable federal or State law relating to bankruptcy, consent
to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Issuer or a substantial part of its property
or admit its inability to pay its debts generally as they become due or
authorize any of the foregoing to be done or taken on behalf of the Issuer.
(b) So long as any of the Notes are Outstanding:
(i) The Issuer will keep in full effect its existence, rights and
franchises as a statutory trust under the laws of the State of Delaware
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
each asset included in the Trust Estate.
(ii) The Issuer shall not consolidate or merge with or into any
other entity or convey or transfer its properties and assets substantially
as an entirety to any entity unless (A) the entity (if other than the
Issuer) formed or surviving such consolidation or merger, or that acquires
by conveyance or transfer the properties and assets of the Issuer
substantially as an entirety, shall be organized and existing under the
laws of the United States of America or any State thereof or the District
of Columbia as a special purpose bankruptcy remote entity, and shall
expressly assume in form satisfactory to the Majority Holders the
obligation to make due and punctual payments of principal and interest on
the Notes then Outstanding and the performance of every covenant on the
part of the Issuer to be performed or observed pursuant to the Indenture,
(B) immediately after giving effect to such transaction, no Default or
Event of Default under this Indenture shall have occurred and be
continuing, (C) the Issuer shall have delivered to the Noteholders, the
Agent and the Indenture Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance or
transfer complies with this Indenture, and (D) the Majority Holders shall
have given their prior written consent.
(iii) The funds and other assets of the Issuer shall not be
commingled with those of any other Person except to the extent expressly
permitted under the Transaction Documents.
(iv) The Issuer shall not be, become or hold itself out as being
liable for the debts of any other Person.
46
(v) The Issuer shall not form, or cause to be formed, any
subsidiaries.
(vi) The Issuer shall not change its name and shall act solely in
its own name and through its duly authorized officers or agents in the
conduct of its business, and shall conduct its business so as not to
mislead others as to the identity of the entity with which they are
concerned. The Issuer shall not have any employees.
(vii) The Issuer shall maintain its records and books of account and
shall not commingle its records and books of account with the records and
books of account of any other Person. The books of the Issuer may be kept
(subject to any provision contained in the applicable statutes) inside or
outside the State of Delaware at such place or places as may be designated
from time to time by the Certificate of Trust or Issuer Trust Agreement.
(viii) All actions of the Issuer shall be taken by an Authorized
Officer of the Issuer (or any Person acting on behalf of the Issuer).
(ix) The Issuer shall not amend, alter, change or repeal any
provision contained in this Section 3.10(b) without the prior written
consent of the Majority Holders, in their sole and absolute discretion.
(x) The Issuer shall not amend its Certificate of Trust (except as
required under the Delaware Statutory Trust Act, 12 Del. C., Section 3801
et seq.) or the Issuer Trust Agreement, without first obtaining the prior
written consent of the Majority Holders, in their sole and absolute
discretion.
(xi) The Issuer shall not dissolve or liquidate, in whole or in
part, except with the prior written consent of the Majority Holders, in
their sole and absolute discretion.
(xii) The Issuer maintains and will maintain separate records and
books of account from the Depositor and the Contributor and the
formalities of the form of its organization.
(xiii) The annual financial statements (if any) of a beneficial
owner of the Issuer and the annual financial statements of the Depositor
and the Contributor will disclose the effects of these transactions in
accordance with generally accepted accounting principles. Any consolidated
financial statements which consolidate the assets and earnings of the
Depositor and the Contributor with those of the Issuer will contain a
footnote stating that the assets of the Issuer will not be available to
creditors of the Contributor or the Depositor. The financial statements of
the Issuer, if any, will disclose that the assets of the Depositor and the
Contributor are not available to pay creditors of the Issuer.
(xiv) Other than certain costs and expenses related to the issuance
of the Notes, neither the Depositor nor the Contributor shall pay the
Issuer's expenses, guarantee the Issuer's obligations or advance funds to
the Issuer for payment of expenses except for costs and expenses for which
either the Depositor or the Contributor is required to make payments, in
which case the Issuer will reimburse such Person for such payment.
47
(xv) All business correspondences of the Issuer are and will be
conducted in the Issuer's own name and using its own stationary.
(xvi) The Depositor and the Contributor do not act and will not act
as agent of the Issuer and the Issuer does not and will not act as agent
of the Depositor or the Contributor.
(xvii) Except during the Funding Period, the Issuer shall not fund
the acquisition of any additional Receivables.
(xviii) The Issuer shall not make any expenditure (by long-term or
operating lease or otherwise) for capital assets (either realty or
personalty).
(xix) The Issuer shall comply with the requirements of all
applicable laws, the non-compliance with which would, individually or in
the aggregate, materially and adversely affect the ability of the Issuer
to perform its obligations under the Notes, this Indenture or any other
Transaction Document.
(xx) 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 or the Backup Servicer, (ii) redeem,
purchase, retire or otherwise acquire for value any such ownership or
equity interest or security or (iii) set aside or otherwise segregate any
amounts for any such purpose; provided, however, that the Issuer may make,
or cause to be made, distributions to the Servicer, the Backup Servicer,
the Owner Trustee and the Indenture Trustee as permitted by, and to the
extent funds are available for such purpose under, the Sale and Servicing
Agreement and the Issuer Trust Agreement. The Issuer will not, directly or
indirectly, make payments to or distributions from the Collection Account
or any other Account except in accordance with this Indenture and the
Transaction Documents.
Section 3.11. Providing of Notice. The Issuer, upon learning of any failure
on its part to observe or perform in any material respect any covenant,
representation or warranty of the Issuer set forth in this Indenture, the Sale
and Servicing Agreement or any other Transaction Document to which it is a
party, or of any failure on the part of the Contributor or the Depositor to
observe or perform in any material respect any covenant, representation or
warranty of the Contributor or the Depositor, as applicable, set forth in the
Contribution Agreement, the Sale and Servicing Agreement or any other
Transaction Document to which it is a party, as applicable, or upon learning of
any Default, Event of Default, Servicer Event of Default or Termination Event,
shall promptly notify, in writing, the Indenture Trustee, the Noteholders, and
the Contributor of such failure or Default, Event of Default, Servicer Event of
Default or Termination Event.
Section 3.12. Representations and Warranties of the Issuer. The Issuer hereby
reaffirms all of its representations, warranties and covenants made in each of
the other Transaction Documents and represents, warrants and covenants to the
Indenture Trustee, the Noteholders and the Agent that as of the Closing Date and
each Funding Date:
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(a) The Issuer is duly formed and is validly existing as a statutory
trust in good standing under the laws of the State of Delaware with full
power and authority to execute and deliver this Indenture, the Sale and
Servicing Agreement, the Custodian Agreement and each other Transaction
Document to which it is a party and to perform the terms and provisions
hereof and thereof; the Issuer is duly qualified to do business as a
foreign business entity in good standing, and has obtained all required
licenses and approvals, if any, in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires
such qualifications except those jurisdictions in which failure to be so
qualified would not have a material adverse effect on the business or
operations of the Issuer, the Trust Estate, the Noteholders, the Agent or
any Receivable;
(b) All necessary action has been taken by the Issuer to authorize
and empower the Issuer, and the Issuer has full power and authority to
execute, deliver and perform its obligations under this Indenture, the
Sale and Servicing Agreement, the Custodian Agreement and each other
Transaction Document to which it is a party, and the Issuer has full power
and is duly authorized to execute, deliver and perform its obligations
under this Indenture, the Sale and Servicing Agreement, the Custodian
Agreement and each other Transaction Document to which it is a party, and
no consent or approval of any Person is required for the execution,
delivery or performance by the Issuer of this Indenture, the Sale and
Servicing Agreement, the Custodian Agreement and each other Transaction
Document to which it is a party;
(c) This Indenture, the Sale and Servicing Agreement, the Custodian
Agreement and each other Transaction Document to which it is a party have
been duly executed and delivered, and the execution and delivery of this
Indenture, the Sale and Servicing Agreement, the Custodian Agreement and
each other Transaction Document to which it is a party by the Issuer and
its performance and compliance with the terms hereof and thereof will not
violate the Certificate of Trust or the Issuer Trust Agreement or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material contract, indenture, loan, credit agreement or any other
agreement or instrument (including, without limitation, the Transaction
Documents) to which the Issuer is a party or which may be applicable to
the Issuer or any of its assets;
(d) This Indenture, the Sale and Servicing Agreement, the Custodian
Agreement and each other Transaction Document to which it is a party
constitute valid, legal and binding obligations of the Issuer, enforceable
against it in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the enforcement of creditors' rights generally and
to general principles of equity;
(e) The Issuer is not in violation of, and the execution, delivery
and performance of this Indenture, the Sale and Servicing Agreement, the
Custodian Agreement and each other Transaction Document to which it is a
party by the Issuer will not constitute a violation with respect to, any
order or decree of any court or any order, regulation or demand of any
federal, State, municipal or governmental agency, which violation might
have consequences that would materially and adversely affect the
49
condition (financial or other) or operations of the Issuer or its
properties or might have consequences that would materially affect the
performance of its duties hereunder or thereunder;
(f) No proceeding of any kind, including but not limited to
litigation, arbitration, judicial or administrative, is pending or, to the
Issuer's knowledge, threatened against or contemplated by the Issuer which
would under any circumstance have an adverse effect on the execution,
delivery, performance or enforceability of this Indenture, the Notes or
any other Transaction Document;
(g) Each of the representations and warranties of the Issuer set
forth in the Sale and Servicing Agreement, the Issuer Trust Agreement and
each other Transaction Document to which it is a party is, as of the
Closing Date, and will be, as of each Funding Date, true and correct in
all material respects and each such representation and warranty is hereby
incorporated in this Indenture as if set forth herein in full.
(h) The Issuer has not incurred debt or engaged in activities not
related to the transactions contemplated hereunder except as permitted by
the Issuer Trust Agreement or Section 3.04 hereof.
(i) The Issuer is not insolvent and did not become insolvent as a
result of the Grant pursuant to this Indenture; the Issuer is not engaged
and is not about to engage in any business or transaction for which any
property remaining with the Issuer is unreasonably small capital or for
which the remaining assets of the Issuer are unreasonably small in
relation to the business of the Issuer or the transaction; the Issuer does
not intend to incur, and does not believe or reasonably should not have
believed that it would incur, debts beyond its ability to pay as they
become due; and the Issuer has not made a transfer or incurred an
obligation and does not intend to make such a transfer or incur such an
obligation with actual intent to hinder, delay or defraud any entity to
which the Issuer was or became, on or after the date that such transfer
was made or such obligation was incurred, indebted.
(j) (i) The transfer of the Receivables by the Contributor to the
Depositor pursuant to the Contribution Agreement is a contribution for
financial accounting purposes and federal income tax purposes, (ii) the
transfer of the Receivables by the Depositor to the Issuer pursuant to the
Sale and Servicing Agreement is an absolute transfer for legal purposes,
(iii) the Grant of the Receivables by the Issuer pursuant to the terms of
this Indenture is a pledge for financial accounting purposes and federal
income tax purposes, (iv) the Issuer is the owner of the Receivables for
financial accounting purposes and federal income tax purposes, and (v) the
Notes will be treated by the Issuer as indebtedness of the Depositor for
federal income tax purposes. In this regard, the financial statements of
the Contributor and its consolidated subsidiaries will show that the
Receivables are owned by such consolidated group and the Notes as
indebtedness of the consolidated group (and will contain footnotes
describing the transfers to the Depositor and the Issuer and the pledge to
the Indenture Trustee), and the federal tax returns of the Contributor and
its consolidated subsidiaries will indicate that the Notes are
indebtedness of such consolidated group.
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(k) As of the Initial Cutoff Date, the Aggregate Receivable Balance
is $266,513,454.44.
(l) The legal name of the Issuer is as set forth in this Indenture;
the Issuer has no trade names, fictitious names, assumed names or "doing
business as" names.
(m) Upon the delivery to the Custodian of the Custodian Files and
receipt from the Custodian of a Certification and the filing of the
Perfection UCCs in accordance with applicable law, the Indenture Trustee,
for the benefit of the Noteholders, shall have a first priority perfected
security interest in the Receivables and in the proceeds thereof, limited
with respect to proceeds to the extent set forth in Section 9-315 of the
UCC as in effect in the applicable jurisdiction. Other than with respect
to the Financed Vehicles, all filings (including, without limitation, UCC
filings) and other actions as are necessary in any jurisdiction to perfect
the ownership, security interest, or other interest of the Indenture
Trustee in the related Trust Estate, including delivery of the Receivables
and the Custodian Files to the Custodian, and the payment of any fees,
have been made or, with respect to Termination Statements, will be made
within two (2) Business Days of the Closing Date.
(n) None of the absolute transfer of the Receivables and security
interest in the Financed Vehicles by the Contributor to the Depositor
pursuant to the Contribution Agreement, the absolute transfer of the
Receivables and security interest in the Financed Vehicles by the
Depositor to the Issuer pursuant to the Sale and Servicing Agreement, or
the Grant by the Issuer to the Indenture Trustee pursuant to this
Indenture is subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction.
(o) The Issuer is not an "investment company" as such term is
defined in the 1940 Act.
(p) The principal place of business of the Issuer is located in the
State of California and the chief executive office and the jurisdiction of
organization of the Issuer are located in the State of Delaware, and there
are no other such locations.
(q) All tax returns or extensions required to be filed by the Issuer
in any jurisdiction (other than jurisdictions in which the failure to file
would not have a material adverse effect on the Issuer, the Issuer's
ability to perform its obligations under the Transaction Documents, any
Noteholder or any Receivable or any other part of the Trust Estate) have
in fact been filed, and all taxes, assessments, fees and other
governmental charges upon the Issuer, or upon any of the properties,
income or franchises shown to be due and payable on such returns have
been, or will be, paid or are being contested in good faith by appropriate
proceedings with respect to which the Agent has received written notice.
To the knowledge of the Issuer, all such tax returns are true and correct
and the Issuer has no knowledge of any proposed additional tax assessment
against it in any material amount nor of any basis therefor.
(r) All information heretofore furnished by the Issuer for purposes
of or in connection with any of the Transaction Documents or any
transaction contemplated
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hereby or thereby is, and all such information hereafter furnished by the
Issuer will be, true and accurate in every material respect on the date
such information is stated or certified and does not and will not contain
any material misstatement of fact or omit to state a material fact or any
fact necessary to make the statements contained therein not misleading.
(s) Since March 31, 2005, no event has occurred that would have a
material adverse effect on (i) the financial condition or operations of
Issuer, (ii) the ability of Issuer to perform its obligations under the
Transaction Documents, or (iii) the collectibility of the Receivables
generally or any material portion of the Receivables.
(t) The Issuer has complied in all respects with all applicable
laws, rules, regulations, orders, writs, judgments, injunctions, decrees
or awards to which it may be subject, except where the failure to so
comply could not reasonably be expected to have a material adverse effect
on the Issuer, any Noteholder, any Receivable or other part of the Trust
Estate.
Section 3.13. Representations and Warranties of the Indenture Trustee. The
Indenture Trustee hereby represents and warrants to the Noteholders that as of
the Closing Date and each Funding Date:
(a) The Indenture Trustee has been duly organized and is validly
existing as a national banking association under the laws of the United
States;
(b) The Indenture Trustee has full power and authority and legal
right to execute, deliver and perform its obligations under this
Indenture, the Sale and Servicing Agreement and each other Transaction
Document to which it is a party and has taken all necessary action to
authorize the execution, delivery and performance by it of this Indenture,
the Sale and Servicing Agreement and each other Transaction Document to
which it is a party;
(c) This Indenture, the Sale and Servicing Agreement and each other
Transaction Document to which it is a party have been duly executed and
delivered by the Indenture Trustee and constitute the legal, valid, and
binding obligations of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with their respective terms, except as
such enforceability may be limited by applicable bankruptcy,
reorganization, insolvency, liquidation, moratorium, fraudulent
conveyance, or similar laws affecting creditors' or creditors of banks'
rights and/or remedies generally or by general principles of equity
(regardless of whether such enforcement is sought in a proceeding in
equity or at law);
(d) The execution, delivery and performance this Indenture, the Sale
and Servicing Agreement and each other Transaction Document to which it is
a party by the Indenture Trustee will not constitute a violation with
respect to any order or decree of any court or any order, regulation or
demand of any federal, State, municipal or governmental agency binding on
the Indenture Trustee, which violation might have consequences that
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would materially and adversely affect the performance of its duties under
this Indenture; and
(e) The execution, delivery and performance of this Indenture, the
Sale and Servicing Agreement and each other Transaction Document to which
it is a party by the Indenture Trustee do not require any approval or
consent of any Person, do not conflict with the articles of incorporation
or bylaws of the Indenture Trustee.
Section 3.14. Performance of Obligation. (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 in any Transaction Document or under any instrument or
agreement included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
ordered by any bankruptcy or other court or as expressly provided in this
Indenture, the Transaction Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons acceptable to the Majority
Holders 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.
(c) The Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture, the Transaction Documents and in the
instruments and agreements included in the Trust Estate, including, but not
limited to, preparing (or causing to be prepared) and filing (or causing to be
filed) all UCC financing statements and continuation statements required to be
filed by the terms of this Indenture and the other Transaction Documents in
accordance with and within the time periods provided for herein and therein.
Except as otherwise expressly provided therein, the Issuer shall not waive,
amend, modify, supplement or terminate any Transaction Document or any provision
thereof without the consent of the Majority Holders.
(d) If an Event of Default, Servicer Event of Default or a Termination
Event shall arise from the failure of the Servicer to perform any of its duties
or obligations under the Sale and Servicing Agreement with respect to the
Receivables, the Issuer shall take all reasonable steps available to it to
remedy such failure.
(e) The Issuer agrees that it will not waive timely performance or
observance by the Servicer, the Contributor or the Depositor of their respective
duties under the Transaction Documents, without the prior written consent of the
Majority Holders and each Noteholder that may be adversely affected thereby.
(f) If the adoption after the date hereof of any applicable law, rule or
regulation (including any applicable law, rule or regulation regarding capital
adequacy), any accounting principles, or any change in any of the foregoing, or
any change in the interpretation or administration thereof by any governmental
authority charged with the interpretation or administration thereof, or by the
Financial Accounting Standards Board ("FASB"), or
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compliance by any Noteholder with any request or directive (whether or not
having the force of law) after the date hereof of any such governmental
authority or FASB (a) subjects such Noteholder to any charge or withholding on
or in connection with this Note, the Note Purchase Agreement, the Liquidity
Agreement, the Indenture, or any other Transaction Document (collectively, the
"Funding Documents") or any amounts outstanding hereunder or thereunder, (b)
changes the basis of taxation of payments to such Noteholder of any amounts
payable under any of the Funding Documents (except for changes in the rate of
tax on the overall net income of the Noteholder), (c) imposes, modifies or deems
applicable any reserve, assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account of, or any
credit extended by, such Noteholder, (d) has the effect of reducing the rate of
return on such Noteholder's capital to a level below that which such Noteholder
could have achieved but for such adoption, change or compliance (taking into
consideration the Noteholder's policies concerning capital adequacy) or (e)
imposes any other condition, and the result of any of the foregoing is (i) to
impose a cost on, or increase the cost to, such Noteholder of its commitment
under any Funding Document or of purchasing, maintaining or funding any interest
acquired under any Funding Document, or (ii) to reduce the amount of any sum
received or receivable by, or to reduce the rate of return of, such Noteholder
under any Funding Document (collectively, the "Increased Costs"), then, upon
demand by such Noteholder with written notice to the Indenture Trustee of the
amount claimed hereunder, the Issuer promises to pay to such Noteholder such
additional amounts as will compensate such Noteholder for such increased cost or
reduction. Without limiting the foregoing, the Issuer acknowledges and agrees
that the fees and other amounts payable by the Issuer to the Noteholders have
been negotiated on the basis that the unused portion of the Noteholders'
commitments under the Note Purchase Agreement and Liquidity Agreement are
treated as "short term commitments" for which there is no regulatory capital
requirement. If any Noteholder determines it is required to maintain capital
against its unused commitment, such Noteholder shall be entitled to compensation
hereunder. Further, for the avoidance of doubt, if the issuance of FASB
Interpretation No. 46, or any other change in accounting standards or the
issuance of any other pronouncement, release or interpretation, causes or
requires the consolidation of all or a portion of the assets and liabilities of
the Issuer or the Initial Purchasers with the assets and liabilities of JPMorgan
Chase Bank, N.A. or any Financial Institution, such event shall constitute a
circumstance on which such JPMorgan Chase Bank, N.A. or such Financial
Institution may base a claim for reimbursement under this Section.
Section 3.15. Hedge Agreement Provisions.
(a) No later than June 30, 2005, the Issuer shall enter into, and shall at
all times thereafter, until the Termination Date, maintain in effect, one or
more Hedge Agreements with an aggregate notional amount (measured as of the last
Business Day of each month) not less than the Note Principal Balance, each
executed by an Eligible Hedge Counterparty, relating to the Notes and containing
such terms and conditions as are required by the Majority Holders. It is
expressly understood that the following shall be deemed by the Majority Holders
to be an acceptable hedging arrangement:
(a) The Interest Rate Hedge Cap Strike Price for each Hedge
Agreement that is an interest rate cap agreement will be equal to: (A) the
weighted average APR of the
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Eligible Receivables as of the last day of the prior Collection Period
less (B) the sum of (x) the Program Fee Rate, (y) the Servicing Fee Rate
and (z) 1.00%.
(b) With respect to any Hedge Agreement, the notional amount under
such Hedge Agreement may be stepped down on a schedule resulting from the
use of an ABS Speed not greater than 1.0 with respect to the Receivables,
which schedule shall be reasonably acceptable to the Agent.
(c) Whenever the aggregate notional amount of the Hedge Agreements
may be reduced as a result of a reduction in the Note Principal Amount,
the notional amounts under Hedge Agreements shall be reduced first until
such Hedge Agreements are terminated before any notional amounts under
Hedge Agreements are reduced.
(b) The benefits of each Hedge Agreement shall be assigned to the
Indenture Trustee for the benefit of the Noteholders, the Agent and the
Financial Institutions and each such Hedge Agreement shall be included in the
Trust Estate. The Issuer shall pay all acquisition costs associated with the
Hedge Agreements. Any amounts paid under any such Hedge Agreement to or for the
benefit of the Issuer shall be deposited into the Collection Account immediately
upon receipt by the Issuer or the Servicer for application pursuant to Section
5.03(b).
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01. Sale and Servicing Agreement. (a) The Sale and Servicing
Agreement, duly executed counterparts of which have been filed with the
Indenture Trustee, sets forth the covenants and obligations of the Servicer with
respect to the Trust Estate and other matters addressed in the Sale and
Servicing Agreement, and reference is hereby made to the Sale and Servicing
Agreement for a detailed statement of said covenants and obligations of the
Servicer thereunder. The Issuer agrees that the Indenture Trustee, in its name
or (to the extent required by law) in the name of the Issuer, may (but is not,
unless so directed by the Majority Holders, required to) enforce all rights of
the Issuer under the Sale and Servicing Agreement for and on behalf of the
Noteholders whether or not the Issuer is in default hereunder.
(b) Promptly following a request from the Indenture Trustee to do so, the
Issuer shall take all such lawful action as the Indenture Trustee may request to
compel or secure the performance and observance by the Servicer of each of its
obligations to the Issuer and with respect to the Trust Estate under or in
connection with the Sale and Servicing Agreement, in accordance with the terms
thereof, and in effecting such request shall 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, without limitation, the
transmission of notices of default on the part of the Servicer thereunder and
the institution of legal or administrative actions or proceedings to compel or
secure performance by the Servicer of each of its obligations under the Sale and
Servicing Agreement.
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(c) The Issuer shall not waive any default by the Servicer under the Sale
and Servicing Agreement without the written consent of the Majority Holders.
(d) The Indenture Trustee does not assume any duty or obligation of the
Issuer under the Sale and Servicing Agreement, and the rights given to the
Indenture Trustee thereunder are subject to the provisions of Article VII
hereof.
(e) The Issuer has not and will not provide any payment instructions to
any Obligor that are inconsistent with the provisions of Section 7.01 of the
Sale and Servicing Agreement.
ARTICLE V
ACCOUNTS, COLLECTIONS, PAYMENTS OF INTEREST AND PRINCIPAL, RELEASES, SPREAD
ACCOUNT, AND STATEMENTS TO NOTEHOLDERS
Section 5.01. Accounts. (a)(i) The Indenture Trustee, on behalf of the
Noteholders, shall establish and maintain in the name of the Issuer an Eligible
Account (the "Collection Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Indenture
Trustee on behalf of the Noteholders. The Collection Account shall initially be
established with the Indenture Trustee.
(ii) The Indenture Trustee, on behalf of the Noteholders, shall establish
and maintain in the name of the Issuer an Eligible Account (the "Spread
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Indenture Trustee on behalf of the
Noteholders. The Spread Account shall initially be established with the
Indenture Trustee.
(iii) The Indenture Trustee, on behalf of the Noteholders, shall establish
and maintain in the name of the Issuer an Eligible Account (the "Pre-Funding
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Indenture Trustee on behalf of the
Noteholders, titled "Pre-Funding Account, JPMorgan Chase Bank, N.A., in trust
for the Noteholders". The Pre-Funding Account shall initially be established
with the Indenture Trustee. The Formal Transfer Requirements with respect to the
Pre-Funded Receivables must be completed within six (6) Business Days.
(b) Funds on deposit in the Accounts shall be invested by the Indenture
Trustee in Eligible Investments selected by the Servicer (pursuant to standing
instructions or otherwise) that will mature so that such funds will be available
at the close of business on the Business Day immediately preceding the next
Payment Date. All such Eligible Investments shall be held by or on behalf of the
Indenture Trustee for the benefit of the Noteholders. Other than as permitted by
the Majority Holders, funds on deposit in the Accounts shall be invested in
Eligible Investments that will mature so that such funds will be available at
the close of business on the Business Day immediately preceding the following
Payment Date. All Eligible Investments will be held to maturity.
(c) All investment earnings of moneys deposited in an Account shall be
deposited (or caused to be deposited) by the Indenture Trustee in such Account,
and any loss resulting from such investments shall be charged to such Account.
The Servicer will not direct the Indenture
56
Trustee to make any investment of any funds held in the Accounts unless the
security interest Granted and perfected in such account will continue to be
perfected in such investment, in either case without any further action by any
Person, and, in connection with any direction to the Indenture Trustee to make
any such investment, if requested by the Indenture Trustee, the Servicer shall
deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the
Indenture Trustee, to such effect.
(d) The Indenture Trustee shall not in any way be held liable by reason of
any insufficiency in the Accounts resulting from any loss on any Eligible
Investment included therein except for losses attributable to the Indenture
Trustee's gross negligence or bad faith or its failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its commercial capacity
as principal obligor and not as Indenture Trustee, in accordance with their
terms.
(e) If (i) the Servicer shall have failed to give investment directions in
writing for any funds on deposit in the Accounts to the Indenture Trustee by
3:00 p.m. New York City time (or such other time as may be agreed by the
Servicer and Indenture Trustee) on any Business Day; or (ii) a Default or Event
of Default shall have occurred and be continuing with respect to the Notes but
the Notes shall not have been declared due and payable, or, if such Notes shall
have been declared due and payable following an Event of Default, amounts
collected or receivable from the Trust Property are being applied as if there
had not been such a declaration; then the Indenture Trustee shall, to the
fullest extent practicable, invest and reinvest funds in the Accounts in the
investment described in clause (e) of the definition of Eligible Investments.
(f) (i) The Indenture Trustee shall possess all right, title and interest
in all funds on deposit from time to time in the Accounts and in all proceeds
thereof (including all investment earnings on the Accounts) and all such funds,
investments, proceeds and income shall be part of the Trust Estate. Except as
otherwise provided herein, the Accounts shall be under the control (as defined
in Section 8-106 of the UCC) of the Indenture Trustee for the benefit of the
Noteholders. If, at any time, any of the Accounts ceases to be an Eligible
Account, the Indenture Trustee (or the Servicer on its behalf) shall within five
Business Days (or such longer period as to which the Agent may consent)
establish a new Account as an Eligible Account and shall transfer any cash
and/or any investments to such new Account. In connection with the foregoing,
the Servicer agrees that, in the event that any of the Accounts are not accounts
with the Indenture Trustee, the Servicer shall notify the Indenture Trustee in
writing promptly upon any of such Accounts ceasing to be an Eligible Account.
(ii) With respect to the Account Property, the Indenture Trustee agrees
that:
(A) any Account Property that is held in deposit accounts
shall be held solely in Eligible Accounts; and, except as otherwise
provided herein, each such Eligible Account shall be subject to the
exclusive custody and control of the Indenture Trustee, and the
Indenture Trustee shall have sole signature authority with respect
thereto;
(B) any Account Property that constitutes physical property
shall be delivered to the Indenture Trustee in accordance with
paragraph (1)(a) or (1)(b),
57
as applicable, of the definition of "Delivery" and shall be held,
pending maturity or disposition, solely by the Indenture Trustee or
a securities intermediary (as such term is defined in Section
8-102(a)(14) of the UCC) acting solely for the Indenture Trustee;
(C) any Account Property that is a book-entry security held
through the Federal Reserve System pursuant to Federal book-entry
regulations shall be delivered in accordance with paragraph (1)(c)
or (1)(e), as applicable, of the definition of "Delivery" and shall
be maintained by the Indenture Trustee, pending maturity or
disposition, through continued book-entry registration of such
Account Property as described in such paragraph;
(D) any Account Property that is an "uncertificated security"
under Article 8 of the UCC and that is not governed by clause (C)
above shall be delivered to the Indenture Trustee in accordance with
paragraph (1)(d) of the definition of "Delivery" and shall be
maintained by the Indenture Trustee, pending maturity or
disposition, through continued registration of the Indenture
Trustee's (or its nominee's) ownership of such security;
(E) the Servicer shall have the power, revocable by the
Indenture Trustee, to instruct the Indenture Trustee to make
withdrawals and payments from the Accounts for the purpose of
permitting the Servicer and the Indenture Trustee to carry out their
respective duties hereunder; and
(F) any Account held by it hereunder shall be maintained as a
"securities account" as defined in the Uniform Commercial Code as in
effect in New York (the "New York UCC"), and that it shall be acting
as a "securities intermediary" for the Indenture Trustee itself as
the "entitlement holder" (as defined in Section 8-102(a)(7) of the
New York UCC) with respect to each such Account. The parties hereto
agree that each Account shall be governed by the laws of the State
of New York, and regardless of any provision in any other agreement,
the "securities intermediary's jurisdiction" (within the meaning of
Section 8-110 of the New York UCC) shall be the State of New York.
The Indenture Trustee acknowledges and agrees that (a) each item of
property (whether investment property, financial asset, security,
instrument or cash) credited to the Accounts shall be treated as a
"financial asset" within the meaning of Section 8-102(a)(9) of the
New York UCC and (b) notwithstanding anything to the contrary, if at
any time the Indenture Trustee shall receive any order from the
Servicer directing transfer or redemption of any financial asset
relating to the Accounts, the Indenture Trustee shall comply with
such entitlement order without further consent by the Issuer, the
Depositor or any other person. In the event of any conflict of any
provision of this Section 5.01(f)(ii)(F) with any other provision of
this Indenture or any other agreement or document, the provisions of
this Section 5.01(f)(ii)(F) shall prevail.
Section 5.02. Collection Account and Spread Account. (a) On or prior to the
Closing Date, the Indenture Trustee shall establish and maintain the Collection
Account as the account
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into which all amounts received by the Local Bank from or on behalf of Obligors
under the terms of the Receivables, and all other amounts required to be
deposited therein pursuant to the Transaction Documents, will be deposited
within two (2) Business Days of receipt thereof. The Indenture Trustee shall
provide or make available electronically (or upon written request, by first
class mail or facsimile) monthly statements on all amounts received in the
Collection Account to the Agent, the Issuer and the Servicer.
(b) The Servicer will be entitled to be reimbursed from amounts on deposit
in the Collection Account with respect to a Collection Period for amounts
previously deposited in the Collection Account but later determined by the
Servicer to have resulted from mistaken deposits or postings or checks returned
for insufficient funds. The amount to be reimbursed hereunder shall be paid to
the Servicer on the related Payment Date pursuant to Section 5.03(b) upon
certification by the Servicer of such amounts and the provision of such
information to the Indenture Trustee and the Agent as may be necessary in the
opinion of the Agent to verify the accuracy of such certification; provided,
however, that the Servicer must provide such certification within three months
of such mistaken deposit, posting or returned check. In the event that the Agent
has not received evidence satisfactory to it of the Servicer's entitlement to
reimbursement pursuant to this Section, the Agent shall give the Indenture
Trustee notice in writing to such effect, following receipt of which the
Indenture Trustee shall not make a distribution to the Servicer in respect of
such amount pursuant to Section 5.03, or if the Servicer prior thereto has been
reimbursed pursuant to Section 5.03, the Indenture Trustee shall withhold such
amounts from amounts otherwise distributable to the Servicer on the next
succeeding Payment Date.
(c) On or prior to the Closing Date, the Indenture Trustee shall establish
and maintain the Spread Account. On the Closing Date and on each subsequent
Funding Date, the Issuer shall make a deposit into the Spread Account sufficient
to maintain an amount equal to 1.25% of the Current Peak Aggregate Receivables
Balance on such date. Thereafter, on each Payment Date, the Indenture Trustee
shall continue to make deposits into the Spread Account until the Spread Account
equals or exceeds the Requisite Amount, as set forth in the Monthly Servicer
Report. The Indenture Trustee shall provide or make available electronically (or
upon written request, by first class mail or facsimile) monthly statements on
all amounts received in the Spread Account to the Agent, the Issuer and the
Servicer.
(d) Once the amount on deposit in the Spread Account equals or exceeds the
Requisite Amount, on the Transfer Date relating to each subsequent Payment Date,
the Indenture Trustee shall transfer to the Collection Account the amount
specified by the Servicer in the related Monthly Servicer Report representing
investment earnings on amounts held in the Spread Account as of the related
Determination Date.
(e) In the event that, after giving effect to the transfers from the
Spread Account made on any Transfer Date pursuant to Sections 5.02(d) and
5.03(a), the amount on deposit in the Spread Account on the related Payment Date
exceeds the Requisite Amount (determined after giving effect to the payments
required to be made on such Payment Date to the Noteholders of the Principal
Payment Amount pursuant to Section 5.03(b)), the Indenture Trustee shall, in
accordance with the Monthly Servicer Report, transfer to the Issuer on such
Payment Date an amount equal to such excess.
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Section 5.03. Distribution of Funds in the Collection Account. (a) On the
Transfer Date relating to each Payment Date and subject to Section 5.02(c), the
Indenture Trustee shall transfer, based on the information set forth in the
Monthly Servicer Report, the Deficiency Claim Amount, if any, from the Spread
Account into the Collection Account.
(b) On each Payment Date, the Indenture Trustee shall, based on the
information set forth in the related Monthly Servicer Report, (i) allocate funds
for payment from the Collection Account out of Monthly Available Funds in the
following manner and order of priority and (ii) on the Payment Date, apply
amounts on deposit in the Collection Account specified below in the following
manner and order of priority:
First, to reimburse unreimbursed Servicer Advances in respect of
prior Payment Dates; provided, however, that unreimbursed Servicer
Advances shall not be paid with amounts transferred from the Spread
Account pursuant to Section 5.03(a);
Second, to pay the Indenture Trustee any amounts owing to the
Indenture Trustee pursuant to Section 7.07 (including any prior unpaid
Indenture Trustee Fees, indemnities and expenses (including but not
limited to any reasonable attorney's fees and expenses of the Indenture
Trustee)); provided, however, that unless an Event of Default shall have
occurred and be continuing with the Indenture Trustee Fee payable pursuant
to this clause Second shall be limited to an aggregate amount of $10,000
per annum, together with any amounts accrued and owing under this clause
Second and not paid on a prior Payment Date;
Third, to pay each Hedge Counterparty the net amounts owing, if any,
by the Issuer under the related Hedge Agreement, other than amounts
constituting Breakage Costs.
Fourth, to pay the Servicer the amount necessary to reimburse the
Servicer for any mistaken deposits or postings or checks returned for
insufficient funds in accordance with Section 5.02(b);
Fifth, to the extent not paid by the Servicer, to pay, pro rata, to
(i) the Local Bank and (ii) the Custodian any unpaid fees and reasonable
out-of-pocket costs and expenses incurred by each of them;
Sixth, pro rata, to pay the initial Servicer and the Backup Servicer
(so long as Bay View Acceptance is acting in its role as initial
Servicer), the Servicing Fee (less the total of fees and expenses to be
paid to the Custodian, the Local Bank, and the Back-up Servicer to the
extent that such amounts have not been previously paid by the Servicer),
together with any amounts accrued and owing under this clause Sixth and
not paid on a prior Payment Date;
Seventh, to pay the Back-up Servicer, upon becoming successor
Servicer, the Servicing Fee and expenses of the Back-up Servicer permitted
under the Sale and Servicing Agreement, including any costs incurred in
connection with any required re-titling or re-xxxxxxx of the Financed
Vehicles, to the extent such costs have not been reimbursed by the
terminated Servicer, and including any boarding fees incurred by the
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Backup Servicer at the rate set forth in Schedule II to the Sale and
Servicing Agreement, together with any amounts accrued and owing under
this clause Seventh and not paid on a prior Payment Date;
Eighth, pro rata, to pay the Agent, the Noteholders, the Owner
Trustee and the Backup Servicer any indemnity amounts due and owing to
such party under the Transaction Documents; provided, however, that
indemnity amounts paid to any single claimant pursuant to this priority
Eighth shall not exceed $100,000 per annum (it being understood that all
Noteholders shall constitute a single claimant and that each indemnified
party and any Person claiming by or through such indemnified party,
including officers, directors, employees and agents of such indemnified
party, shall constitute a single claimant), together with any amounts
accrued and owing under this clause Eighth and not paid on a prior Payment
Date;
Xxxxx, to pay to the Agent, the Program Fee and the Unused Fee;
Tenth, to the Noteholders, any Broken Funding Costs and the
applicable Note Interest;
Eleventh, to the Noteholders, an amount equal to the Principal
Payment Amount;
Twelfth, to pay to the Back-up Servicer, upon the replacement of the
Servicer, any reasonable expenses of the Back-up Servicer in connection
with the transition of servicing duties, to the extent not paid pursuant
to clause Seventh, including reasonable attorneys' fees and expenses, in
each case, to the extent such costs have not been reimbursed by the
terminated Servicer, together with any amounts accrued and owing under
this clause Twelfth and not paid on a prior Payment Date;
Thirteenth, on each Payment Date prior to the end of the Funding
Period or the occurrence and continuance of a Termination Event, to
deposit into the Spread Account an amount such that the balance in the
Spread Account shall equal the Requisite Amount;
Fourteenth, to pay to the Noteholders, any Increased Costs;
Fifteenth,, on each Payment Date following the end of the Funding
Period or the occurrence and continuance of a Termination Event, to pay to
the Noteholders any remaining amounts as a payment of principal until the
Note Principal Balance of the Notes is reduced to zero;
Sixteenth, pro rata, to pay to the Agent, the Noteholders, the Owner
Trustee and the Backup Servicer, any indemnity amounts due and owing to
such parties under the Transaction Documents and not paid to it pursuant
to clause Eighth;
Seventeenth, to pay to the Hedge Counterparty any Breakage Costs due
and payable under any Hedge Agreement;
Xxxxxxxxxx, to pay to the Agent and the Noteholders any other
amounts due to the Agent and the Noteholders as expressly provided in the
Transaction Documents;
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Nineteenth, to pay any amounts due and owing to the Indenture
Trustee and not paid pursuant to clause Second; and
Twentieth, to remit any excess funds to or at the direction of the
Issuer.
Section 5.04. Note Payments. (a) The Indenture Trustee shall pay to each
Noteholder of record as of the related Record Date either (i) by wire transfer,
in immediately available funds to the account of such Noteholder at a bank or
other entity having appropriate facilities therefor, if such Noteholder shall
have provided to the Indenture Trustee appropriate written instructions at least
five (5) Business Days prior to related Payment Date (which instructions may
remain in effect for subsequent Payment Dates unless revoked by such
Noteholder), or (ii) if not, by check mailed to such Noteholder at the address
of such Noteholder appearing in the Note Register, the amounts to be paid to
such Noteholder pursuant to such Noteholder's Notes.
(b) In the event that any withholding tax is imposed on the Issuer's
payment (or allocations of income) to a Noteholder, such withholding tax shall
reduce the amount otherwise distributable to the Noteholder in accordance with
this Section. The Indenture Trustee is hereby authorized and directed to retain
from amounts otherwise distributable to the Noteholders sufficient funds for the
payment of any withholding tax that is legally owed by the Issuer as instructed
by the Servicer, in writing in a Monthly Servicer Report (but such authorization
shall not prevent the Indenture Trustee from contesting at the expense of the
Depositor any such withholding tax in appropriate proceedings, and withholding
payment of such withholding tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to a
Noteholder shall be treated as cash distributed to such Noteholder at the time
it is withheld by the Trust and remitted to the appropriate taxing authority. If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-US Noteholder), the Indenture
Trustee may in its sole discretion withhold such amounts in accordance with this
clause (b). In the event that a Noteholder wishes to apply for a refund of any
such withholding tax, the Indenture Trustee shall reasonably cooperate with such
Noteholder in making such claim so long as such Noteholder agrees to reimburse
the Indenture Trustee for any out-of-pocket expenses incurred.
(c) Each Noteholder, by its acceptance of its Note, will be deemed to have
consented to the provisions of Section 5.03(b) relating to the priority of
payments, and will be further deemed to have acknowledged that no property
rights in any amount or the proceeds of any such amount shall vest in such
Noteholder until such amounts have been distributed to such Noteholder pursuant
to such provisions; provided, that the foregoing shall not restrict the right of
any Noteholder, upon compliance with the provisions hereof, from seeking to
compel the performance of the provisions hereof by the parties hereto.
(d) For purposes of federal income, State and local income and franchise
and any other income taxes, each Noteholder, by its acceptance of its Note, will
be deemed to have agreed to, and hereby instructs the Indenture Trustee to, (i)
treat the Notes as indebtedness of the Contributor and its consolidated
subsidiaries, (ii) treat the transfer of the Receivables by the Contributor to
the Depositor pursuant to the Contribution Agreement as a contribution, (iii)
treat the Grant of the Receivables by the Issuer to the Indenture Trustee
pursuant to the Indenture as a pledge and (iv) treat the Issuer as the owner of
the Receivables.
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Section 5.05. Statements to Noteholders; Tax Returns. Within thirty (30) days
after the end of each calendar year, the Issuer shall cause the Indenture
Trustee to furnish to each Person who at any time during such calendar year was
a Noteholder of record and received any payment thereon (a) a report as to the
aggregate of amounts paid during such calendar year to each such Noteholder
allocable to principal and allocable to interest for such calendar year or
applicable portion thereof during which such Person was a Noteholder and (b)
such information required by the Code, to enable such Noteholders to prepare
their federal and State income tax returns. The obligation of the Indenture
Trustee set forth in this paragraph shall be deemed to have been satisfied to
the extent that information shall be provided by the Indenture Trustee, in the
form of Form 1099 or other comparable form, pursuant to any requirements of the
Code.
The Issuer shall cause the Servicer, at the Servicer's expense, to cause a
firm of Independent Public Accountants to prepare any tax returns required to be
filed by the Issuer. The Indenture Trustee, upon reasonable written request,
shall furnish the Issuer with all such information in the possession of the
Indenture Trustee as may be reasonably required in connection with the
preparation of all tax returns of the Issuer.
Section 5.06. Reports by Indenture Trustee. Within five (5) Business Days
after the end of each Collection Period, the Indenture Trustee shall provide or
make available electronically (or upon written request, by first class mail or
facsimile) to the Contributor, the Depositor, the Agent, each Noteholder and the
Servicer a written report setting forth the amount in the Collection Account and
the Spread Account, and the identity of the investments included therein.
Without limiting the generality of the foregoing, the Indenture Trustee shall,
upon the written request of the Contributor, the Depositor or the Agent,
promptly transmit to the Contributor, the Depositor or the Agent, as the case
may be, copies of all accountings of, and information with respect to, the
Collection Account and the Spread Account and payments thereto and therefrom.
Section 5.07. Final Balances. Upon payment of all principal and interest with
regard to the Notes, all other amounts due to the Agent and the Noteholders as
expressly provided for in the Transaction Documents (including, without
limitation, Increased Costs) and payment of all reasonable fees, charges and
other expenses, such as fees and expenses of the Indenture Trustee, all moneys
remaining in all Accounts, except moneys necessary to make payments equal to
such amounts and payments of principal and interest with respect to the Notes,
which moneys shall be held and disbursed by the Indenture Trustee pursuant to
this Article V, shall be remitted to the Issuer.
ARTICLE VI
REPAYMENT OF NOTES
Section 6.01. Optional Repayment. (a) The Notes are subject to full or
partial repayment prior to the Termination Date, at the option of the Issuer, at
any time (the "Repayment Date") upon (i) delivery to the Indenture Trustee, the
Noteholders and the Agent not less than three (3) Business Days prior to the
date fixed for repayment, of an Officer's Certificate from the Issuer stating
the Issuer's election to repay all or a portion of the Notes, (ii) the deposit
by the Issuer into the Collection Account, to the extent of any shortfall
therein, in the following order of priority, an amount equal to the sum of (A)
the Note Interest due on the outstanding principal
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balance of the Notes being repaid, (B) the principal balance of the Notes being
repaid, (C) all other amounts of the type specified in clauses First through
Seventeenth of Section 5.03(b) accrued and unpaid through the Repayment Date and
(D) an amount sufficient to pay all costs and expenses related to the repayment,
including the release of any collateral and re-xxxxxxx of any collateral. Such
repayment shall be in connection with a term securitization or whole loan sale
of the Receivables by the Issuer (or a combination thereof), or in connection
with other refinancing of the Receivables by the Issuer.
(b) In connection with any repayment which does not constitute repayment
of 100% of the then outstanding Note Principal Balance, the Receivables to be
securitized or refinanced, as the case may be, will be selected and released
from the lien hereof only so long as: (i) no selection criteria adverse to the
Noteholders shall have been used in selecting the Receivables to be securitized
or refinanced, as the case may be, and the Servicer shall have described the
selection criteria to the Agent's reasonable satisfaction, (ii) after giving
effect to the repayment, the representations set forth in Section 2.12(a)(iii)
remain true and correct, (iii) after giving effect to the repayment, the Note
Principal Balance must not exceed the Note Percentage times the Aggregate
Receivable Balance (excluding any Delinquent Receivables and Receivables that
are no longer Eligible Receivables), (iv) all remaining Receivables must be
Eligible Receivables and (v) the Servicer shall have certified the satisfaction
of each of the foregoing clauses (i) through (iv) to each of the Noteholders and
the Agent.
(c) On the Repayment Date, provided that the Indenture Trustee has
received such amounts, the Indenture Trustee shall (w) as directed by the
Servicer in writing, pay to the Noteholders the principal balance of the Notes
being repaid and the Note Interest due thereon and all other amounts due to such
Noteholders, (x) pay all other Persons the amounts specified in clauses First
through Seventeenth of Section 5.03(b) accrued and unpaid through the Repayment
Date, (y) as directed by the Servicer in writing, release any Collections being
held in the Collection Account which are attributable solely to the Receivables
being repaid to, or at the direction of, the Servicer, and (z) if such repayment
is the final repayment in full of the principal balance and all other amounts
due to the Noteholders, release any remaining assets in the Trust Estate to the
Issuer.
Section 6.02. Repayment Payments. Prior to the date fixed for repayment, any
additional funds required to pay Note Interest and to reduce the Note Principal
Balance and to pay all other amounts of the type specified in clauses First
through Seventeenth of Section 5.03(b) through the date of such repayment shall
be deposited in the Collection Account with the Indenture Trustee to pay, and
the Indenture Trustee is hereby authorized and directed to apply such funds to
the repayment of, the Notes to be so repaid, together with accrued payments of
interest thereon to the Repayment Date and all other amounts in accordance with
the payment priority provisions contained in Section 5.03(b). Upon the deposit
of funds in full for repayment and payment thereof pursuant to Section 5.04,
payments of interest on the Notes or portions thereof thus repaid shall no
longer accrue interest on and after the date fixed for such final repayment.
Section 6.03. Cancellation of Notes. After the expiration of the facility
provided for hereunder, all Notes which have been fully repaid, paid in full or
retired or received by the
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Indenture Trustee for exchange shall not be reissued but shall be canceled and
destroyed in accordance with its customary procedures.
Section 6.04. Release of Collateral. (a) The Indenture Trustee shall, on or
after the Termination Date, release any remaining portion of the Trust Estate
from the lien created by this Indenture and shall deposit in the Collection
Account any funds then on deposit in any other Account. The Indenture Trustee
shall release property from the lien created by this Indenture pursuant to this
Section only upon receipt by the Indenture Trustee and the Agent of an Issuer
Order accompanied by an Officer's Certificate and an Opinion of Counsel
described in Section 314(c)(2) of the Trust Indenture Act of 1939, as amended,
and meeting the applicable requirements of Section 10.02.
(b) The Issuer shall be entitled to obtain a release from the lien of this
Indenture for any Receivable at any time (i) after a payment by the Depositor,
the Contributor or the Issuer of the Repurchase Price of the Receivable and the
deposit of such payment into the Collection Account, or (ii) if the Servicer, in
accordance with the terms of the Transaction Documents, delivers to the
Indenture Trustee and the Agent a Request for Release in substantially the form
of Exhibit B hereto, (A) identifying the Receivables to be released, (B)
requesting the release thereof, (C) setting forth the amount deposited in the
Collection Account with respect thereto, and (D) certifying that the amount
deposited in the Collection Account (x) equals the Repurchase Price of the
Receivable, in the event a Receivable is being released from the lien of this
Indenture pursuant to (i) above or (y) equals the entire amount of Insurance
Proceeds and Recoveries received or expected to be received with respect to such
Receivable and related Financed Vehicle and is being released from the lien of
this Indenture in accordance with the terms of the Transaction Documents
pursuant to (ii) above; provided, however, the Issuer shall only be entitled to
any such release purported to be allowed pursuant to (i) or (ii) above if all
other provisions of the Transaction Documents are met.
(c) Upon satisfaction of the conditions specified in subsection (b), the
Indenture Trustee shall release from the lien of this Indenture and deliver to
or upon the order of the Issuer (or to or upon the order of the Depositor or the
Contributor if it has satisfied its obligations under Section 3.03 of the
Servicing Agreement and Section 3.03 of the Contribution Agreement with respect
to a Receivable) the Receivable and the related Custodian File. Upon the order
of the Issuer, the Indenture Trustee shall authorize a UCC financing statement
prepared by the Servicer evidencing such release. The Servicer shall file any
such authorized UCC financing statements.
(d) So long as the Indenture Trustee has neither received notice, nor has
actual knowledge, that any Default, Event of Default, Termination Event or
Servicer Event of Default shall have occurred and be continuing or shall result
from such release, the Indenture Trustee shall release its interest in certain
Receivables and collateral related thereto from time to time following its
receipt from the Servicer of a request for release in the form of Exhibit B
hereto and upon written notification from the Issuer to the Lender Group Agents
(with a copy to the Indenture Trustee) of the Issuer's request for release of
Receivables. Upon the execution and delivery of a request for release and the
satisfaction of such conditions precedent, the applicable Receivables and
collateral related thereto shall be released by the Indenture Trustee from the
lien of this Indenture. Upon such release, the Issuer shall have the power to
direct the disposition of,
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or enter into agreements relating to, its rights, title and interest in the
released Receivables including, but not limited to, a sale thereof to a third
party.
ARTICLE VII
THE INDENTURE TRUSTEE
Section 7.01. Duties of Indenture Trustee. (a) If the Indenture Trustee has
received notice pursuant to Section 7.02, or a Responsible Officer of the
Indenture Trustee shall otherwise have actual knowledge that an Event of Default
has occurred and is continuing, the Indenture Trustee shall, at the written
direction of the Majority Holders, exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in its
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the occurrence and continuance of such an Event of
Default:
(i) The Indenture Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no implied
covenants or obligations of the Indenture Trustee shall be read into this
Indenture.
(ii) In the absence of gross negligence or bad faith on its part,
the Indenture Trustee may conclusively rely, and shall be fully protected
from acting or refraining from acting, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates,
opinions, resolutions, reports, notices, requests, consents, orders,
approvals or other instruments furnished to the Indenture Trustee and
conforming to the requirements of this Indenture. The Indenture Trustee
shall, however, examine such certificates and opinions to determine
whether they conform on their face to the requirements of this Indenture
but the Indenture Trustee shall not be required to determine, confirm or
recalculate information contained in such certificates or opinions.
(c) No provision of this Indenture shall be construed to relieve the
Indenture Trustee from liability for its own grossly negligent action, its own
grossly negligent failure to act, or its own willful misconduct, except that:
(i) This paragraph does not limit the effect of subsection (b) of
this Section 7.01.
(ii) The Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Indenture
Trustee, 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 from the Noteholders in accordance with this
Indenture or for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
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(iv) Except in connection with the performance of its obligations
under Section 3.05(b) hereof, the Indenture Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or otherwise to perfect or to maintain the
perfection of any security interest in any Receivable.
(d) No provision of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur any financial or other 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 for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not assured to it. In having reasonable grounds for believing that such
repayment or indemnity is not 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 Trust Estate pursuant to Sections 7.07 and 5.03(b) hereof.
(e) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to the provisions of this Section 7.01.
(f) The provisions of subsections (a), (b), (c) and (d) of this Section
7.01 shall apply to any co-trustee or separate trustee appointed by the Issuer
and the Indenture Trustee pursuant to Section 7.13 hereof.
(g) Money held in trust by the Indenture Trustee need not be segregated
from other trust funds held by the Indenture Trustee except to the extent
required by law.
(h) The permissive right of the Indenture Trustee to take actions
enumerated in this Indenture shall not be construed as a duty, and the Indenture
Trustee shall not be answerable for other than its negligence or willful
misconduct.
(i) The Indenture Trustee shall not in any way be held liable by reason of
any insufficiency in any account held by the Indenture Trustee resulting from
any loss experienced on any Receivables.
(j) In no event shall the Indenture Trustee be required to take any action
that conflicts with any of the provisions of this Indenture or with the
Indenture Trustee's fiduciary duties or that adversely affect its rights and
immunities hereunder.
(k) Upon discovery by the Indenture Trustee of the occurrence of a
Termination Event, Default, Servicer Event of Default or Event of Default or
receipt of notice thereof, the Indenture Trustee shall provide notice thereof to
the Noteholders, the Servicer, the Agent and the Issuer. In the event the
Servicer does not make available to the Agent all reports of the Servicer and
all reports to the Noteholders, upon request of any of the Agent or one of the
Rating Agencies, the Indenture Trustee shall make available promptly after such
request, copies of such Servicer reports as are in Indenture Trustee's
possession to the Agent and the Noteholders.
(l) In no event shall the Indenture Trustee have any obligations or duties
under or have any liabilities whatsoever to Noteholders under ERISA.
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(m) With respect to all Receivables and any related part of the Trust
Estate released from the Lien of this Indenture, the Indenture Trustee shall
assign, without recourse, representation or warranty, to the appropriate Person
as directed by the Issuer, prior to the Termination Date, with the consent of
the Majority Holders, all the Indenture Trustee's right, title and interest in
and to such assets, such assignment being in the form as prepared by the
Servicer or the Issuer and acceptable to the Indenture Trustee. Such Person will
thereupon own such Receivable and related rights appurtenant thereto free of any
further obligation to the Indenture Trustee or the Noteholders with respect
thereto. The Indenture Trustee shall also execute and deliver all such other
instruments or documents as shall be reasonably requested by any such Person to
be required or appropriate to effect a valid transfer of title to a Receivable
and the related assets.
(n) The Indenture Trustee shall, upon reasonable prior notice to the
Indenture Trustee by the Agent, permit any representative of the Agent, during
the Indenture Trustee's normal business hours, to examine all books of account,
records, reports and other papers of the Indenture Trustee relating to the
Notes, to make copies and extracts therefrom and to discuss the Indenture
Trustee's affairs and actions, as such affairs and actions relate to the
Indenture Trustee's duties with respect to the Notes, with the Indenture
Trustee's officers and employees responsible for carrying out the Indenture
Trustee's duties with respect to the Notes.
(o) Promptly (but in any event within two Business Days after its receipt
thereof) the Indenture Trustee will furnish to each Noteholder and the Agent a
copy of each certificate, opinion, report, statement, notice or other
communication furnished by or on behalf of the Issuer, the Contributor, the
Depositor, the Servicer or the Custodian to the Indenture Trustee (but not to
the Noteholders or the Agent) pursuant to the Transaction Documents.
Section 7.02. Notice of Termination Event, Default, Servicer Event of Default
or Event of Default. The Indenture Trustee shall not be required to take notice
of or be deemed to have notice or knowledge of any Termination Event, Default,
Servicer Event of Default or Event of Default, unless specifically notified in
writing at the address set forth in Section 11.04 or until a Responsible Officer
of the Indenture Trustee shall have acquired actual knowledge of any Termination
Event, Default, Servicer Event of Default or Event of Default. If written notice
of the existence of a Termination Event, Default, Event of Default or Servicer
Event of Default has been delivered to a Responsible Officer of the Indenture
Trustee or a Responsible Officer of the Indenture Trustee has actual knowledge
thereof, the Indenture Trustee shall promptly mail to the Agent and each
Noteholder notice thereof, but in any event, no later than 5 days after such
knowledge or notice occurs.
Section 7.03. 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 document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officers' 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 such Officer's Certificate or Opinion of Counsel.
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(c) The Indenture Trustee shall not be liable for any action it takes or
omits to take or any action or inaction it believes in good faith to be
authorized or within its rights or powers.
(d) Except as provided in Section 7.01(b) hereof, the Indenture Trustee
shall not be bound to make any investigation into the facts of matters stated in
any reports, certificates, payment instructions, opinion, notice, order or other
paper or document unless the Indenture Trustee has actual knowledge to the
contrary.
(e) 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, but the Indenture Trustee shall
be responsible for any willful misconduct or negligence on the part of, and for
the supervision of, any such agent, attorney, custodian or nominee appointed by
it hereunder. 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
in respect of any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
Section 7.04. Not Responsible for Recitals, Issuance of Notes or Application
of Moneys as Directed. The recitals contained herein and in the Notes, except
the certificates of authentication on the Notes, shall be taken as the
statements of the Issuer, and the Indenture Trustee assumes no responsibility
for their correctness. The Indenture Trustee makes no representations with
respect to the Trust Estate or as to the validity or sufficiency of the Trust
Estate or this Indenture or of the Notes. The Indenture Trustee shall not be
accountable for the use or application by the Issuer of the proceeds of the
Notes. Subject to Section 7.01(b), the Indenture Trustee shall not be liable to
any Person for any money paid to the Issuer upon Issuer Order, Servicer
instruction or order or direction provided in a Monthly Servicer Report
contemplated by this Indenture.
Section 7.05. May Hold Notes. The Indenture Trustee or any agent of the
Issuer, in its individual or any other capacity, may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer
with the same rights it would have if it were not Indenture Trustee or other
agent.
Section 7.06. Money Held in Trust. The Indenture Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Issuer and except to the extent of income or other gain on
investments which are obligations of the Indenture Trustee.
Section 7.07. Compensation and Reimbursement. (a) The Issuer agrees:
(i) to pay the Indenture Trustee from time to time the Indenture
Trustee Fee. The Indenture Trustee's compensation shall not be limited by
any law with respect to compensation of a trustee of an express trust and
the payments to the Indenture Trustee provided by Article V hereto shall
constitute payment due with respect to the applicable fee agreement or
letter;
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(ii) to reimburse the Indenture Trustee upon request for all
reasonable expenses, disbursements and advances incurred or made by the
Indenture Trustee in accordance with any provision of this Indenture
(including, but not limited to, the reasonable compensation, expenses and
disbursements of its agents and counsel and allocable costs of in-house
counsel); provided, however, in no event shall the Issuer pay or reimburse
the Indenture Trustee or the agents or counsel, including in-house counsel
of either, for any expenses, disbursements and advances incurred or made
by the Indenture Trustee in connection with any negligent action or
inaction on the part of the Indenture Trustee;
(iii) to indemnify the Indenture Trustee and its officers,
directors, employees and agents for, and to hold them harmless against,
any loss, liability or expense incurred without negligence or bad faith on
the part of the Indenture Trustee arising out of, or in connection with,
the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim of whatever kind or nature,
regardless of its merit, demanded, asserted or claimed against the
Indenture Trustee, directly or indirectly, in connection with the exercise
or performance of any of its powers or duties hereunder, including,
without limitation all reasonable attorneys' and consultants' fees and
expenses and court costs; provided, however, that:
(A) with respect to any such claim the Indenture Trustee shall
have given the Issuer, the Contributor, the Agent and the Servicer
written notice thereof promptly after the Indenture Trustee shall
have actual knowledge thereof, provided, that failure to notify
shall not relieve the parties of their obligations hereunder;
(B) notwithstanding anything to the contrary in this Section
7.07(a)(iii), none of the Issuer, the Contributor, the Depositor or
the Servicer shall be liable for settlement of any such claim by the
Indenture Trustee entered into without the prior consent of the
Issuer, the Contributor, the Depositor or the Servicer, as the case
may be, which consent shall not be unreasonably withheld or delayed;
and
(C) the Indenture Trustee, its officers, directors, employees
and agents, as a group, shall be entitled to counsel separate from
the Issuer, the Contributor, the Depositor and the Servicer; to the
extent the Issuer's, the Contributor's, the Depositor's or the
Servicer's interests are not (in the determination of the Indenture
Trustee) adverse to the interests of the Indenture Trustee, its
officers, directors, employees or agents, the Indenture Trustee may
agree to be represented by the same counsel as the Issuer, the
Contributor, the Depositor or the Servicer.
Such payment obligations and indemnification shall survive the termination of
this Indenture and the earlier resignation or removal of the Indenture Trustee.
The Indenture Trustee's expenses are intended as expenses of administration.
(b) The Indenture Trustee shall, on each Payment Date, in accordance with
the priority of payment set forth in Section 5.03(b), deduct payment of its fees
and expenses
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hereunder from moneys in the Collection Account to the extent not otherwise paid
by the Servicer or any other Person.
(c) The Issuer agrees to assume and to pay, and to indemnify, defend and
hold harmless the Indenture Trustee and the Noteholders from any taxes which may
at any time be asserted with respect to, and as of the date of, the Grant of the
Trust Estate to the Indenture Trustee, including, without limitation, any sales,
gross receipts, general corporation, personal property, privilege or license
taxes (but with respect to the Noteholders only, not including any federal,
State or other taxes arising out of the creation or the issuance of the Notes or
payments with respect thereto) and costs, expenses and reasonable counsel fees
in defending against the same.
(d) When the Indenture Trustee incurs expenses after the occurrence of a
Default specified in Section 8.01 with respect to the Issuer, if the surviving
entity has failed to honor such obligation the expenses are intended to
constitute expenses of administration under any insolvency law or under Title 11
of the United States Code.
Section 7.08. Eligibility; Disqualification. The Indenture Trustee shall
always have a combined capital and surplus as stated in Section 7.09, and shall
always be a bank or trust company with corporate trust powers organized under
the laws of the United States or any State thereof which is a member of the
Federal Reserve System and shall be rated at least "Aa2" by Xxxxx'x and "A+" by
S&P. Except as set forth in Section 7.10(d)(ii), each successor Indenture
Trustee must be approved in writing by the Majority Holders.
Section 7.09. Indenture Trustee's Capital and Surplus. The Indenture Trustee
and/or its parent shall at all times have a combined capital and surplus of at
least $100,000,000. If the Indenture Trustee publishes annual reports of
condition of the type described in Section 310(a)(2) of the Trust Indenture Act
of 1939, as amended, its combined capital and surplus for purposes of this
Section 7.09 shall be as set forth in the latest such report.
Section 7.10. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Indenture Trustee and no appointment of a
successor Indenture Trustee pursuant to this Section 7.10 shall become effective
until the acceptance of appointment by the successor Indenture Trustee under
Section 7.11.
(b) The Indenture Trustee may resign at any time by giving written notice
thereof to the Issuer, the Servicer, the Agent and each Noteholder. If an
instrument of acceptance by a successor Indenture Trustee, which Indenture
Trustee shall be acceptable to the Majority Holders, shall not have been
delivered to the Indenture Trustee within thirty (30) days after the giving of
such notice of resignation, the resigning Indenture Trustee may petition any
court of competent jurisdiction for the appointment of a successor Indenture
Trustee.
(c) The Indenture Trustee may be removed at any time by the Majority
Holders upon 30 days' prior written notice, delivered to the Indenture Trustee,
with copies to the Servicer, the Issuer, the Agent and each Noteholder.
(d) (i) If at any time the Indenture Trustee shall cease to be eligible
under Section 7.08 or 7.09 or shall become incapable of acting or shall be
adjudged bankrupt or
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insolvent, or a receiver of the Indenture Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Indenture
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (x) the Issuer with the
prior written consent of the Majority Holders, by an Issuer Order, or (y) the
Majority Holders may remove the Indenture Trustee.
(ii) If the Indenture Trustee shall be removed pursuant to Sections
7.10(c) or (d) and no successor Indenture Trustee acceptable to the Majority
Holders shall have been appointed pursuant to paragraph (e) below and accepted
such appointment within thirty (30) days of the date of removal, the removed
Indenture Trustee may petition any court of competent jurisdiction for
appointment of a successor Indenture Trustee acceptable to the Majority Holders.
(e) If the Indenture Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Indenture Trustee
for any cause, (i) the Issuer, with the prior written consent of the Majority
Holders, by an Issuer Order or (ii) the Majority Holders shall promptly appoint
a successor Indenture Trustee.
(f) The Issuer shall give to the Agent and the Noteholders notice of each
resignation and each removal of the Indenture Trustee and each appointment of a
successor Indenture Trustee. Each notice shall include the name of the successor
Indenture Trustee and the address of its Corporate Trust Office.
(g) The provisions of this Section 7.10 shall apply to any co-trustee or
separate trustee appointed by the Issuer and the Indenture Trustee with the
consent of the Majority Holders pursuant to Section 7.13 hereof.
Section 7.11. Acceptance of Appointment by Successor. (a) Every successor
Indenture Trustee appointed hereunder shall execute, acknowledge and deliver to
the Issuer and the retiring Indenture Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Indenture
Trustee shall become effective and such successor Indenture Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Indenture Trustee. Notwithstanding the
foregoing, on request of the Issuer or the successor Indenture Trustee, such
retiring Indenture Trustee shall, upon payment of its fees, expenses and other
charges, execute and deliver an instrument transferring to such successor
Indenture Trustee all the rights, powers and trusts of the retiring Indenture
Trustee and shall duly assign, transfer and deliver to such successor Indenture
Trustee all property and money held by such retiring Indenture Trustee
hereunder. Upon request of any such successor Indenture Trustee, the Issuer
shall execute and deliver any and all instruments for more fully and certainly
vesting in and confirming to such successor Indenture Trustee all such rights,
powers and trusts.
(b) No successor Indenture Trustee shall accept its appointment unless at
the time of such acceptance such successor Indenture Trustee shall be qualified
and eligible under Sections 7.08 and 7.09.
(c) Notwithstanding the replacement of the Indenture Trustee, the
obligations of the Issuer pursuant to Section 7.07 shall continue for the
benefit of the retiring Indenture Trustee.
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Section 7.12. Merger, Conversion, Consolidation or Succession to Business of
Indenture Trustee. Any corporation or national banking association into which
the Indenture Trustee may be merged or converted or with which it may be
consolidated, or any corporation, bank, trust company or national banking
association resulting from any merger, conversion or consolidation to which the
Indenture Trustee shall be a party, or any corporation, bank, trust company or
national banking association succeeding to all or substantially all of the
corporate trust business of the Indenture Trustee, shall be the successor of the
Indenture Trustee hereunder if such corporation, bank, trust company or national
banking association shall be otherwise qualified and eligible under Sections
7.08 and 7.09 hereof, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. The Indenture Trustee
shall provide the Agent prior written notice of any such transaction. In case
any Notes have been authenticated, but not delivered, by the Indenture Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Indenture Trustee may adopt such authentication and deliver the
Notes so authenticated with the same effect as if such successor Indenture
Trustee had authenticated such Notes.
Section 7.13. Co-trustees and Separate Indenture Trustees. (a) At any time or
times, for the purpose of meeting the legal requirements of any jurisdiction in
which any of the Trust Estate may at the time be located, the Issuer and the
Indenture Trustee shall have power to appoint, with the prior written consent of
the Majority Holders (and, upon the written request of the Indenture Trustee,
the Issuer shall for such purpose join with the Indenture Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to appoint) one or more Persons approved by the Indenture Trustee
either to act as co-trustee, jointly with the Indenture Trustee, of all or any
part of the Trust Estate, or to act as separate trustee of any such property, in
either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section 7.13. If the Issuer does not join in such
appointment within fifteen (15) days after the receipt by it of a request so to
do, or in case an Event of Default has occurred and is continuing, the Indenture
Trustee alone with the prior written consent of the Majority Holders shall have
power to make such appointment.
(b) Should any written instrument from the Issuer be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Issuer.
(c) Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms:
(i) The Notes shall be authenticated and delivered and all rights,
powers, duties and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Indenture Trustee hereunder, shall be
exercised solely by the Indenture Trustee.
(ii) The rights, powers, duties and obligations hereby conferred or
imposed upon the Indenture Trustee in respect of any property covered by
such appointment shall
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be conferred or imposed upon and exercised or performed by the Indenture
Trustee or by the Indenture Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of
any jurisdiction in which any particular act is to be performed, the
Indenture Trustee shall be incompetent or unqualified to perform such act,
in which event such rights, powers, duties and obligations shall be
exercised and performed solely by such co-trustee or separate trustee.
(iii) The Indenture Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Issuer evidenced by an Issuer
Order, may accept the resignation of, or remove, any co-trustee or
separate trustee appointed under this Section 7.13, and, in case an Event
of Default has occurred and is continuing, the Indenture Trustee shall
have power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Issuer. Upon the written
request of the Indenture Trustee, the Issuer shall join with the Indenture
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or removal.
A successor to any co-trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section 7.13.
(iv) No co-trustee or separate trustee hereunder shall be
financially or otherwise liable by reason of any act or omission of the
Indenture Trustee, or any other such trustee hereunder, and the Indenture
Trustee shall not be financially or otherwise liable by reason of any act
or omission of any co-trustee or other such separate trustee hereunder.
(v) Any Act of Noteholders delivered to the Indenture Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
Section 7.14. Books and Records. The Indenture Trustee agrees to provide to
the Noteholders and the Agent the right during normal business hours upon prior
reasonable notice in writing to inspect its books and records insofar as the
books and records relate to the functions and duties of the Indenture Trustee
pursuant to this Indenture.
Section 7.15. Control. Upon the Indenture Trustee being adequately
indemnified in writing to its satisfaction, the Majority Holders shall have the
right to direct the Indenture Trustee with respect to any action or inaction by
the Indenture Trustee hereunder, the exercise of any trust or power conferred on
the Indenture Trustee, or the conduct of any proceeding for any remedy available
to the Indenture Trustee with respect to the Notes or the Trust Estate provided
that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture or expose the Indenture Trustee to financial or other
liability (for which it has not been adequately indemnified) or be unduly
prejudicial to the Noteholders not approving such direction including, but
not limited to and without intending to narrow the scope of this
limitation, direction to the Indenture Trustee to act or omit to act,
directly or
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indirectly, to amend, hypothecate, subordinate, terminate or discharge any
Lien benefiting the Noteholders in the Trust Estate;
(b) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee which is not inconsistent with such direction; and
(c) except as expressly provided otherwise herein (but only with the
consent of or at the direction of the Majority Holders), the Indenture
Trustee shall have the authority to take any enforcement action which it
reasonably deems to be necessary to enforce the provisions of this
Indenture.
Section 7.16. Suits for Enforcement. If an Event of Default shall occur and
be continuing, the Indenture Trustee shall, at the direction of the Majority
Holders and upon receipt of an Opinion of Counsel, if it so chooses, proceed to
protect and enforce its rights and the rights of any Noteholders under this
Indenture by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained in
this Indenture or in aid of the execution of any power granted in this Indenture
or for the enforcement of any other legal, equitable or other remedy as the
Indenture Trustee, being advised by counsel, shall deem most effectual to
protect and enforce any of the rights of the Indenture Trustee or any
Noteholders, but in no event shall the Indenture Trustee be liable for any
failure to act in the absence of direction from the Majority Holders.
ARTICLE VIII
EVENT OF DEFAULT
Section 8.01. Events of Default. The occurrence of any of the following
events shall constitute an "Event of Default" hereunder:
(a) default in the payment of any interest on the Notes when the
same becomes due and payable;
(b) default in the payment of the principal of or any installment of
the principal of the Notes on the Maturity Date; or the failure of the
Issuer or the Servicer to make any other payment, deposit or transfer
required hereunder within two (2) Business Days of its due date;
(c) the Issuer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, marshaling of assets and
liabilities or similar proceedings or relating to the Issuer or relating
to all or substantially all of the property of the Issuer, or a decree or
order of a court or agency or supervisory authority having jurisdiction in
the premises for the appointment of a conservator or receiver or
liquidator in any insolvency, marshaling of assets and liabilities or
similar proceedings shall have been entered against the Issuer; or the
Issuer shall admit in writing its inability to pay all or substantially
all of its debts generally as they become due, file (or have filed against
it) a petition to take advantage of any applicable insolvency, bankruptcy
or reorganization statute or make an assignment of all or substantially
all of its property for the benefit of its creditors;
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(d) (i) failure to observe or perform any covenant or obligation of
the Issuer set forth in this Indenture (other than the failure to make any
required payment with respect to the Notes), which has not been cured
within twenty (20) days from the date of receipt by the Issuer of written
notice from the Indenture Trustee of such breach or default, or (ii) the
failure of the Issuer to deposit into the Collection Account all amounts
required to be deposited therein by the required deposit date;
(e) any representation, warranty or statement of the Issuer (other
than certain representations and warranties with respect to the
eligibility of the Receivables) contained in this Indenture, the Sale and
Servicing Agreement or any report, document or certificate delivered by
the Issuer pursuant to the foregoing agreements shall prove to be
incorrect in any material respect as of the time when the same shall have
been made and, the circumstances or condition in respect of which such
representation, warranty or statement was incorrect shall not have been
eliminated or otherwise cured within thirty (30) days after written notice
thereof shall have been given to the Indenture Trustee and the defaulting
party by the Servicer, the Indenture Trustee, the Agent or the Majority
Holders;
(f) the cessation of a valid perfected first priority security
interest in the Receivables (the aggregate outstanding balance of which is
in excess of $100,000) or the Accounts in favor of the Indenture Trustee
which is not cured within three (3) days of receipt of notice thereof;
(g) any of the Issuer, the Contributor or the Depositor shall become
an "investment company" within the meaning of the Investment Company Act;
and
(h) any Termination Event specified in clause (a), (c), (d), (f),
(g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q), (r), (s), (u), (v)
or (w) of the definition thereof.
then in the case of any event described in the foregoing subparagraphs, after
the applicable grace period set forth in such subparagraphs, if any, the
Indenture Trustee shall give written notice of the occurrence of an Event of
Default to the Agent and the Noteholders, and the Indenture Trustee, at the
direction of the Majority Holders, shall then give notice in writing to the
Contributor, the Depositor, the Backup Servicer and the Issuer that an Event of
Default has occurred as of the date of such notice. The Issuer is required to
give the Indenture Trustee and the Agent written notice of the occurrence of any
Event of Default immediately after actual knowledge thereof.
Section 8.02. Actions of Indenture Trustee. If an Event of Default shall
occur and be continuing, the Indenture Trustee shall, at the direction of the
Supermajority Holders, in addition to taking those actions set forth elsewhere
in Article VIII hereof, do one or more of the following:
(a) declare the entire unpaid principal amount of the Notes, all
interest accrued and unpaid thereon, interest from the date of the Event
of Default, at the Default Rate and all other amounts payable under this
Indenture and the other Transaction Documents to become immediately due
and payable;
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(b) take possession of and sell the Trust Estate;
(c) institute proceedings for collection of amounts due on the Notes
or under this Indenture by automatic acceleration or otherwise, or if no
such acceleration or collection efforts have been made, or if such
acceleration or collection efforts have been made, but have been annulled
or rescinded, the Indenture Trustee may elect to take possession of the
Trust Estate and collect or cause the collection of the proceeds thereof
and apply such proceeds in accordance with the applicable provisions of
the Indenture;
(d) enforce any judgment obtained and collect any amounts adjudged
from the Issuer;
(e) institute any proceedings for the complete or partial
foreclosure of the lien created by the Indenture with respect to the Trust
Estate; and
(f) protect the rights of the Indenture Trustee and the Noteholders
by taking any appropriate action including exercising any remedy of a
secured party under the UCC or any other applicable law.
Section 8.03. Indenture Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, composition or other judicial proceeding relative
to the Issuer or any other obligor upon the Notes or the property of the Issuer
or of such other obligor or their creditors, the Indenture Trustee (irrespective
of whether the 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 on the Issuer for the payment of overdue principal or any
interest or other amounts) shall, at the written direction of the Majority
Holders, by intervention in such proceeding or otherwise,
(a) file and prove a claim for the whole amount owing and unpaid in
respect of the Notes issued hereunder 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 the reasonable
compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel) and of the Noteholders allowed in such
proceeding, and
(b) collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, or sequestrator (or other
similar official) in any such proceeding is hereby authorized by each Noteholder
to make such payments to the Indenture Trustee and, in the event that the
Indenture Trustee shall consent to the making of such payments directly to the
Noteholders, to pay to the Indenture Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel, and any other amounts due the Indenture Trustee
under Section 7.07.
Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize and consent to or accept or adopt on behalf of any
Noteholder any plan of reorganization,
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arrangement, adjustment, or composition affecting any of the Notes or the rights
of any Noteholder thereof, or to authorize the Indenture Trustee to vote in
respect of the claim of any Noteholder in any such proceeding.
Section 8.04. Indenture Trustee May Enforce Claim Without Possession of
Notes. All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Indenture Trustee, with the prior written consent
of the Majority Holders or at the direction of the Majority Holders, without the
possession of any of the Notes or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Indenture Trustee
shall be brought in its own name as trustee for the benefit of the Noteholders,
and any recovery of judgment shall be applied first, to the payment of the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel and any other amounts due the Indenture Trustee
under Section 7.07 (provided that, any indemnification by the Issuer under
Section 7.07 shall be paid only in the priority set forth in Section 5.03(b))
hereof, second, to the Back-up Servicer, if any, for any fees and expenses due
to the Back-up Servicer under the Transaction Documents, third, to the Agent,
for any fees and expenses due to the Agent hereunder, fourth, for the ratable
benefit of the Noteholders for all amounts due to such Noteholders, and fifth,
to the Issuer.
Section 8.05. Knowledge of Indenture Trustee. Any references herein to the
knowledge, discovery or learning of the Indenture Trustee shall mean and refer
to a Responsible Officer of the Indenture Trustee.
Section 8.06. Limitation on 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 Holders shall have made written request to the
Indenture Trustee to institute Proceedings 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 compliance with such request;
(d) the Indenture Trustee for 30 days after its receipt of such
notice, request and offer of security or indemnity has failed to institute
any such Proceedings; and
(e) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 30-day period by the Majority
Holders;
it being understood and intended that no one or more Noteholders 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
Noteholders, or to obtain or to seek to obtain priority or
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preference over any other Holders or to enforce any right under this Indenture,
except in the manner herein provided.
Section 8.07. Unconditional Right of Noteholders to Receive Principal and
Interest. The Noteholders shall have the right, which is absolute and
unconditional, subject to the express terms of this Indenture, to receive
payment of principal and interest on such Notes, subject to the respective
relative priorities provided for in this Indenture, as such principal and
interest becomes due and payable from the Trust Estate and to institute
Proceedings for the enforcement of any such payment, and such right shall not be
impaired except as expressly permitted herein without the consent of such
Holders.
Section 8.08. Restoration of Rights and Remedies. If the Indenture Trustee or
any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Indenture Trustee or to such
Noteholder, then, and in every 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 8.09. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes in the last paragraph of Section 2.08 hereof, 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 8.10. Delay or Omission; Not Waiver. No delay or omission of the
Indenture Trustee or of any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or any acquiescence therein.
Every right and remedy given by this Article VIII 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 8.11. Control by Noteholders. The Majority Holders shall have the
right to direct the time, method and place of conducting any Proceeding for any
remedy available to the Indenture Trustee 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 including, without limitation, any provision hereof
which expressly provides for approval by a greater percentage of the
aggregate principal amount of all Outstanding Notes;
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(b) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee which is not inconsistent with such direction;
provided, however, that, subject to Section 7.01 hereof, the Indenture
Trustee need not take any action which a Responsible Officer or Officers
of the Indenture Trustee in good faith determines might involve it in
personal liability (unless the Indenture Trustee is furnished with the
reasonable indemnity referred to in Section 8.11(c) below); and
(c) the Indenture Trustee has been furnished reasonable indemnity
against costs, expenses and liabilities which it might incur in connection
therewith.
Section 8.12. Waiver of Certain Events by Less than All Noteholders. The
Supermajority Holders may, on behalf of the Holders of all the Notes, waive any
past Termination Event, Default, Event of Default or Servicer Event of Default
hereunder, and its consequences, except:
(a) a Default in the payment of the principal of or interest on any
Note, or a Default caused by the Issuer becoming an "investment company"
under the Investment Company Act of 1940, as amended, or
(b) in respect of a covenant or provision hereof which under Article
IX hereof cannot be modified or amended without the consent of the Holder
of each Outstanding Note affected.
Upon any such waiver, such Termination Event, Default, Event of Default or
Servicer Event of Default shall cease to exist, and any Termination Event,
Default, Event of Default or Servicer Event of Default or other consequence
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other
Termination Event, Default, Event of Default or Servicer Event of Default or
impair any right consequent thereon.
Section 8.13. Undertaking for Costs. All parties to this Indenture agree, and
each Holder of any Note by its 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 8.13 shall not apply to any suit instituted by the
Indenture Trustee or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of or interest on any Note on or
after the Maturity Date expressed in such Note.
Section 8.14. Waiver of Stay or Extension Laws. The Issuer covenants (to the
extent that it may lawfully do so) that it will not, at any time, insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby
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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 8.15. Sale of Trust Estate. (a) The power to effect any sale of any
portion of the Trust Estate pursuant to this Article VIII shall not be exhausted
by any one or more sales as to any portion of the Trust Estate remaining unsold,
but shall continue unimpaired until the entire Trust Estate securing the Notes
shall have been sold or all amounts payable on the Notes and under this
Indenture with respect thereto shall have been paid. The Indenture Trustee may
from time to time postpone any sale by public announcement made at the time and
place of such sale.
(b) The Indenture Trustee shall not, in any private sale, sell to a third
party the Trust Estate, or any portion thereof unless the Majority Holders
direct the Indenture Trustee to make such sale; provided, however, that either
(x) such sale does not result in any Note receiving less than all of its
outstanding principal, accrued interest to the date of such sale and all other
amounts due and owing to the related Noteholders as of the date of such sale,
and the Indenture Trustee and the Backup Servicer receive all amounts owed them
or (y) 100% of the Holders have consented to such sale.
(c) The Indenture Trustee or any Noteholder may bid for and acquire any
portion of the Trust Estate in connection with a public or private sale thereof,
and in lieu of paying cash therefor, any Noteholder may make settlement for the
purchase price by crediting against amounts owing on the Notes of such Holder or
other amounts owing to such Holder secured by this Indenture, that portion of
the net proceeds of such sale to which such Holder would be entitled, after
deducting the reasonable costs, charges and expenses incurred by the Indenture
Trustee or the Noteholders in connection with such sale. The Notes need not be
produced in order to complete any such sale, or in order for the net proceeds of
such sale to be credited against the Notes. The Indenture Trustee or the
Noteholders may hold, lease, operate, manage or otherwise deal with any property
so acquired in any manner permitted by law.
(d) The Indenture Trustee shall execute and deliver an appropriate
instrument of conveyance transferring its interest in any portion of the Trust
Estate in connection with a sale thereof. In addition, the Indenture Trustee is
hereby irrevocably appointed the agent and attorney-in-fact of the Issuer to
transfer and convey its interest in any portion of the Trust Estate in
connection with a sale thereof, and to take all action necessary to effect such
sale. No purchaser or transferee at such a sale 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.
(e) The method, manner, time, place and terms of any sale of all or any
portion of the Trust Estate shall be commercially reasonable.
Section 8.16. 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
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levy of any execution under such judgment upon any portion of the Trust Estate
or upon any of the assets of the Issuer.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Noteholder Approval. (a) With
prior written notice to the Agent and the Noteholders, 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 amendments or indentures supplemental
hereto, in form satisfactory to the Indenture Trustee, for any of the following
purposes:
(i) to correct, amplify or add to 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 of another Person to either the
Issuer or the Indenture Trustee in accordance with the terms hereof, and
the assumption by any such successor of the covenants of the Issuer or the
Indenture Trustee contained herein and in the Notes;
(iii) to add to the covenants of the Issuer or the Indenture
Trustee, for the benefit of the Noteholders or to surrender any right or
power herein conferred upon the Issuer; or
(iv) to effect any matter specified in Section 9.06 hereof.
(b) Promptly after the execution by the Issuer and the Indenture Trustee
of any amendment or supplemental indenture pursuant to this Section 9.01, the
Indenture Trustee shall mail to the Noteholders and the Agent a copy of such
supplemental indenture. Any failure of the Indenture Trustee to mail such copy
shall not, however, in any way impair or affect the validity of any such
amendment or supplemental indenture.
Section 9.02. Supplemental Indentures with Consent of Noteholders. (a) With
the prior written consent of each Noteholder affected thereby, the Issuer and
the Indenture Trustee, when authorized by an Issuer Order, may enter into an
amendment or a supplemental indenture for the purpose of adding any provisions
to, or changing in any manner or eliminating any of the provisions of, the
Indenture or of modifying in any manner the rights of the Noteholders under the
Indenture for the following purposes:
(i) change the Maturity Date of the principal of any Note, or the
due date of any payment of interest on any Note, or reduce the principal
amount thereof, or the interest rate thereon, change the place of payment
where, or the coin or currency in which any Note or any interest thereon
is payable, or impair the right to institute suit for the enforcement of
the payment of interest due on any Note on or after the due date thereof
or for the enforcement of the payment of the entire remaining unpaid
principal amount of
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any Note on or after the Maturity Date thereof or change any provision of
Article VI hereof;
(ii) reduce the percentage of the principal balance of the
Outstanding Notes, the consent of the Noteholders of which is required to
approve any such supplemental indenture; or the consent of the Noteholders
of which is required for any waiver of compliance with provisions of the
Indenture or Termination Events or Events of Default or Servicer Events of
Default under this Indenture or under the Sale and Servicing Agreement and
their consequences provided for in this Indenture or for any other purpose
hereunder;
(iii) modify any of the provisions of this Section 9.02;
(iv) modify or alter the provisions of the proviso to the definition
of the term "Outstanding"; or
(v) permit the creation of any other Lien with respect to any part
of the Trust Estate or terminate the Lien of this Indenture on any
property at any time subject hereto or, except with respect to any action
which would not have a material adverse effect on any Noteholder (as
evidenced by an Opinion of Counsel to such effect), deprive the Noteholder
of the security afforded by the lien of this Indenture.
(b) With the prior written consent of the Noteholders constituting
Supermajority Holders, the Issuer and the Indenture Trustee, when authorized by
an Issuer Order, may enter into an amendment or a supplemental indenture for the
purpose of (i) modifying the definition of "Termination Event", any provision of
Section 8.01 hereof or (ii) waiving the existence of any Termination Event or
Event of Default.
(c) With the consent of the Majority Holders, 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 amendments or indentures supplemental hereto, in form
and substance satisfactory to the Indenture Trustee for the purpose of
modifying, eliminating or adding to the provisions of this Indenture; provided,
that such supplemental indentures shall not have any of the effects described in
paragraphs (i) through (v) of Section 9.02(a) or Section 9.02(b) of this
Indenture; provided, further, that such action shall not adversely affect the
interests of any Noteholder (without the prior written consent of such
Noteholder).
(d) Promptly after the execution by the Issuer and the Indenture Trustee
of any amendment or supplemental indenture pursuant to this Section 9.02, the
Indenture Trustee shall mail to the Noteholders and the Agent a copy of such
supplemental indenture. Any failure of the Indenture Trustee to mail such copy
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
(e) Whenever the Issuer or the Indenture Trustee solicits a consent to any
amendment or supplement to the Indenture, the Issuer shall fix a record date in
advance of the solicitation of such consent for the purpose of determining the
Noteholders entitled to consent to such amendment or supplement. Only those
Noteholders at such record date shall be entitled to
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consent to such amendment or supplement whether or not such Noteholders continue
to be Holders after such record date.
Section 9.03. Execution of Amendments and Supplemental Indentures. In
executing, or accepting the additional trusts created by, any amendment or
supplemental indenture permitted by this Article IX or the modifications thereby
of the trusts created by this Indenture, the Indenture Trustee shall be entitled
to receive, and (subject to Section 7.01) 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
which affects the Indenture Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 9.04. Effect of Amendments and Supplemental Indentures. Upon the
execution of any amendment or supplemental indenture under this Article IX, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes which have theretofore been or thereafter are authenticated and
delivered hereunder shall be bound thereby.
Section 9.05. Reference in Notes to Amendments and Supplemental Indentures.
Notes authenticated and delivered after the execution of any amendment or
supplemental indenture pursuant to this Article IX may, and if required by the
Issuer shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Issuer 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 9.06. Indenture Trustee to Act on Instructions. Notwithstanding any
provision herein to the contrary (other than Section 9.02), in the event the
Indenture Trustee is uncertain as to the intention or application of any
provision of this Indenture or any other agreement to which it is a party, or
such intention or application is ambiguous as to its purpose or application, or
is, or appears to be, in conflict with any other applicable provision thereof,
or if this Indenture or any other agreement to which it is a party permits or
does not prohibit any determination by the Indenture Trustee, or is silent or
incomplete as to the course of action which the Indenture Trustee is required or
is permitted or may be permitted to take with respect to a particular set of
facts or circumstances, the Indenture Trustee shall, at the expense of the
Issuer, request and rely upon the following: (a) written instructions of the
Issuer directing the Indenture Trustee to take certain actions or refrain from
taking certain actions, which written instructions shall contain a certification
that the taking of such actions or refraining from taking certain actions is in
the best interest of the Noteholders, and (b) prior written consent of the
Majority Holders. In such case, the Indenture Trustee shall have no liability to
the Issuer or the Noteholders for, and the Issuer shall hold harmless the
Indenture Trustee from, any liability, costs or expenses arising from or
relating to any action taken by the Indenture Trustee acting upon such
instructions, and the Indenture Trustee shall have no responsibility to the
Noteholders with respect to any such liability, costs or expenses.
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ARTICLE X
MISCELLANEOUS
Section 10.01. Compliance Certificates and Opinions; Furnishing of
Information. 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 a certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with or an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of certificates and Opinions of Counsel are specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or Opinion of Counsel need be
furnished.
Section 10.02. Form of Documents Delivered to Indenture Trustee. (a) If
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.
(b) 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 outside counsel, unless such Authorized 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 his
certificate or opinion is based are erroneous. Any such certificate or opinion
or any Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an Authorized
Officer of any relevant Person, stating that the information with respect to
such factual matters is in the possession of such Person, unless such officer or
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. Any Opinion of Counsel may be based on the written opinion of other
counsel, in which event such Opinion of Counsel shall be accompanied by a copy
of such other counsel's opinion and shall include a statement to the effect that
such counsel believes that such counsel and the Indenture Trustee may reasonably
rely upon the opinion of such other counsel.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, notices, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Wherever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
or the Servicer shall deliver any document as a condition of the granting of
such application, or as evidence of the Issuer's or the Servicer'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 notice or
report (as the case may be), of the facts and opinions stated in such document
shall in such case be conditions
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precedent to the right of the Issuer to have such application granted or to the
sufficiency of such notice 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 Section 7.01(b)(ii).
(e) Wherever in this Indenture it is provided that the absence of the
occurrence and continuation of a Termination Event, Default, an Event of Default
or a Servicer Event of Default is a condition precedent to the taking of any
action by the Indenture Trustee at the request or direction of the Issuer, then
notwithstanding that the satisfaction of such condition is a condition precedent
to the Issuer's or the Indenture Trustee's right to make such request or
direction, the Indenture Trustee shall be protected in acting in accordance with
such request or direction if it does not have actual knowledge of the occurrence
and continuation of such Termination Event, Default, Event of Default or
Servicer Event of Default.
Section 10.03. Acts of Noteholders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in person
or by an agent 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 7.01)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section 10.03.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Whenever
such execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(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 or transfer 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 Notes.
Section 10.04. Notices, Etc. Any request, demand, authorization, direction,
notice, consent, waiver or act of Noteholders or other documents provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with:
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(a) the Indenture Trustee, by any Noteholder, the Agent or by the Issuer,
shall be in writing and shall be delivered personally or mailed by first-class
registered or certified mail, postage prepaid, or by telephonic facsimile
transmission and overnight delivery service, postage prepaid, and received by, a
Responsible Officer of the Indenture Trustee at its Corporate Trust Office
listed below, or
(b) any other Person shall be in writing and shall be delivered personally
or mailed by first-class registered or certified mail, postage prepaid, or by
telephonic facsimile transmission and overnight delivery service, postage
prepaid, at the address listed below or at any other address previously
furnished in writing to the Indenture Trustee by the applicable Person.
To the Indenture Trustee: JPMorgan Chase Bank, N.A.
000 Xxxxxx Xx., 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Structured Finance - Bay View 2005
Phone: (000) 000-0000
Fax: (000) 000-0000
To the Issuer: Bay View 2005 Warehouse Trust
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Bay View Acceptance Corporation
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
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To the Agent: XX Xxxxxx Xxxxx Bank, N.A.
Asset Backed Finance
Suite IL1-00594, 1-19
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Xxxxxx Xxxxxxx Corp.
Address: 000 X. XxXxxxx Xx., Xxxxx 00X
Xxxxxxx, XX 00000
Attn: Conduit Administration
Phone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxxxxx@xxxxxxxxxxxxx.xxx
To the Initial Purchasers: Fairway Finance Company, LLC
Address: c/o Lord Securities Corporation
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxx: Xxxxxxx Figueroa
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xx@xxxxxxx.xxx
Copy to:
Xxxxxx Xxxxxxx Corp.
Address: 000 X. XxXxxxx Xx., Xxxxx 00X
Xxxxxxx, XX 00000
Attn: Conduit Administration
Phone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxxxxx@xxxxxxxxxxxxx.xxx
Falcon Asset Securitization
Asset Backed Finance
Suite IL1-0079
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000-0079
Fax: 000-000-0000
Section 10.05. Notices and Reports to Noteholders; Waiver of Notices. (a)
Where this Indenture provides for notice to Noteholders of any event or the
mailing of any report to the Noteholders, such notice or report shall be written
and shall be sufficiently given (unless
88
otherwise herein expressly provided) if mailed, first-class, postage-prepaid, to
each Noteholder affected by such event or to whom such report is required to be
mailed, at the address of such Noteholder 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 or the mailing of such report. In any
case where a notice or report to Noteholders is mailed in the manner provided
above, neither the failure to mail such notice or report, nor any defect in any
notice or report so mailed, to any particular Noteholder shall affect the
sufficiency of such notice or report with respect to other Noteholders, and any
notice or report which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given or provided.
(b) 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 waiver.
(c) If, 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 the Agent or the 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.
Section 10.06. Rules by Indenture Trustee. The Indenture Trustee may make
reasonable rules for any meeting of Noteholders.
Section 10.07. Issuer Obligation. No recourse may be taken, directly or
indirectly, against (a) any incorporator, subscriber to the capital stock,
stockholder, officer, employee, agent or director of the Issuer or of any
predecessor of the Issuer, (b) any partner, beneficiary, agent, trustee,
officer, director, employee, or successor or assign of a holder of a beneficial
interest in the Issuer or the Owner Trustee, (c) any incorporator, subscriber to
the capital stock, stockholder, officer, director, employee or agent of the
Indenture Trustee or any predecessor or successor of the Indenture Trustee, or
(d) any incorporator, subscriber to capital stock, stockholder, officer,
director, employee or agent of the Indenture Trustee or any predecessor or
successor thereof, with respect to the Issuer's obligations with respect to the
Notes or any of the statements, representations, covenants, warranties or
obligations of the Issuer under this Indenture or any Note or other writing
delivered in connection herewith or therewith.
Section 10.08. Enforcement of Benefits. The Agent, the Indenture Trustee
(with the consent of the Majority Holders), and the Noteholders shall be
entitled to enforce and, at the direction of the Agent, the Indenture Trustee
shall enforce the covenants and agreements of the Servicer and the Contributor
contained in the Sale and Servicing Agreement, the Contribution Agreement and
each other Transaction Document.
Section 10.09. Effect of Headings and Table of Contents. The Section and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
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Section 10.10. Successors and Assigns. All covenants and agreements in this
Indenture by the Issuer and the Indenture Trustee shall bind their respective
successors and assigns, whether so expressed or not.
Section 10.11. Separability. If 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. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Indenture, a
provision as similar in its terms and purpose to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
Section 10.12. Benefits of Indenture. The Agent and its successors and
assigns shall be third-party beneficiaries to the provisions of this Indenture,
and shall be entitled to rely upon and directly to enforce such provisions of
this Indenture. Nothing in this Indenture or in the Notes, expressed or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the Agent, any separate trustee or co-trustee appointed under Section
7.13 and the Noteholders, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 10.13. Legal Holidays. If the date of any Payment Date or any other
date on which principal of or interest on any Note is proposed to be paid or any
date on which mailing of notices by the Indenture Trustee to any Person is
required pursuant to any provision of this Indenture, shall not be a Business
Day, then (notwithstanding any other provision of the Notes or this Indenture)
payment or mailing of such notice need not be made on such date, but may be made
or mailed on the next succeeding Business Day with the same force and effect as
if made or mailed on the nominal date of any such Payment Date or other date for
the payment of principal of or interest on any Note, or as if mailed on the
nominal date of such mailing, as the case may be, and in the case of payments,
no interest shall accrue for the period from and after any such nominal date,
provided such payment is made in full on such next succeeding Business Day;
provided further, however, that if any such payment is a payment of Note
Interest calculated based on LIBOR, and such next succeeding Business Day is in
a different calendar month then the scheduled Payment Date, then such payment
shall be made on the Business Day next preceding such scheduled Payment Date.
Section 10.14. Governing Law. This Indenture and each Note shall be construed
in accordance with and governed by the substantive laws of the State of New York
(including New York General Obligations Laws Sections 5-1401 and 5-1402, but
otherwise without regard to conflict of law provisions thereof, except with
regard to the UCC) applicable to agreements made and to be performed therein.
Section 10.15. Counterparts. This instrument 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 10.16. Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, the Issuer shall effect
such recording at its expense in compliance with an Opinion of Counsel 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
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of any right or remedy granted to the Indenture Trustee under this Indenture or
the Sale and Servicing Agreement or any other Transaction Document.
Section 10.17. Further Assurances. The Issuer agrees to do and perform, from
time to time, any and all acts and to execute any and all further instruments
required or reasonably requested by the Indenture Trustee or the Agent more
fully to effect the purposes of this Indenture, including, without limitation,
the execution of any financing statements or continuation statements relating to
the Trust Estate for filing under the provisions of the UCC of any applicable
jurisdiction.
Section 10.18. No Bankruptcy Petition Against the Issuer. The Indenture
Trustee agrees (and the Agent and each Noteholder by acceptance of the Notes
shall be deemed to agree) that, prior to the date that is one year and one day
after the payment in full of all amounts payable with respect to the Notes, it
will not institute against the Issuer or the Depositor, or join any other Person
in instituting against the Issuer or the Depositor, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under the laws of the United States or any State of the United
States. This Section 10.18 shall survive the termination of this Indenture.
Section 10.19. Limitation of Liability. Notwithstanding any other provision
herein or elsewhere, this Indenture has been executed and delivered by
Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee of the Issuer under the Issuer Trust Agreement, and in
no event shall Wilmington Trust Company or the Owner Trustee have any liability
in respect of the representations, warranties, or obligations of the Issuer
hereunder or under any other Transaction Document, as to all of which recourse
shall be had solely to the assets of the Issuer, and for all purposes of this
Indenture and each other Transaction Document the Owner Trustee and Wilmington
Trust Company shall be entitled to the benefits of the Issuer Trust Agreement.
Section 10.20. Limitation on Recourse. Notwithstanding any provision herein
to the contrary, the obligations of the Issuer shall not be a general obligation
of, or construed as permitting recourse to, the Issuer; it being understood that
the sole recourse of any party with respect to the payment obligations of the
Issuer shall be the Monthly Available Funds and such obligations shall be paid
in accordance with the priority of payments set forth in Section 5.03(b) hereof.
Section 10.21. Confidentiality. (a) The Issuer, the Servicer, the Agent and
each Noteholder shall maintain and shall cause each of its employees and
officers to maintain the confidentiality of this Indenture and the other
confidential or proprietary information with respect to the Issuer, the
Servicer, the Agent and each Noteholder and their respective businesses obtained
by it or them in connection with the structuring, negotiating and execution of
the transactions contemplated herein, except that Issuer, the Servicer, the
Agent and each Noteholder and its officers and employees may disclose such
information to such party's external accountants and attorneys, as required by
any applicable law or order of any judicial or administrative proceeding, and as
may be required in connection with any examination by applicable regulatory
authorities.
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(b) Anything herein to the contrary notwithstanding, each of the Issuer
and the Servicer hereby consents to the disclosure of any nonpublic information
with respect to it (i) to the Agent, each Noteholder or the Financial
Institutions by each other, (ii) by the Agent, the Financial Institutions or the
Noteholders to any prospective or actual assignee or participant of any of them,
(iii) by the Agent, the Financial Institutions or any Noteholder to any Rating
Agency or Commercial Paper dealer, and (iv) by the Agent to any provider of a
surety, guaranty or credit or liquidity enhancement to the Noteholder or any
entity organized for the purpose of purchasing, or making loans secured by,
financial assets for which JPMorgan Chase Bank, N.A. acts as the agent or
administrator and to any officers, directors, employees, outside accountants and
attorneys of any of the foregoing; provided that in the case of any party
identified in clauses (ii) and (iv) above, such party shall have agreed to abide
by the confidentiality provisions set forth in this Section. In addition, the
Noteholders, the Financial Institutions and the Agent may disclose any such
nonpublic information pursuant to any law, rule, regulation, direction, request
or order of any judicial, administrative or regulatory authority or proceedings
(whether or not having the force or effect of law).
(c) Without limiting the generality of the foregoing, the parties hereto
agree that their use and disclosure of any such confidential or proprietary
information shall be in compliance with all applicable laws and regulations.
ARTICLE XI
TERMINATION
Section 11.01. Termination of Indenture. (a) This Indenture shall terminate
on or after the Termination Date upon the payment to the Noteholders and the
Indenture Trustee of all amounts required to be paid to them pursuant to this
Indenture, and the conveyance and transfer of all right, title and interest in
and to the Receivables and other property and funds in the Trust Estate to the
Issuer. The Issuer shall promptly notify the Indenture Trustee of any
prospective termination pursuant to this Article XI.
(b) Notice of any prospective termination, specifying the Payment Date for
payment of the final payment and requesting the surrender of the Notes for
cancellation, shall be given promptly by the Indenture Trustee by letter to the
Noteholders as of the applicable Record Date and the Agent upon the Indenture
Trustee receiving written notice of such event from the Issuer or the Servicer.
The Issuer or the Servicer shall give such notice to the Indenture Trustee not
later than the 5th day of the month of the final Payment Date stating (A) the
Payment Date upon which final payment of the Notes shall be made, (B) the amount
of any such final payment, and (C) the location for presentation and surrender
of the Notes. Surrender of the Notes shall be a condition of payment of such
final payment.
[SIGNATURE PAGE FOLLOWS]
92
IN WITNESS WHEREOF, the Issure and the Indenture Trustee have caused this
indenture to be duly executed as of the day and year first above written.
BAY VIEW 2005 WAREHOUSE TRUST,
as Issure
By: WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as Owner Trustee
By: /s/ Xxxxx X Xxxxxxx
----------------------
Name: Xxxxx X Xxxxxxx
Title: Senior Financial Services Officer
SIGNATURE PAGE TO INDENTURE
JPMORGAN CHASE BANK, N.A, as Indenture
Trustee
By: /s/ Xxxx Xx Xxxxx
----------------------
Name: Xxxx Xx Xxxxx
Title: Vice President
AGREED AND ACKNOWLEDGED:
BAY VIEW ACCEPTANCE CORPORATION,
as Servicer
By: /s/ Xxxx X. Xxxxx
--------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
Schedule I
Schedule of Initial Receivables
EXHIBIT A
FORM OF
NOTICE OF FUNDING, CERTIFICATION
AND FUNDING CERTIFICATE
To: JPMorgan Chase Bank, N.A.
000 Xxxxxx Xx., 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Structured Finance - Bay View 2005
JPMorgan Chase Bank, N.A.
Asset Backed Finance
Suite IL1-0594
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0079
Xxxxxx Xxxxxxx Corp.
Address: 000 X. XxXxxxx Xx., Xxxxx 00X
Xxxxxxx, XX 00000
Attn: Conduit Administration
Reference is made to (i) the Indenture, dated as of June 20, 2005 (as
amended, supplemented, or otherwise modified from time to time in accordance
with its terms, the "Indenture"), by and between Bay View 2005 Warehouse Trust,
as issuer (the "Issuer") and JPMorgan Chase Bank, N.A., as indenture trustee
(the "Indenture Trustee"), (ii) the Custodian Agreement, dated as of June 20,
2005 (as amended, supplemented, or otherwise modified from time to time in
accordance with its terms, the "Custodian Agreement"), among Issuer, Indenture
Trustee and Bay View Acceptance Corporation ("Bay View Acceptance"), as
custodian (in such capacity, the "Custodian"), (iii) the Contribution Agreement,
dated as of June 20, 2005 (as amended, supplemented, or otherwise modified from
time to time in accordance with its terms, the "Contribution Agreement"), by and
between Bay View Acceptance, as contributor (in such capacity, the
"Contributor") and Bay View Warehouse Corporation, as depositor (the
"Depositor"), and (iv) the Sale and Servicing Agreement, dated as of June 20,
2005 (as amended, supplemented, or otherwise modified from time to time in
accordance with its terms, the "Sale and Servicing Agreement"), by and among the
Issuer, the Depositor, the Indenture Trustee, Systems & Services Technologies,
Inc., as backup servicer, and Bay View Acceptance, as Contributor and Servicer.
Unless otherwise defined herein, capitalized terms have the meanings set forth
in the Indenture and to the extent not defined therein, in the Custodian
Agreement.
ARTICLE 1
[NOTICE OF FUNDING]
[SEE EXHIBIT C TO THE INDENTURE]
ARTICLE 2
[CERTIFICATION]
[SEE EXHIBIT A TO THE CUSTODIAN AGREEMENT]
ARTICLE 3
FUNDING CERTIFICATE
This Funding Certificate is being issued in accordance with Section 2.12
of the Indenture.
The Issuer, the Contributor, and the Depositor, as transferee, hereby
certify that:
(a) The matters set forth in Section 3.02 of the Contribution Agreement
are true and correct, and that the matters set forth in Section 3.02 of the Sale
and Servicing Agreement are true and correct as of the date hereof. All
Receivables to be acquired on the Funding Date to occur on or before
__________________ constitute Eligible Receivables.
(b) the representations and warranties of the Issuer set forth in Section
3.12 of the Indenture are true and correct as of the date hereof;
(c) the documents listed in Section 2.12 of the Indenture have been
delivered to the Custodian;
(d) the requirements stated in Section 2.12 of the Indenture regarding the
Subsequent Transfer to be effected on the Funding Date have been met; and
(e) no Termination Event, Default, Event of Default or Servicer Event of
Default has occurred or is continuing.
(f) All conditions in Article IV of the Contribution Agreement and Article
IV of the Sale and Servicing Agreement have been met.
This Notice of Funding, Certification and Funding Certificate may be
executed in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same instrument.
[SIGNATURE PAGES FOLLOWS]
3
By signing in the space provided below, the Issuer hereby acknowledges and
agrees that it is becoming a party to this Notice of Funding, Certification and
Funding Certificate for, and will only be bound, by the certifications it has
made as contained in Articles 1 and 3 hereof.
BAY VIEW 2005 WAREHOUSE TRUST, AS ISSUER
BY: WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Owner
Trustee
BY: _________________________________
NAME: _______________________________
TITLE: ______________________________
By signing in the space provided below, the Depositor (i) hereby
acknowledges and agrees that it is becoming a party to this Notice of Funding,
Certification and Funding Certificate for, and will only be bound, by the
certifications it has made as contained in Articles 1 and 3 hereof and (ii) as
the Certificateholder of the Issuer, hereby directs the Owner Trustee indicated
above to execute this Notice of Funding, Certification and Funding Certificate
to the extent set forth herein on behalf of the Issuer.
BAY VIEW WAREHOUSE CORPORATION, AS
DEPOSITOR
BY: ________________________________
NAME: XXXX X. XXXXX
TITLE: SENIOR VICE PRESIDENT, CHIEF
FINANCIAL OFFICER AND TREASURER
By signing in the space provided below, Bay View Acceptance as Contributor
and Custodian, as applicable, hereby acknowledges and agrees that it is becoming
a party to this Notice of Funding, Certification and Funding Certificate for,
and will be bound, by the certifications it has made as contained in Articles 1,
2 and 3 hereof.
BAY VIEW ACCEPTANCE CORPORATION, AS
CONTRIBUTOR AND CUSTODIAN
BY: _______________________________
NAME: XXXX X. XXXXX
TITLE: CHIEF FINANCIAL OFFICER
4
EXHIBIT B
REQUEST FOR RELEASE
TO: JPMorgan Chase Bank, N.A.
000 Xxxxxx Xx., 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Structured Finance - Bay View 2005
Xxxxxx Xxxxxxx Corp.
Address: 000 X. XxXxxxx Xx., Xxxxx 00X
Xxxxxxx, XX 00000
Attn: Conduit Administration
JPMorgan Chase Bank, N.A.
Asset Backed Finance
Suite IL1-0594
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0079
Pursuant to Section 6.04 of the Indenture, dated as of June 20, 2005 (as
amended, modified or otherwise supplemented from time to time, the "Indenture"),
by and between Bay View 2005 Warehouse Trust, as issuer (the "Issuer") and
JPMorgan Chase Bank, N.A. (as indenture trustee (the "Indenture Trustee"), the
undersigned, as Servicer, requests that the Indenture Trustee (i) release its
lien under the Indenture in the Receivables identified on Schedule I hereto (the
"Released Receivables") and the related Custodian Files and (ii) authorize the
preparation and filing by the Servicer of all UCC financing statement amendments
necessary to terminate all of the Indenture Trustee's interest in the Released
Receivables, in each case by countersigning this Request for Release below.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to such terms in the Indenture.
The Servicer hereby certifies that $______________ has been deposited in
the Collection Account and that such amount equals the Repurchase Price of the
Released Receivables (the "Repurchase Price").
Pursuant to the receipt in immediately available funds of the Repurchase
Price, the Indenture Trustee hereby releases its lien under the Indenture in the
Released Receivables. Pursuant to Section 6.04 of the Indenture, upon the
release contemplated herein, the Issuer shall have the power to direct the
disposition of, or enter into agreements relating to, its rights, title and
interest in the Released Receivables including, but not limited to, a sale
thereof to a third party.
5
This Request for Release may be executed in multiple counterparts, each of
which will be deemed an original and all of which together shall constitute one
agreement. Delivery of an executed counterpart of a signature page to this
Request for Release by facsimile or other electronic transmission shall be
effective as delivery of a manually executed original counterpart thereof.
[SIGNATURE PAGE TO FOLLOW]
6
DATE: ____________, _______ BAY VIEW ACCEPTANCE CORPORATION, as
Servicer
By: ___________________________
Name: _____________________
Title: ____________________
ACKNOWLEDGED AND AGREED TO
HIS _____ DAY OF _______________:
BAY VIEW ACCEPTANCE CORPORATION, as
Custodian
By:__________________________
Name: ____________________
Title: ___________________
ACKNOWLEDGED AND AGREED TO
THIS _____ DAY OF ____________________:
(with respect to the receipt of the
Repurchase Price and the release of its lien)
JPMORGAN CHASE BANK, N.A.,
as Indenture Trustee
By:__________________________
Name: ____________________
Title: ___________________
SCHEDULE I
TO REQUEST FOR RELEASE
RELEASED RECEIVABLES
EXHIBIT C
FORM OF
NOTICE OF FUNDING, CERTIFICATION
AND FUNDING CERTIFICATE
To: JPMorgan Chase Bank, N.A.
000 Xxxxxx Xx., 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Structured Finance - Bay View 2005
Xxxxxx Xxxxxxx Corp.
Address: 000 X. XxXxxxx Xx., Xxxxx 00X
Xxxxxxx, XX 00000
Attn: Conduit Administration
JPMorgan Chase Bank, N.A.
Asset Backed Finance
Suite IL1-0594
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0079
Reference is made to (i) the Indenture, dated as of June 20, 2005 (as
amended, supplemented, or otherwise modified from time to time in accordance
with its terms, the "Indenture"), by and between Bay View 2005 Warehouse Trust,
as issuer (the "Issuer") and JPMorgan Chase Bank, N.A., as indenture trustee
(the "Indenture Trustee"), (ii) the Custodian Agreement, dated as of June 20,
2005 (as amended, supplemented, or otherwise modified from time to time in
accordance with its terms, the "Custodian Agreement"), among Issuer, Indenture
Trustee and Bay View Acceptance Corporation ("Bay View Acceptance"), as
custodian (in such capacity, the "Custodian"), (iii) the Contribution Agreement,
dated as of June 20, 2005 (as amended, supplemented, or otherwise modified from
time to time in accordance with its terms, the "Contribution Agreement"), by and
between Bay View Acceptance, as contributor (in such capacity, the
"Contributor") and Bay View Warehouse Corporation, as depositor (the
"Depositor"), and (iv) the Sale and Servicing Agreement, dated as of June 20,
2005 (as amended, supplemented, or otherwise modified from time to time in
accordance with its terms, the "Sale and Servicing Agreement"), by and among the
Issuer, the Depositor, the Indenture Trustee, Systems & Services Technologies,
Inc., as backup servicer, and Bay View Acceptance, as Contributor and Servicer.
Unless otherwise defined herein, capitalized terms have the meanings set forth
in the Indenture and to the extent not defined therein, in the Custodian
Agreement.
ARTICLE 1
NOTICE OF FUNDING
In accordance with the Indenture, the Issuer, Bay View Acceptance and
Depositor hereby give notice of the Funding Date to occur on or before
__________________ for each of the Subsequent Receivables listed on the Schedule
of Receivables attached hereto.
The Aggregate Receivable Balance of such Subsequent Receivables, the
Aggregate Receivable Balance after adding such Subsequent Receivables, the Note
Principal Balance for each of the Notes, and the Receivables Advance Amount, are
as follows:
Aggregate Receivable Balance of
Subsequent Receivables as of the
Cutoff Date: $____________
Aggregate Receivable Balance
after addition of Subsequent
Receivables: $____________
Note Principal Balance for the
Notes as of Funding Date: $____________
Aggregate Receivables Advance
Amount: $____________
[Break down above aggregate
Advance Amount by each
purchaser based upon its
Noteholder Pro Rata Share] $____________
The Issuer, Bay View Acceptance, as Contributor and Custodian, and
Depositor hereby certify that, in connection with the Funding Date specified
above, each has complied with all terms and provisions specified in Section 2.12
of the Indenture, as applicable, including, but not limited to, delivery of the
Funding Certificate, as specified below.
ARTICLE 2
[CERTIFICATION]
[SEE EXHIBIT A TO THE CUSTODIAL AGREEMENT]
ARTICLE 3
[FUNDING CERTIFICATE]
This Notice of Funding, Certification and Funding Certificate may be
executed in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same instrument.
[SIGNATURE PAGES FOLLOWS]
By signing in the space provided below, the Issuer hereby acknowledges and
agrees that it is becoming a party to this Notice of Funding, Certification and
Funding Certificate for, and will only be bound, by the certifications it has
made as contained in Articles 1 and 3 hereof.
BAY VIEW 2005 WAREHOUSE TRUST, AS ISSUER
BY: WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as Owner
Trustee
BY: _______________________
NAME:______________________
TITLE: ____________________
By signing in the space provided below, the Depositor (i) hereby
acknowledges and agrees that it is becoming a party to this Notice of Funding,
Certification and Funding Certificate for, and will only be bound, by the
certifications it has made as contained in Articles 1 and 3 hereof and (ii) as
the Certificateholder of the Issuer, hereby directs the Owner Trustee indicated
above to execute this Notice of Funding, Certification and Funding Certificate
to the extent set forth herein on behalf of the Issuer.
BAY VIEW WAREHOUSE CORPORATION, AS
DEPOSITOR
BY:_________________________________
NAME: XXXX X. XXXXX
TITLE: SENIOR VICE PRESIDENT, CHIEF FINANCIAL
OFFICER AND TREASURER
By signing in the space provided below, Bay View Acceptance as Contributor
and Custodian, as applicable, hereby acknowledges and agrees that it is becoming
a party to this Notice of Funding, Certification and Funding Certificate for,
and will be bound, by the certifications it has made as contained in Articles 1,
2 and 3 hereof.
BAY VIEW ACCEPTANCE CORPORATION, AS
CONTRIBUTOR AND CUSTODIAN
BY:____________________________________
NAME: XXXX X. XXXXX
TITLE: CHIEF FINANCIAL OFFICER
Exhibit D
Form of Note
THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN
THE MAXIMUM OUTSTANDING NOTE AMOUNT SHOWN ON THE FACE HEREOF. ANY PURCHASER OF
THIS NOTE MAY ASCERTAIN THE OUTSTANDING PRINCIPAL AMOUNT HEREOF BY INQUIRY OF
THE INDENTURE TRUSTEE.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "Securities Act") OR ANY STATE SECURITIES LAWS, AND MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT IN
COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. THE
TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET
FORTH IN THE INDENTURE UNDER WHICH THIS NOTE IS ISSUED (A COPY OF WHICH IS
AVAILABLE FROM THE INDENTURE TRUSTEE UPON REQUEST).
EACH NOTEHOLDER, BY ITS ACCEPTANCE OF THIS NOTE (OR INTEREST THEREIN),
COVENANTS AND AGREES THAT SUCH NOTEHOLDER, AS THE CASE MAY BE, SHALL NOT, PRIOR
TO THE DATE THAT IS ONE YEAR AND ONE DAY AFTER THE TERMINATION OF THE INDENTURE,
ACQUIESCE, PETITION OR OTHERWISE INVOKE OR CAUSE THE ISSUER OR THE DEPOSITOR TO
INVOKE THE PROCESS OF ANY COURT OR GOVERNMENTAL AUTHORITY FOR THE PURPOSE OF
COMMENCING OR SUSTAINING A CASE AGAINST THE ISSUER OR THE DEPOSITOR UNDER ANY
FEDERAL OR STATE BANKRUPTCY, INSOLVENCY, REORGANIZATION OR SIMILAR LAW OR
APPOINTING A RECEIVER, LIQUIDATOR, ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR OR
OTHER SIMILAR OFFICIAL OF THE ISSUER OR THE DEPOSITOR OR ANY SUBSTANTIAL PART OF
EITHER OF THEIR PROPERTY, OR ORDERING THE WINDING UP OR LIQUIDATION OF THE
AFFAIRS OF THE ISSUER OR THE DEPOSITOR.
No. ____________ Maximum Outstanding Note Amount: $450,000,000
Bay View 2005 Warehouse Trust
Automobile Receivables-Backed Notes, Series 2005-1
DATED: ________________
Bay View 2005 Warehouse Trust, a statutory trust duly organized and
existing under the laws of the State of Delaware (the "Issuer," which term
includes any successor entity under the Indenture referred to below), for value
received, hereby promises to pay to ________________________, the principal sum
of up to a maximum of Four Hundred Fifty Million Dollars ($450,000,000) or so
much thereof as may be advanced and outstanding hereunder in accordance with the
provisions of the Indenture, and to pay interest monthly as provided herein on
the twentieth day of each calendar month beginning in July, 2005 or, if such
twentieth day is not a Business Day, the Business Day immediately following
(each, a "Payment Date") as set forth herein. Each monthly installment of
principal payable on this Note, if any, shall be an amount equal to the
Noteholder's pro rata share of the Principal Payment Amount, as such term is
defined in the Indenture described herein. Any remaining unpaid portion of the
principal amount of this Note shall be due and payable on the Maturity Date as
defined in the
Indenture. The interest and principal so payable on any Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note is
registered on the Record Date for such Payment Date, which shall be the close of
business on the last day of the calendar month immediately preceding such
Payment Date (whether or not a Business Day).
By its acceptance of this Note, the Noteholder covenants and agrees,
during the Funding Period, to advance additional principal amounts hereunder to
the Issuer, subject to and in accordance with the terms of the Indenture, the
Sale and Servicing Agreement, and the Note Purchase Agreement.
In the event of an advance of Additional Note Principal Balances by the
Noteholder as provided in Section 2.13 of the Indenture, the Noteholder shall,
and is hereby authorized to, record on the schedule attached to its Note the
date and amount of any Additional Note Principal Balance advanced by it, and
each repayment thereof; provided that failure to make any such recordation on
such schedule or any error in such schedule shall not adversely affect the
Noteholder's rights with respect to the Note Principal Balance and its right to
receive interest payments in respect of the Note Principal Balance.
The Indenture Trustee shall keep a written record of the Note Principal
Balance of this Note. Absent manifest error, the Note Principal Balance of this
Note as set forth in the Noteholder's records shall be binding upon all
applicable parties, notwithstanding any other records; provided that failure by
the Noteholder to make such recordation on the Noteholder's records shall not
adversely affect the Noteholder's rights with respect to the Note Principal
Balance and its right to receive interest payments in respect of the Note
Principal Balance.
This Note is one of a duly authorized issue of Notes of the Issuer
designated as its Automobile Receivables-Backed Notes, Series 2005-1 (herein
called the "Notes") issued and to be issued under the Indenture dated as of June
20, 2005 (herein called the "Indenture"), among the Issuer and JPMorgan Chase
Bank, N.A. as Indenture Trustee (the "Indenture Trustee," which term includes
any successor Indenture Trustee under the Indenture), to which Indenture, and
all amendments and indentures supplemental thereto, reference is hereby made for
a statement of the respective rights thereunder of the Issuer, the Indenture
Trustee and the Noteholders, and the terms upon which the Notes are, and are to
be, authenticated and delivered. All terms used in this Note and not defined
herein shall have the meanings assigned to them in the Indenture.
Interest will accrue on the outstanding principal balance of this Note for
each applicable Interest Rate Period at the applicable Note Interest Rate on the
basis of a 360-day year and actual days elapsed until the last day preceding the
final Payment Date and (to the extent that the payment of such interest shall be
legally enforceable) on any overdue installment of interest from the date such
interest became due and payable (giving effect to any applicable grace periods)
until fully paid. Interest will be due and payable in arrears on each Payment
Date, with each payment of interest calculated as described above on the average
daily outstanding principal balance of this Note for the period from and
including the Payment Date immediately preceding the applicable Payment Date
(after giving effect to any payments of principal on such immediately preceding
Payment Date) to but excluding the applicable Payment Date or, with respect to
the initial Payment Date, for the period from the Closing Date through the day
preceding the initial Payment Date. In making any such interest payment, if the
interest calculation with respect to this Note shall result in a portion of such
payment being less than $0.01, then such payment shall be decreased to the
nearest whole cent, and no subsequent adjustment shall be made in respect
thereof.
THE OBLIGATION OF THE ISSUER TO REPAY THIS NOTE IS A LIMITED, NONRECOURSE
OBLIGATION SECURED ONLY BY THE TRUST ESTATE. All payments of principal of and
interest on this Note shall be made only from the Trust Estate, and each Holder
hereof, by its acceptance of this Note, agrees that it shall be entitled to
payments solely from such Trust Estate pursuant to the terms of the Indenture.
The actual outstanding principal balance on this Note may be less than the
principal balance indicated on the face hereof. The actual principal balance on
this Note at any time may be obtained from the Indenture Trustee.
All payments of interest and principal on this Note on the applicable
Payment Date shall be paid to the Person in whose name this Note is registered
at the close of business on the Record Date for such Payment Date in the manner
provided in the Indenture. All reductions in the principal amount of this Note
(or one or more Predecessor Notes) effected by full or partial payments of
installments of principal shall be binding upon all past, then current, and
future Holders of this Note and of any Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, whether or not such
payment is noted on this Note.
This Note is scheduled to mature on the Payment Date in 97th month
following the final Funding Date, unless this Note is earlier repaid or
accelerated pursuant to the Indenture. The Indenture Trustee shall pay to the
Noteholder of record on the preceding Record Date either (i) by wire transfer,
in immediately available funds to the account of the Noteholder at a bank or
other entity having appropriate facilities therefor, if the Noteholder shall
have provided to the Indenture Trustee appropriate written instructions at least
five (5) Business Days prior to the related Payment Date (which instructions may
remain in effect for subsequent Payment Dates unless revoked by the Noteholder),
or (ii) if not, by check mailed to the Noteholder at the address of the
Noteholder appearing in the Note Register, the amounts to be paid to the
Noteholder pursuant hereto.
Without limiting any provision in the Transaction Documents, if the
adoption after the date hereof of any applicable law, rule or regulation
(including any applicable law, rule or regulation regarding capital adequacy),
any accounting principles or any change in any of the foregoing, or any change
in the interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or by the Financial
Accounting Standards Board ("FASB") or compliance by the Noteholder with any
request or directive (whether or not having the force of law) after the date
hereof of any such governmental authority or FASB (a) subjects the Noteholder to
any charge or withholding on or in connection with this Note, the Note Purchase
Agreement, the Liquidity Agreement, the Indenture, or any other Transaction
Document (collectively, the "Funding Documents") or any amounts outstanding
hereunder or thereunder, (b) changes the basis of taxation of payments to the
Noteholder of any amounts payable under any of the Funding Documents (except for
changes in the rate of tax on the overall net income of the Noteholder), (c)
imposes, modifies or deems applicable any reserve, assessment, insurance charge,
special deposit or similar requirement against assets of, deposits with or for
the account of, or any credit extended by, the Noteholder,
(d) has the effect of reducing the rate of return on the Noteholder's capital to
a level below that which the Noteholder could have achieved but for such
adoption, change or compliance (taking into consideration the Noteholder's
policies concerning capital adequacy) or (e) imposes any other condition, and
the result of any of the foregoing is (i) to impose a cost on, or increase the
cost to, the Noteholder of its commitment under any Funding Document or of
purchasing, maintaining or funding any interest acquired under any Funding
Document, or (ii) to reduce the amount of any sum received or receivable by, or
to reduce the rate of return of, the Noteholder under any Funding Document,
then, upon demand by the Noteholder with written notice to the Indenture Trustee
of the amount claimed hereunder, the Issuer promises to pay to the Noteholder
such additional amounts as will compensate the Noteholder for such increased
cost or reduction. Without limiting the foregoing, the Issuer acknowledges and
agrees that the fees and other amounts payable by the Issuer to the Noteholder
have been negotiated on the basis that the unused portion of the Noteholder's
commitment under the Note Purchase Agreement and Liquidity Agreement is treated
as a "short term commitment" for which there is no regulatory capital
requirement. If the Noteholder determines it is required to maintain capital
against its unused commitment, the Noteholder shall be entitled to compensation
hereunder. Further, for the avoidance of doubt, if the issuance of FASB
Interpretation No. 46, or any other change in accounting standards or the
issuance of any other pronouncement, release or interpretation, causes or
requires the consolidation of all or a portion of the assets and liabilities of
the Issuer or the Initial Purchasers with the assets and liabilities of JPMorgan
Chase Bank, N.A. or any Financial Institution, such event shall constitute a
circumstance on which JPMorgan Chase Bank, N.A. or such Financial Institution
may base a claim for reimbursement hereunder.
THIS NOTE SHALL BE SUBJECT TO OPTIONAL REPAYMENT AT THE OPTION OF THE
ISSUER IN THE MANNER AND SUBJECT TO THE PROVISIONS OF THE INDENTURE. Whenever by
the terms of the Indenture, the Indenture Trustee is required to repay Notes,
and subject to and in accordance with the terms of Article VI of the Indenture,
the Indenture Trustee shall give notice of the repayment in the manner
prescribed by the Indenture.
This Note is issuable only in registered form in denominations as provided
in the Indenture and subject to certain limitations therein set forth.
The final payment on this Note shall be made only upon presentation and
surrender of this Note at the Corporate Trust Office of the Indenture Trustee.
The Noteholder shall have no right to enforce the provisions of the
Indenture or to institute action to enforce the covenants therein, or to take
any action with respect to any Event of Default, or to institute, appear in or
defend any suit or other proceedings with respect thereto, except as provided in
the Indenture.
At the option of the Noteholder, this Note may be exchanged for a Note or
Notes of like terms, in any authorized denominations and of like aggregate
principal amount, and the transfer may be registered, by the Noteholder in
person or by their attorneys duly authorized in writing at the Corporate Trust
Office of the Indenture Trustee only in the manner, subject to the limitations
provided in the Indenture, and upon surrender and cancellation of this Note.
Upon exchange or registration of such transfer, a new registered Note or Notes
evidencing the same outstanding principal amount will be executed in exchange
therefor.
All amounts collected as payments on the Trust Estate or otherwise shall
be applied in the order of priority specified in the Indenture.
Each Person who has or who acquires any Ownership Interest in this Note
shall be deemed by the acceptance or acquisition of such Ownership Interest to
have agreed to be bound by the provisions of Sections 2.06 and 2.07 of the
Indenture. The Noteholder may not sell, offer for sale, assign, pledge,
hypothecate or otherwise transfer or encumber all or any part of its interest in
this Note except pursuant to an effective registration statement covering such
transaction under the Securities Act of 1933, as amended, and effective
qualification or registration under all applicable State securities laws and
regulations or under an exemption from registration under said Securities Act
and said State securities laws and regulations.
In addition, each Person who has or who acquires any Ownership Interest in
this Note shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 10.18 of the
Indenture. Prior to the date that is one year and one day after the payment in
full of all amounts payable with respect to the Notes, each Person who has or
acquires an Ownership Interest in this Note agrees that such Person will not
institute against the Issuer or the Depositor, or join any other Person in
instituting against the Issuer or the Depositor, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under
the laws of the United States or any State of the United States. This covenant
shall survive the termination of the Indenture.
Before 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 is registered (i) on any
Record Date for purposes of making payments, and (ii) on any other date for any
other purpose, as the owner hereof, whether or not this Note be overdue, and
neither the Issuer, the Indenture Trustee nor any such agent shall be affected
by notice to the contrary.
The Indenture permits the amendment thereof for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, the Indenture or of modifying in any manner the rights of the Noteholders
under the Indenture at any time by the Issuer and the Indenture Trustee with the
consent of the Majority Holders (and, in some cases, only with the consent of
each Noteholder affected thereby) and compliance with certain other conditions.
Any such consent by the Holder, at the time of the giving thereof, 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.
This Note and all obligations with respect thereto, including obligations
under the Indenture, will be limited recourse obligations of the Issuer payable
solely from the Trust Estate. Neither the Issuer, the Depositor, the Servicer,
the Backup Servicer, the Custodian, the Paying Agent, the Note Registrar, the
Indenture Trustee in its individual capacity or in its capacity as Indenture
Trustee, nor any of their respective Affiliates, agents, partners,
beneficiaries, officers, directors, stockholders, stockholders of partners,
employees or successors or assigns, shall be personally liable for any amounts
payable, or performance due, under this Note or the Indenture.
Without limiting the foregoing, each Holder by its acceptance hereof, and the
Indenture Trustee, shall be deemed to have agreed (i) that it shall look only to
the Trust Estate to satisfy the Issuer's obligations hereunder or the Indenture,
including but not limited to liabilities under Article V of the Indenture and
liabilities arising (whether at common law or equity) from breaches by the
Issuer of any obligations, covenants and agreements herein or, to the extent
enforceable, for any violation by the Issuer of applicable State or federal law
or regulation, provided that, the Issuer shall not be relieved of liability
hereunder with respect to any misrepresentation in the Indenture or the Sale and
Servicing Agreement, or fraud, of the Issuer, and (ii) to waive any rights it
may have to obtain a deficiency or other monetary judgment against either the
Issuer or any of its principals, directors, officers, beneficial owners,
employees or agents (whether disclosed or undisclosed) or their respective
assets (other than the Trust Estate). The foregoing provisions of this paragraph
shall not (i) prevent recourse to the Trust Estate or any Person (other than the
Issuer or the Owner Trustee (as such or in its individual capacity)) for the
sums due or to become due under any security, instrument or agreement which is
part of the Trust Estate, (ii) constitute a waiver, release or discharge of any
indebtedness or obligation evidenced by this Note or secured by the Indenture,
but the same shall continue until paid or discharged, or (iii) prevent the
Indenture Trustee from exercising its rights with respect to the Grant, pursuant
to the Indenture, of the Issuer's rights under the Contribution Agreement and
the Sale and Servicing Agreement. It is further understood that the foregoing
provisions of this paragraph shall not limit the right of any Person to name the
Indenture Trustee in its capacity as Indenture Trustee under the Indenture or
the Issuer as a party defendant in any action or suit or in the exercise of any
remedy under this Note or the Indenture, so long as no judgment in the nature of
a deficiency judgment or seeking personal liability shall be asked for or (if
obtained) enforced. It is expressly understood that all such liability is hereby
expressly waived and released to the extent provided herein as a condition of,
and as a consideration for, the execution of the Indenture and the issuance of
this Note.
The remedies of the Holder hereof as provided herein, or in the Indenture
or the other Transaction Documents, shall be cumulative and concurrent and may
be pursued solely against the assets of the Trust Estate. No failure on the part
of the Noteholder in exercising any right or remedy hereunder shall operate as a
waiver or release thereof, nor shall any single or partial exercise of any such
right or remedy preclude any other further exercise thereof or the exercise of
any other right or remedy hereunder.
Reference is hereby made to the Indenture, a copy of which is on file with
the Indenture Trustee, for the provisions, among others, with respect to (i) the
nature and extent of the rights, duties and obligations of the Indenture
Trustee, the Issuer and the Noteholder; (ii) the terms upon which this Note is
executed and delivered; (iii) the collection and disposition of the Scheduled
Obligor Payments; (iv) a description of the Trust Estate; (v) the modification
or amendment of the Indenture; (vi) other matters; and (vii) the definition of
capitalized terms used in this Note that are not defined herein; to all of which
the Noteholder assents by the acceptance of this Note.
THIS NOTE IS ISSUED PURSUANT TO THE INDENTURE AND IT AND THE INDENTURE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS (INCLUDING, WITHOUT LIMITATION,
Section 5-1401 AND Section 5-1402 OF
THE GENERAL OBLIGATIONS LAWS, BUT OTHERWISE WITHOUT GIVING EFFECT TO PRINCIPLES
OF CONFLICT OF LAWS).
REFERENCE IS HEREBY MADE TO THE PROVISIONS OF THE INDENTURE AND SUCH
PROVISIONS ARE HEREBY INCORPORATED BY REFERENCE AS IF FULLY SET FORTH HEREIN.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed as of the date set forth below.
BAY VIEW 2005 WAREHOUSE TRUST, as Issuer
By: Wilmington Trust Company, not in its
individual capacity, but solely as Owner
Trustee
By:_______________________________
Name
Title:
Schedule to
Bay View 2005 Warehouse Trust
Automobile Receivables-Backed Notes, Series 2005-1
DATE OF SCHEDULED NOTE NOTE
FUNDING OR ADVANCE NOTE PRINCIPAL PRINCIPAL PRINCIPAL
PAYMENT AMOUNT PAYMENT PREPAYMENT BALANCE
_______, 2005 $_________ $_____________ $_________ $________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
______, 200__ __________ ______________ __________ _________
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY OR
TAXPAYER IDENTIFICATION NUMBER OF ASSIGNEE)
___________________________________
___________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address of Assignee)
________________________________________________________________________________
the within Note, and all rights thereunder, and hereby does irrevocably
constitute and appoint
______________________________________________________________________________
Attorney to transfer the within Note on the books kept for registration thereof,
with full power of substitution in the premises.
Date:___________________
_________________________________
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within
Note in every particular, without
alteration or enlargement or any change
whatever.
Exhibit E
Form of Transferee Letter
(Date)
Bay View 2005 Warehouse Trust
______% Automobile Receivables-Backed Notes, Series 2005-1
Bay View Warehouse Corporation
0000 Xxxxxxx Xxxxx Xxx Xxxxx,
XX 00000 Attention:__________
JPMorgan Chase Bank, N.A.
000 Xxxxxx Xx., 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Structured Finance - Bay View 2005
The undersigned (the "Purchaser") understands that the purchase of the
above-referenced Notes (the "Notes") may be made only by institutional investors
which are "accredited investors" under Regulation D, as promulgated under the
Securities Act of 1933, as amended (the "1933 Act"). The Purchaser represents
that the Purchaser is an institutional "accredited investor" within the meaning
of such definition. The Purchaser hereby represents, and with respect to
paragraphs 1, 5, 6 and 8 acknowledges, additionally as follows:
1. The Purchaser understands that the Notes are being issued only in
transactions not involving any public offering within the meaning of the 1933
Act and Section 3(c)(1) of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
2. The Purchaser is considered to be "one person" (or such other number of
persons as the Issuer may agree to) for purposes of calculating the number of
beneficial owners of securities of Bay View 2005 Warehouse Trust (the "Issuer")
under Section 3(c)(1) of the Investment Company Act.
3. The Purchaser is an institutional "accredited investor" as defined in
Rule 501(a)(1), (2), (3) or (7) under the 1933 Act (an "Institutional Accredited
Investor") and has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of its investment in
the Notes, and the Purchaser and any accounts for which the Purchaser is acting
are each able to bear the economic risk of its investment.
4. The Notes are being purchased for the Purchaser's own account or for
one or more accounts (each of which is an Institutional Accredited Investor) as
to each of which Purchaser or such other Institutional Accredited Investor
exercises sole investment discretion.
5. If the Purchaser (or any other fiduciary or agent representing any such
account) decides to sell any Note prior to maturity, the Purchaser acknowledges
that (a) such Note may be sold only in a transaction exempt from registration
under the 1933 Act, including but not limited
to a "qualified institutional buyer" pursuant to Rule 144A under the 1933 Act,
or pursuant to a valid registration under the 1933 Act (and the Purchaser
acknowledges that the Issuer has no obligation to so register the Notes) and (b)
the Purchaser must comply with the transfer restrictions contained in the
Indenture (defined below).
6. The Purchaser understands that the Notes will bear a legend
substantially as set forth in the form of the Note included in the Indenture
(the "Indenture") dated as of June 20, 2005, among the Issuer and JPMorgan Chase
Bank, N.A., as Indenture Trustee (the "Indenture Trustee").
7. Either (a) the Purchaser will not acquire the Notes with the assets of
any "employee benefit plan" as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") which is subject to
Title I of ERISA or any "plan" as defined in Section 4975 of the Code (each such
entity, a "Benefit Plan") or (b) no non-exempt "prohibited transaction" under
Section 406 of ERISA or Section 4975 of the Code will occur in connection with
its acquisition or holding of the Notes.
8. The Purchaser acknowledges that transfer of a Note can only be effected
in accordance with the Indenture.
9. The Purchaser represents that the Purchaser is a U.S. Person.
The representations and warranties and acknowledgments contained herein
shall be binding upon the successors of the undersigned.
Executed this _____ day of _________, ________.
By:______________________________
Signature of Purchaser
______________________________________ _________________________________
Purchaser's Name and Title (Print) Signature of Purchaser
______________________________________
Address of Purchaser
______________________________________
Purchaser's Taxpayer Identification or
Social Security Number
2
