EXECUTION COPY
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ARCADIA RECEIVABLES CONDUIT CORP.
____________________
INDENTURE
Dated as of December 3, 1996
_____________________________
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee and Collateral Agent
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TABLE OF CONTENTS
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PARTIES
RECITALS OF THE ISSUER
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions......................................... 1
Act........................................................... 2
Advance....................................................... 2
Agent......................................................... 2
Assignment Agreement.......................................... 2
Authenticating Agent.......................................... 2
Authorized Officer............................................ 2
Board of Directors............................................ 2
Board Resolution.............................................. 2
BofA.......................................................... 3
Closing Date.................................................. 3
Code.......................................................... 3
Collateral.................................................... 3
Collateral Agent.............................................. 3
Commercial Paper Notes........................................ 3
Commission.................................................... 3
Controlling Party............................................. 3
Corporate Trust Office........................................ 3
corporation................................................... 3
covenant defeasance........................................... 4
CP Composite Rate............................................. 4
CP Rate....................................................... 4
Default....................................................... 4
defeasance.................................................... 4
Draw Date..................................................... 4
Event of Default.............................................. 4
Exchange Act.................................................. 4
Executive Officer............................................. 4
Holder........................................................ 4
Noteholder.................................................... 4
Indebtedness.................................................. 4
Indenture..................................................... 5
Indenture Supplement.......................................... 5
Insurer Notice Date........................................... 5
Insurer Secured Obligations................................... 5
Interest Period............................................... 5
Issuer........................................................ 5
Issuer Request" or "Issuer Order.............................. 5
Letter Agreement.............................................. 6
Lien.......................................................... 6
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Liquidity Asset Purchase Agreement............................ 6
Maturity Date................................................. 6
Maximum Authorized Amount..................................... 6
Maximum Interest Rate......................................... 6
Note Interest Rate............................................ 6
Note Policy................................................... 7
Note Register................................................. 7
Note Registrar................................................ 7
Noteholders' Interest Carryover Shortfall..................... 7
Noteholders' Interest Distributable Amount.................... 7
Noteholders' Principal Distributable Amount................... 7
Notes......................................................... 7
Officers' Certificate......................................... 7
Opinion of Counsel............................................ 7
Original Issue Date........................................... 8
Outstanding................................................... 8
Outstanding Amount............................................ 9
Paying Agent.................................................. 9
Payment Date.................................................. 9
Permitted Assignee............................................ 9
Person........................................................ 9
Policy Claim Amount........................................... 9
Predecessor Note.............................................. 9
Preference Claim.............................................. 9
Prepayment Price.............................................. 9
Proceeding.................................................... 9
Program Support Provider...................................... 9
Property...................................................... 10
Rating Agency Condition....................................... 10
RCC........................................................... 10
Record Date................................................... 10
Registered Holder............................................. 10
Related Documents............................................. 10
Responsible Officer........................................... 10
Scheduled Payments............................................ 10
Secured Obligations........................................... 10
Secured Parties............................................... 10
Securities Act................................................ 10
Servicing Agreement........................................... 11
State......................................................... 11
Termination Date.............................................. 11
Tranche....................................................... 11
Trustee....................................................... 11
Trustee Secured Obligations................................... 11
Trust Estate.................................................. 11
Trust Indenture Act........................................... 11
UCC........................................................... 11
U.S. Government Obligations................................... 11
Vice President................................................ 11
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Section 102. Compliance Certificates and Opinions................ 13
Section 103. Form of Documents Delivered to Trustee.............. 14
Section 104. Acts of Holders..................................... 15
Section 105. Notices Etc., to Trustee, Issuer and Rating
Agencies............................................ 15
Section 106. Notice to Holders; Waiver........................... 16
Section 107. Alternate Payment and Notice Provisions............. 17
Section 108. Conflict with Trust Indenture Act................... 17
Section 109. Effect of Headings and Table of Contents............ 17
Section 110. Successors and Assigns.............................. 18
Section 111. Separability Clause................................. 18
Section 112. Benefits of Indenture............................... 18
Section 113. Governing Law....................................... 18
Section 114. Legal Holidays...................................... 18
Section 115. No Bankruptcy Petition Against the Issuer or
the Seller.......................................... 18
ARTICLE TWO
Security
Section 201. Collateral.......................................... 19
Section 202. Limited Recourse to Issuer.......................... 19
Section 203. Authorization of Actions to be Taken by the
Trustee............................................. 20
Section 204. Termination of Security Interests................... 20
ARTICLE THREE
Note Forms
Section 301. Forms Generally..................................... 20
Section 302. Form of Trustee's Certificate of
Authentication...................................... 21
Section 303. Securities Legend................................... 21
ARTICLE FOUR
The Notes
Section 401. Amount Limited; Issuable in Tranches................ 22
Section 402. Maturity, Principal Payments and
Denominations....................................... 22
Section 403. Interest Payments................................... 23
Section 404. Execution, Authentication, Delivery and
Dating.............................................. 24
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Section 405. Temporary Notes..................................... 25
Section 406. Registration, Registration of Transfer and Exchange,
Transfer Restrictions............................... 25
Section 407. Mutilated, Destroyed, Lost and Stolen Notes......... 27
Section 408. Payment of Interest; Interest Rights
Preserved........................................... 28
Section 409. Persons Deemed Owners............................... 28
Section 410. Cancellation........................................ 28
ARTICLE FIVE
Accounts, Disbursements and Releases
Section 501. Collection of Money................................. 29
Section 502. General Provisions Regarding Accounts............... 29
ARTICLE SIX
Remedies
Section 601. Events of Default................................... 30
Section 602. Rights upon Event of Default........................ 31
Section 603. Collection of Indebtedness and Suits for Enforcement
by Trustee; Authority of Controlling Party.......... 32
Section 604. Limitation on Suits................................. 34
Section 605. Unconditional Right of Holders to Receive
Principal and Interest.............................. 35
Section 606. Restoration of Rights and Remedies.................. 36
Section 607. Rights and Remedies Cumulative...................... 36
Section 608. Delay or Omission Not Waiver........................ 36
Section 609. Control by Holders.................................. 36
Section 610. Waiver of Past Defaults............................. 37
Section 611. Undertaking for Costs............................... 37
Section 612. Waiver of Stay or Extension Laws.................... 38
Section 613. Action on Notes..................................... 38
Section 614. Performance and Enforcement of Certain
Obligations......................................... 38
Section 615. Claims Under Note Policy............................ 39
Section 616. Preference Claims................................... 40
ARTICLE SEVEN
The Trustee
Section 701. Certain Duties and Responsibilities................. 41
Section 702. Notice of Defaults.................................. 44
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Section 703. Certain Rights of Trustee........................... 44
Section 704. Not Responsible for Recitals or Issuance of
Notes............................................... 45
Section 705. May Hold Notes...................................... 45
Section 706. Money Held in Trust................................. 45
Section 707. Compensation and Indemnity.......................... 46
Section 708. Disqualification; Conflicting Interests............. 46
Section 709. Corporate Trustee Required; Eligibility............. 47
Section 710. Resignation and Removal; Appointment of
Successor........................................... 47
Section 711. Acceptance of Appointment by Successor.............. 48
Section 712. Merger, Conversion, Consolidation or
Succession to Business.............................. 49
Section 713. Preferential Collection of Claims Against
Issuer.............................................. 49
Section 714. Appointment of Authenticating Agent................. 49
Section 715. Paying Agent........................................ 51
Section 716. Appointment of Co-Trustee or Separate
Trustee............................................. 52
ARTICLE EIGHT
Holders' Lists and Reports by Trustee and Issuer
Section 801. Issuer to Furnish Trustee Names and Addresses
of Holders.......................................... 53
Section 802. Preservation of Information; Communications
to Holders.......................................... 53
Section 803. Reports by Trustee.................................. 54
Section 804. Reports by Issuer................................... 54
ARTICLE NINE
Indenture Supplements
Section 901. Indenture Supplements Without Consent of
Holders............................................. 55
Section 902. Indenture Supplements with Consent of
Holders............................................. 57
Section 903. Execution of Indenture Supplements.................. 58
Section 904. Effect of Indenture Supplements..................... 59
Section 905. Reference in Notes to Indenture Supplements......... 59
Section 906. Rating Agency Confirmation.......................... 59
ARTICLE TEN
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Covenants
Section 1001. Payment of Principal and Interest................... 59
Section 1002. Maintenance of Office or Agency..................... 59
Section 1003. Consolidation, Merger, Sale of Assets............... 60
Section 1004. Negative Covenants.................................. 62
Section 1005. Performance of Obligations; Servicing of
Receivables......................................... 63
Section 1006. Other Indebtedness.................................. 64
Section 1007. Guarantees, Loans, Advances and Other
Liabilities......................................... 64
Section 1008. Dividends; Distributions............................ 65
Section 1009. Money for Note Payments to Be Held in Trust......... 65
Section 1010. Corporate Existence................................. 66
Section 1011. Payment of Taxes and Other Claims................... 67
Section 1012. Notice of Events of Default......................... 67
Section 1013. Amendment of Certificate of Incorporation
and Bylaws.......................................... 67
Section 1014. Statement as to Compliance.......................... 67
Section 1015. Rule 144A Information............................... 68
Section 1016. Further Instruments and Acts........................ 68
Section 1017. Compliance with Laws................................ 68
Section 1018. Income Tax Characterization......................... 68
ARTICLE ELEVEN
Prepayment of Notes
Section 1101. Prepayment.......................................... 69
Section 1102. Notice of Prepayment in Whole of a Tranche.......... 69
Section 1103. Deposit of Prepayment Price......................... 69
Section 1104. Notes Prepayable in Whole on any Date............... 70
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
Section 1201. Issuer's Option to Effect Defeasance or
Covenant Defeasance................................. 70
Section 1202. Defeasance and Discharge............................ 70
Section 1203. Covenant Defeasance................................. 71
Section 1204. Conditions to Defeasance or Covenant
Defeasance.......................................... 71
Section 1205. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other Miscellaneous
Provisions.......................................... 73
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TESTIMONIUM
SIGNATURES
ACKNOWLEDGMENTS
EXHIBIT A Form of Note
EXHIBIT B Form of Note Policy
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INDENTURE, dated as of December 3, 1996, between ARCADIA RECEIVABLES
CONDUIT CORP., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Issuer"), and NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, a national banking association duly organized and existing
under the laws of the United States of America, in its capacities as Trustee
(the "Trustee") and as Collateral Agent (as defined below) and not in its
individual capacity.
RECITALS OF THE ISSUER
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Issuer's Floating Rate
Automobile Receivables-Backed Notes (the "Notes"):
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its Notes to be
issued in one or more tranches as in this Indenture provided.
Financial Security Assurance Inc. (the "Security Insurer") has issued
and delivered a financial guaranty insurance policy, dated the Closing Date
(with endorsements, the "Note Policy"), pursuant to which the Security Insurer
guarantees certain Scheduled Payments, as defined in the Note Policy.
As an inducement to the Security Insurer to issue and deliver the Note
Policy, the Issuer and the Security Insurer have executed and delivered the
Insurance and Indemnity Agreement, dated as of December 3, 1996 (as amended from
time to time, the "Insurance Agreement"), among the Security Insurer, the
Issuer, Olympic Receivables Finance Corp. and Olympic Financial Ltd.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. DEFINITIONS.
(a) For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
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(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act (as hereinafter defined), either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision, or is not exclusive and including
means including without limitation.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Advance" has the meaning specified therefor in the Repurchase
Agreement.
"Agent" means BofA as administrator of RCC and as agent for certain
liquidity purchasers under the Liquidity Asset Purchase Agreement, and its
successors and assigns in such capacity under the Note Purchase Agreement.
"Assignment Agreement" has the meaning specified therefor in the
Purchase Agreement.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Notes.
"Authorized Officer" means, with respect to the Issuer, any President
or Vice President of the Issuer.
"Board of Directors" means either the board of directors of the Issuer
or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Issuer to have been duly adopted by
the Board of Directors and to
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be in full force and effect on the date of such certification, and delivered
to the Trustee.
"BofA" means Bank of America National Trust and Savings Association
and its successors.
"Closing Date" means December 3, 1996.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified therefor in the Security
Agreement.
"Collateral Agent" has the meaning specified therefor in the Security
Agreement.
"Commercial Paper Notes" means the short-term promissory notes issued
or to be issued in the United States commercial paper market to fund the
purchase of the Notes, which unless otherwise agreed to in writing by the
Seller, the Agent and the Security Insurer, shall mature within 120 days from
the date of issuance of such notes.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Controlling Party" has the meaning specified therefor in the Security
Agreement.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be administered, such
office at the date of the execution of this Indenture is located at Xxxxx Xxxxxx
xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Corporate
Trust Services - Asset-Backed Administration; or at such other address as the
Trustee may designate from time to time by notice to the Agent, the Noteholders,
the Security Insurer and the Issuer, or the principal corporate trust office of
any successor Trustee (the address of which the successor Trustee will notify
the Agent, the Noteholders, the Security Insurer and the Issuer).
"corporation" includes corporations, associations, companies and
business trusts.
"covenant defeasance" has the meaning specified in Section 1203.
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"CP Composite Rate" means for any date of determination, the Money
Market Yield of the rate set forth in the weekly statistical release designated
as H.15(519), or any successor publication, published by the Board of Governors
of the Federal Reserve System ("H.15(519)") for the 30 day maturity under the
caption "Commercial Paper." If such rate cannot be determined, the Offshore
Rate.
"CP Rate" means, for any Interest Period or any shorter period for
which interest accrues, and with respect to any portion of the principal amount
of the Notes as to which the Noteholders' funding of their purchase or carrying
thereof is provided by Commercial Paper Notes, the rate of interest per annum
determined in arrears in good faith by the Agent equal to the Noteholders' cost
of funding the purchase or carrying of such portion of the Notes, which shall be
equal to the weighted daily average interest rate payable in respect of such
Commercial Paper Notes during such period (determined in the case of discount
Commercial Paper Notes by converting the discount to an interest bearing
equivalent rate per annum), plus applicable placement fees and commissions, but
excluding any other fees related to such funding.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"defeasance" has the meaning specified in Section 1202.
"Draw Date" means, with respect to any Deficiency Claim Date, the
third Business Day preceding the related Distribution Date.
"Event of Default" has the meaning specified in Section 601.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, Managing Director, any Vice President, any Responsible
Officer, the Secretary or the Treasurer of such corporation.
"Holder" or "Noteholder" means RCC and any Permitted Assignee, and, in
any case, in whose name a Note is registered in the Note Register.
"Indebtedness" means, with respect to any Person at any time, (a)
indebtedness or liability of such Person for borrowed money whether or not
evidenced by bonds, debentures, notes or other instruments, or for the deferred
purchase price of property or services (including trade obligations); (b)
obligations of such Person as lessee under leases which should have been or
should be, in accordance with generally accepted accounting
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principles, recorded as capital leases; (c) current liabilities of such
Person in respect of unfunded vested benefits under plans covered by Title IV
of ERISA; (d) obligations issued for or liabilities incurred on the account
of such Person; (e) obligations or liabilities of such Person arising under
acceptance facilities; (f) obligations of such Person under any guarantees,
endorsements (other than for collection or deposit in the ordinary course of
business) and other contingent obligations to purchase, to provide funds for
payment, to supply funds to invest in any Person or otherwise to assure a
creditor against loss; (g) obligations of such Person secured by any lien on
property or assets of such Person, whether or not the obligations have been
assumed by such Person; or (h) obligations of such Person under any interest
rate or currency exchange agreement.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular Tranche of Notes established as
contemplated by Section 401.
"Indenture Supplement" means the supplement to this Indenture relating
to a Tranche of Notes, and any other supplemental indentures executed pursuant
to Article Nine.
"Insurer Notice Date" has the meaning specified therefor in the
Repurchase Agreement.
"Insurer Secured Obligations" has the meaning specified therefor in
the Security Agreement.
"Interest Period" means, with respect to any Distribution Date, the
Monthly Period immediately preceding such Distribution Date (or, in the case of
the first Distribution Date, the period from and including the Closing Date to
and excluding the first day of the succeeding calendar month; PROVIDED, that the
final Interest Period shall commence on the first day of the calendar month
immediately preceding the month in which the Final Distribution Date occurs and
shall end on, but shall exclude, the Final Distribution Date.
"Issuer" means the Person named as the "Issuer" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Issuer" shall mean
such successor Person.
"Issuer Request" or "Issuer Order" means a written request or order
signed in the name of the Issuer by its Chairman of the Board, its Vice
Chairman, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, or signed on behalf of the
Issuer by a duly appointed agent of the Issuer and delivered to the Trustee.
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"Letter Agreement" has the meaning specified in Section 707(a).
"Lien", in respect of the Property of any Person, means any ownership
interest of any other Person, any mortgage, deed of trust, hypothecation,
pledge, lien, security interest, grant of a power to confess judgment, filing of
any financing statement, charge or other encumbrance or security arrangement of
any nature whatsoever, including, without limitation, any conditional sale or
title retention arrangement, and any assignment, deposit arrangement,
consignment or lease intended as, or having the effect of, security.
"Liquidity Asset Purchase Agreement" means that certain Liquidity
Asset Purchase Agreement dated as of December 3, 1996 among the purchasers from
time to time party thereto, BofA as administrator and liquidity agent, and RCC,
as amended, supplemented or otherwise modified from time to time.
"Maturity Date", when used with respect to any Note, means the date on
which the principal of such Note or an installment of principal becomes due and
payable as therein or herein provided, whether on the Final Distribution Date or
by declaration of acceleration, prepayment or otherwise.
"Maximum Authorized Amount" has the meaning specified therefor in the
Note Purchase Agreement.
"Maximum Interest Rate" means as of the date on which an Amortization
Event occurs, the greater of (I) the sum of (i) the Two Year Treasury Yield
determined as of such day by the Trustee pursuant to Section 403(b) plus (ii)
0.60% plus (iii) the Basis Fee Percent and (II) the weighted average APR
(weighted based on the aggregate outstanding Principal Balance of the relevant
Receivables as of the immediately preceding Accounting Date PLUS the outstanding
Principal Balance of any Receivables transferred by the Seller to the Issuer
since such Accounting Date and LESS the outstanding Principal Balance of any
Receivables that become Purchased Receivables or Repurchased Receivables since
such Accounting Date) of Qualifying Receivables, MINUS 6.50%, MINUS the Total
Expense Percent.
"Note Interest Rate" means with respect to each Interest Period or any
shorter period for which interest accrues, a per annum rate determined in
arrears of the daily weighted average cost of funding of the Noteholders'
purchase or carrying of the Notes during such Interest Period or any shorter
period for which interest accrues, which shall be: (A) prior to the occurrence
of an Amortization Event, (i) the CP Rate plus 0.20%, to the extent the purchase
or carrying of the Notes issued pursuant to this Indenture is funded by the
Noteholders by issuing Commercial Paper Notes, or (ii) the Offshore Rate plus
the Applicable Margin, to the extent the purchase or carrying of the Notes
issued pursuant to this Indenture is not so funded by the Noteholders and (B)
after the occurrence of an Amortization
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Event, the Reference Rate; PROVIDED, that, from and after the occurrence of
an Amortization Event, the Note Interest Rate shall not exceed the Maximum
Interest Rate, and the Agent may, on any Business Day, by prior written
notice to the Issuer, the Trustee, the Seller, the Servicer and the Security
Insurer, convert the Note Interest Rate to a fixed interest rate not to
exceed the Maximum Interest Rate as of the close of business on the date such
Amortization Event occurs, such fixed interest rate not to exceed the Two
Year Treasury Yield (as of the close of business on the date on the date such
Amortization Event occurs) plus 0.60% PLUS the Basis Fee Percent.
"Note Policy" means the Financial Guaranty Insurance Policy No.
50528-N issued by the Security Insurer with respect to the Notes, including any
endorsements thereto, in the form of Exhibit B.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 406.
"Noteholders' Interest Carryover Shortfall" means, with respect to a
Payment Date, the Advance Interest Carryover Shortfall with respect to such
date.
"Noteholders' Interest Distributable Amount" means, with respect to a
Payment Date, the Advance Interest Distributable Amount with respect to such
date.
"Noteholders' Principal Distributable Amount" means, with respect to a
Payment Date, the Advance Principal Distributable Amount with respect to such
date.
"Notes" has the meaning stated in the first recital of this Indenture
and more particularly means any Notes authenticated and delivered under this
Indenture.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Deputy Chairman, the Comptroller, a Vice Chairman, the President
or a Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Issuer, or signed on behalf of the Issuer by a duly
appointed agent of the Issuer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel who may,
except as otherwise expressly stated in this Indenture, be employees of or
counsel for the Issuer and who shall be acceptable to the Trustee and, if
addressed to the Security Insurer, satisfactory to the Security Insurer, and
which shall comply with any applicable requirements of Section 102, and shall be
in form and substance satisfactory to the Trustee, and if addressed to the
Security Insurer, satisfactory to the Security Insurer.
"Original Issue Date" means, for any Tranche of Notes, the date of
original issue of such Tranche of Notes.
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"Outstanding", when used with respect to Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture EXCEPT,
(i) Notes theretofore cancelled by the Note Registrar or delivered to
the Note Registrar for cancellation; and
(ii) Notes for whose payment or prepayment money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
for the Holders of such Notes; and
(iii) Notes which have been defeased pursuant to Section 1202 hereof;
and
(iv) Notes which have been paid pursuant to Section 407 or in exchange
for or in lieu of which other Notes have been authenticated and delivered
pursuant to this Indenture, other than any such Notes in respect of which
there shall have been presented to the Trustee proof satisfactory to it
that such Notes are held by a bona fide purchaser in whose hands such Notes
are valid obligations of the Issuer;
PROVIDED, HOWEVER, that Notes which have been paid with proceeds of the Note
Policy shall continue to remain Outstanding for purposes of this Indenture until
the Security Insurer has been paid as subrogee hereunder or reimbursed pursuant
to the Insurance Agreement as evidenced by a written notice from the Security
Insurer delivered to the Trustee, and the Security Insurer shall be deemed to be
the Holder thereof to the extent of any payments thereon made by the Security
Insurer; PROVIDED FURTHER, HOWEVER, that in determining whether the Holders of
the requisite principal amount of the Outstanding Notes have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or under
any related document, Notes owned by the Issuer or any other obligor upon the
Notes, the Seller or any Affiliate of any of the foregoing shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that the Trustee
knows to be so owned shall be so disregarded. Notes so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Notes and that the pledgee is not the Issuer, any other obligor upon the
Notes, the Seller or any Affiliate of the Issuer or of any of the foregoing
Persons.
"Outstanding Amount" means the aggregate principal amount of all Notes
Outstanding at the date of determination after giving effect to all
distributions of principal on such date of determination.
"Paying Agent" means the Trustee or any other Person that meets the
eligibility standards for the trustee specified in
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Section 709 and, so long as no Insurer Default shall have occurred and be
continuing, is consented to by the Security Insurer and is authorized by the
Issuer to make the distributions from the Note Distribution Account,
including payment of principal of or interest on the Notes on behalf of the
Issuer.
"Payment Date" means a Distribution Date.
"Permitted Assignee" means, collectively, one or more banks or other
institutions party to the Liquidity Asset Purchase Agreement from time to time
and any other Program Support Provider.
"Person" means any individual, corporation, estate partnership, joint
venture, association, limited liability company, joint-stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"Policy Claim Amount" has the meaning specified in Section 615.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 406 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Preference Claim" has the meaning specified in Section 616.
"Prepayment Price" means an amount equal to (i) the outstanding
principal amount of the Notes being prepaid in whole PLUS (ii) accrued and
unpaid interest thereon at the Note Interest Rate to, but excluding, the date on
which such Notes are to be prepaid in whole PLUS (iii) any Breakage Fees.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Program Support Provider" means and includes any Person (other than
any customer of RCC) now or hereafter extending credit or having a commitment to
extend credit to or for the account of, or to make purchase from, RCC or issuing
a letter of credit, surety bond or other instrument to support any obligations
arising under or in connection with RCC's securitization program.
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
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"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 business days prior written notice
thereof and that each of the Rating Agencies shall have notified the Seller, the
Servicer, the Security Insurer, the Trustee and the Issuer in writing that such
action will not, in and of itself result in an increased capital charge to the
Security Insurer.
"RCC" means Receivables Capital Corporation, a Delaware corporation.
"Record Date" means, with respect to a Payment Date, the close of
business on the last Business Day immediately preceding such Payment Date.
"Registered Holder" means the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Related Documents" means the Notes, the Purchase Agreement, the
Repurchase Agreement, the Servicing Agreement, each Assignment Agreement, the
Custodian Agreement, the Note Policy, the Security Agreement, the Note Purchase
Agreement, the Spread Account Agreement, the Insurance Agreement, and the
Lockbox Agreement. The Related Documents executed by any party are referred to
herein as "such party's Related Documents," "its Related Documents" or by a
similar expression.
"Responsible Officer" means, with respect to the Trustee, any officer
of the Trustee assigned by the Trustee to administer its corporate trust affairs
relating to the Trust Estate.
"Scheduled Payments" has the meaning specified therefor in the Note
Policy.
"Secured Obligations" has the meaning specified therefor in the
Security Agreement.
"Secured Parties" has the meaning specified therefor in the Security
Agreement.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Servicing Agreement" means the Servicing Agreement, dated as of
December 3, 1996, among the Issuer, the Seller, Olympic Financial Ltd., in its
individual capacity and as Servicer, the Agent and Norwest Bank Minnesota,
National Association, as Backup Servicer, Collateral Agent and Trustee.
"State" means any one of the 00 Xxxxxx xx xxx Xxxxxx Xxxxxx xx Xxxxxxx
or the District of Columbia.
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"Termination Date" means the latest of (i) the expiration of the Note
Policy and the return of the Note Policy to the Security Insurer for
cancellation, (ii) the date on which the Security Insurer shall have received
payment and performance of all Insurer Secured Obligations and (iii) the date on
which the Trustee shall have received payment and performance of all Trustee
Secured Obligations.
"Tranche" with respect to any Notes means those Notes having the same
Original Issue Date.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include the Person who is then the Trustee hereunder.
"Trustee Secured Obligations" has the meaning specified therefor in
the Security Agreement.
"Trust Estate" means the assets and property rights that constitute
the Collateral.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time.
"UCC" means the Uniform Commercial Code as adopted in the State of New
York.
"U.S. Government Obligations" has the meaning specified in Section
1204(1).
"Vice President", when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President."
(b) Except as otherwise specified herein or as the context may
otherwise require, the following terms have the respective meanings set forth in
the Servicing Agreement as in effect on the Closing Date for all purposes of
this Indenture, and the definitions of such terms are equally applicable both to
the singular and plural forms of such terms:
Section of
Term Servicing Agreement
---- -------------------
Accounting Date........................................ Section 1.1
Advance Interest Distributable Amount.................. Section 1.1
Advance Principal Distributable Amount................. Section 1.1
Affiliate.............................................. Section 1.1
Amortization Event..................................... Section 1.1
Amortization Period.................................... Section 1.1
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Applicable Margin...................................... Section 1.1
APR.................................................... Section 1.1
Available Funds........................................ Section 1.1
Backup Servicer........................................ Section 1.1
Basis Fee Percent...................................... Section 1.1
Breakage Fee........................................... Section 1.1
Business Day........................................... Section 1.1
Collateral Agent....................................... Section 1.1
Collection Account..................................... Section 1.1
Custodian Agreement.................................... Section 1.1
Default Amount Distributable Amount.................... Section 1.1
Deficiency Claim....................................... Section 1.1
Deficiency Claim Date.................................. Section 1.1
Deficiency Notice...................................... Section 1.1
Determination Date..................................... Section 1.1
Distribution Date...................................... Section 1.1
Eligible Investments................................... Section 1.1
Final Distribution Date................................ Section 1.1
Financed Vehicle....................................... Section 1.1
Insurance Agreement.................................... Section 1.1
Insurance Agreement Event of Default................... Section 1.1
Insurer Default........................................ Section 1.1
Lockbox Agreement...................................... Section 1.1
Monthly Period......................................... Section 1.1
Moody's................................................ Section 1.1
Note Distribution Account.............................. Section 1.1
Note Majority.......................................... Section 1.1
Note Purchase Agreement................................ Section 1.1
Obligor................................................ Section 1.1
OFL.................................................... Section 1.1
Offshore Rate.......................................... Section 1.1
Principal Balance...................................... Section 1.1
Purchase Agreement..................................... Section 1.1
Purchased Receivable................................... Section 1.1
Qualifying Receivable.................................. Section 1.1
Rating Agency.......................................... Section 1.1
Receivable............................................. Section 1.1
Reference Rate......................................... Section 1.1
Repurchase Agreement................................... Section 1.1
Repurchased Receivable................................. Section 1.1
Revolving Period....................................... Section 1.1
Secured Accounts....................................... Section 1.1
Security Agreement..................................... Section 1.1
Security Insurer....................................... Section 1.1
Seller................................................. Section 1.1
Servicer............................................... Section 1.1
Servicer Termination Event............................. Section 1.1
Spread Account Agreement............................... Section 1.1
Spread Account Available Funds......................... Section 1.1
Spread Account Collateral Agent........................ Section 1.1
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Standard & Poor's...................................... Section 1.1
Total Expense Percent.................................. Section 1.1
Two Year Treasury Yield................................ Section 1.1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Issuer to the Trustee or the
Collateral Agent to take any action under any provision of this Indenture, other
than any request that the Trustee authenticate the Notes specified in such
request or the Trustee pay monies due and payable to the Issuer hereunder to the
Issuer's assignee specified in such request, the Trustee may require the Issuer
to furnish to the Trustee or the Collateral Agent, as the case may be, and to
the Security Insurer, (i) an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and (ii) 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 such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or
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covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officers'
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer 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
officer or officers of the Servicer, the Seller or the Issuer stating that the
information with respect to such factual matters is in the possession of such
Person, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Trustee, it is provided that the Issuer shall
deliver any document as a condition of the granting of such application, or as
evidence of the Issuer's compliance with any term hereof, it is intended that
the truth and accuracy, at the time of granting of such application or at the
effective date of such certificate or report (as the case may be), of the facts
and opinions stated in such document shall in such case be conditions precedent
to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Trustee's right to rely upon the truth and accuracy of
any statement or opinion contained in any such document as provided in Article
VII.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced
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thereby) are herein sometimes referred to as the "Act" of the Holders 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 701) conclusive in favor of the Trustee and
the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Trustee deems
sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Issuer in
reliance thereon, whether or not notation of such action is made upon such Note.
SECTION 105. NOTICES ETC., TO TRUSTEE, ISSUER AND RATING AGENCIES.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuer shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office,
(2) the Issuer by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Issuer addressed
to:
Arcadia Receivables Conduit Corp.
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Treasurer
or at any other address furnished in writing to the Trustee by the Issuer.
The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Trustee, or
(3) the Security Insurer by the Issuer or the Trustee shall be
sufficient for any purpose hereunder if in writing
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and mailed by registered mail or personally delivered or telexed or
telecopied to the recipient as follows:
Financial Security Assurance Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Surveillance Department
Telex No.: (000) 000-0000
Confirmation: (000) 000-0000
Telecopy Nos.: (000) 000-0000
(000) 000-0000
(In each case in which notice or other communication to the Security
Insurer refers to an Event of Default, a claim on the Note Policy or with
respect to which failure on the part of the Security Insurer to respond
shall be deemed to constitute consent or acceptance, then a copy of such
notice or other communication should also be sent to the attention of the
General Counsel and the Head-Financial Guaranty Group "URGENT MATERIAL
ENCLOSED.")
Notices required to be given to the Rating Agencies by the Issuer
or the Trustee shall be in writing, personally delivered or mailed by
certified mail, return receipt requested to (i) in the case of
Moody's, at the following address: Xxxxx'x Investors Service Inc., ABS
Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
(ii) in the case of Standard & Poor's, at the following address:
Standard & Poor's Ratings Group, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx,
Xxx Xxxx 00000, Attention of Asset Backed Surveillance Department; or
as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Note Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been duly given. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the 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 Holders shall be filed with the
- 16 -
Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any rights or obligations created
hereunder, and shall not under any circumstance constitute a Default or Event of
Default.
SECTION 107. ALTERNATE PAYMENT AND NOTICE PROVISIONS.
Notwithstanding any provision of this Indenture or any of the Notes to
the contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Trustee or any Paying Agent
to such Holder, that is different from the methods provided for in this
Indenture for such payments or notices. The Issuer will furnish to the Trustee
a copy of each such agreement and the Trustee will cause payments to be made and
notices to be given in accordance with such agreements.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If this Indenture is qualified under the Trust Indenture Act and any
provision hereof limits, qualifies or conflicts with another provision hereof
that is deemed to be included in and to govern this Indenture by any of the
provisions of the Trust Indenture Act, such provision deemed to be included
herein shall control.
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Issuer shall
bind its successors and assigns, whether so expressed or not.
All agreements by the Trustee in this Indenture shall bind its
successors.
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity,
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legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 112. BENEFITS OF INDENTURE.
The Security Insurer and its successors and assigns shall be a
third-party beneficiary of the provisions of this Indenture, and shall be
entitled to rely upon and directly to enforce such provisions of this
Indenture so long as no Insurer Default shall have occurred and be
continuing. Except as aforesaid, nothing in this Indenture or in the Notes,
express or implied, shall give to any Person, other than the parties hereto
and their successors hereunder, the Agent and the Holders, and any other
party secured hereunder, and any other Person with an ownership interest in
any part of the Trust Estate, any benefit or any legal or equitable right,
remedy or claim under this Indenture. The Security Insurer may disclaim any
of its rights and powers under this Indenture (in which case the Trustee may
exercise such right or power hereunder), but not its duties and obligations
under the Note Policy, upon delivery of a written notice to the Trustee.
SECTION 113. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 114. LEGAL HOLIDAYS.
In any case where the date on which any payment is due shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Notes) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date on
which nominally due, and no interest shall accrue on the amount to be so paid
for the period from and after any such nominal date.
SECTION 115. NO BANKRUPTCY PETITION AGAINST THE ISSUER OR THE SELLER.
The Trustee, by entering into this Indenture, and, notwithstanding the
provisions of Section 607, each Holder by its acceptance of a Note hereunder,
severally and not jointly, hereby covenants and agrees that, prior to the date
that is one year and four days after the payment in full of all outstanding
Notes, it will not institute against, join any other Person in instituting
against, the Seller or the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other similar proceeding under the laws
of the United States or any state of the United States.
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ARTICLE TWO
Security
SECTION 201. COLLATERAL.
In order to secure the due and punctual payment of the principal of
and interest on the Notes and all other Trustee Secured Obligations when and as
the same shall become due and payable, whether on a Payment Date, the Final
Distribution Date or by declaration of acceleration, prepayment or otherwise,
according to the terms of this Indenture and the Notes, the Issuer, pursuant to
the Security Agreement, has granted (or in the case of after-acquired property,
has agreed to grant) first priority perfected Liens on the Collateral to the
Collateral Agent, all for the benefit of the Holders, the Trustee and the other
Secured Parties.
SECTION 202. LIMITED RECOURSE TO ISSUER.
(a) The Trustee and each Holder by its acceptance of a Note
hereunder agree that the obligations of the Issuer hereunder, including,
without limitation, the obligation of the Issuer in respect of the Notes
shall be payable solely from the Trust Estate, and that neither the Trustee
nor any Holder shall look to any other Property or assets of the Issuer or to
any Affiliate, stockholder, employee, officer, director or incorporator of
the Issuer in respect of such obligations.
(b) The Issuer's obligation to pay certain fees or expenses under, or
claims arising out of, this Indenture shall be limited to moneys available to
the Issuer from the Collateral in accordance with the payment priority set forth
in the Servicing Agreement, and to the extent such funds are insufficient to pay
such fees or expenses, it shall not constitute a claim against the Issuer.
SECTION 203. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE.
(a) Subject to the rights of the Secured Parties under the Security
Agreement, the Trustee may take all actions it deems necessary or appropriate
in order to enforce or exercise its rights under the Security Agreement in
accordance with and subject to the provisions thereof. Such actions shall
include, but not be limited to, advising, instructing or otherwise directing
the Collateral Agent in connection with enforcing or effecting any term or
provision of the Security Agreement. Subject to the provisions thereof, the
Trustee shall have power to institute and to maintain suits and proceedings
to prevent any impairment of the Collateral by any acts which may be unlawful
or in violation of the Security Agreement or this Indenture, and suits and
proceedings to preserve or protect its interests and the interests of the
Holders in the Collateral (including power to institute and maintain suits or
proceedings to restrain the
- 19 -
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would
impair the security hereunder or be prejudicial to the interests of the
Holders or of the Trustee).
(b) The Trustee is authorized to receive any funds for the benefit of
the Holders distributed under the Servicing Agreement or the Security Agreement
and to make further distributions of such funds to the Holders according to the
provisions of this Indenture.
SECTION 204. TERMINATION OF SECURITY INTERESTS.
Upon the payment in full of all Trustee Secured Obligations, the
Trustee shall, with the consent of the Issuer and at the request of the Seller,
deliver a certificate to the Collateral Agent stating that all Trustee Secured
Obligations have been paid in full, in which case the Liens created by the
Security Agreement shall be released with respect to the Trustee Secured
Obligations.
ARTICLE THREE
Note Forms
SECTION 301. FORMS GENERALLY.
The Notes of each Tranche shall be in substantially the form set forth
in Exhibit A, or in such other form as shall be established by or pursuant to a
Board Resolution and in one or more Indenture Supplements, in each case 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 be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such Notes,
as evidenced by their execution of the Notes. If the form of Notes of any
Tranche is established by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Issuer and delivered to the Trustee at or prior to
the delivery of the Issuer Order contemplated by Section 404 for the
authentication and delivery of such Notes.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The Notes shall be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner (provided that if any Notes are
to be listed on any securities exchange, then in any such manner as may be
permitted by the
- 20 -
rules of any such securities exchange, all as determined by the officers
executing such Notes, as evidenced by their execution of such Notes).
SECTION 302. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Notes designated herein referred to in the
within-mentioned Indenture.
Norwest Bank Minnesota, National
Association, as Trustee
By__________________________
Authorized Signatory
SECTION 303. SECURITIES LEGEND.
Each Note issued hereunder will contain the following legend
limiting sales to "Qualified Institutional Buyers" within the meaning of Rule
144A of the Securities Act:
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND HAS NOT BEEN
APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR
REGULATORY AUTHORITY OF ANY STATE. THIS NOTE HAS BEEN OFFERED AND SOLD
PRIVATELY. THE HOLDER HEREOF ACKNOWLEDGES THAT THESE SECURITIES ARE
"RESTRICTED SECURITIES" THAT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT AND AGREES FOR THE BENEFIT OF THE ISSUER AND ITS AFFILIATES THAT THESE
SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) TO A PERMITTED ASSIGNEE WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR
(B) TO A PERMITTED ASSIGNEE PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (C) TO A
PERMITTED ASSIGNEE PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER SECTION 5 OF THE SECURITIES ACT, AND IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER JURISDICTION.
ARTICLE FOUR
The Notes
SECTION 401. AMOUNT LIMITED; ISSUABLE IN TRANCHES.
The aggregate principal amount of Notes which may be authenticated and
delivered and Outstanding at any time under
- 21 -
this Indenture is limited to the Maximum Authorized Amount. The Notes may be
issued in one or more Tranches.
No Tranche of Notes shall be issued under this Indenture unless (i) no
Default or Event of Default shall have occurred and be continuing, (ii) the
Amortization Period shall not have begun, (iii) the Insurer Notice Date shall
not have occurred and (iv) after giving effect to such issuance, the Outstanding
Amount of the Notes will not be greater than the aggregate principal amount of
the Advances that are outstanding.
All Notes shall be substantially identical except as to Original Issue
Date and denomination and except as may otherwise be provided in or pursuant to
the Board Resolution referred to in Section 301 and set forth in any Indenture
Supplement hereto.
All Notes issued under this Indenture shall be in all respects equally
and ratably entitled to the benefits hereof and secured by the Collateral
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. Payments of interest on the Notes and Default
Interest Distributable Amount shall be made pro rata among all Outstanding
Notes, without preference or priority of any kind. Except as provided in
Section 1101 concerning principal prepayments on the Notes, payments of
principal on the Notes shall be made pro rata among all Outstanding Notes,
without preference or priority of any kind.
SECTION 402. MATURITY, PRINCIPAL PAYMENTS AND DENOMINATIONS.
(a) The principal of each Note shall be payable in installments equal
to the sum of the Advance Principal Distributable Amount deposited in the Note
Distribution Account pursuant to Sections 3.6(a)(v) and 3.6(b)(v) of the
Servicing Agreement on each Payment Date with respect to the Amortization Period
and the amounts deposited in the Note Distribution Account pursuant to Sections
3.6(a)(viii) and 3.6(b)(viii) of the Servicing Agreement on each such Payment
Date. Subject to Section 602 and notwithstanding the foregoing, the entire
unpaid principal amount of the Notes shall be due and payable, if not previously
paid, on the date on which an Event of Default shall have occurred and be
continuing so long as an Insurer Default shall not have occurred and be
continuing or, if an Insurer Default shall have occurred and be continuing, on
the date on which an Event of Default shall have occurred and be continuing and
the Trustee or a Note Majority have declared the Notes to be immediately due and
payable in the manner provided in Section 602(a). All such principal payments
on the Notes shall be made pro rata to the Noteholders entitled thereto. The
Trustee shall notify the Person in whose name a Note is registered at the close
of business on the Record Date preceding the Payment Date on which the Issuer
expects that the final installment of principal of and interest on such Note
will be paid. Such notice shall be mailed no later than five days prior to such
final Payment Date
- 22 -
and shall specify that such final installment will be payable only upon
presentation and surrender of such Note and shall specify the place were such
Note may be presented and surrendered for payment of such installment.
Notices in connection with prepayments in whole of Notes shall be mailed,
couriered or sent by facsimile transmission to Noteholders as provided in
Section 1102.
(b) Promptly following the date on which all principal of and interest
on the Notes has been paid in full and the Notes have been surrendered to the
Trustee, the Trustee shall, if the Security Insurer has paid any amount in
respect of the Notes under the Note Policy that has not been reimbursed to it,
deliver such surrendered Notes to the Security Insurer.
(c) The Notes shall be issuable only in registered form and only in
denominations of $100,000 and any amount in excess thereof; PROVIDED, that the
foregoing shall not restrict or prevent the transfer in accordance with Section
406 of any Note having a remaining outstanding principal amount of less than
$100,000.
SECTION 403. INTEREST PAYMENTS.
(a) Interest on the unpaid principal amount of each Outstanding
Note shall be payable on each Payment Date at the Note Interest Rate for the
period from its Original Issue Date, or such later date to which interest has
been paid or duly provided for, to such Payment Date. Interest on the Notes
shall be computed on the basis of a 360-day year and actual days elapsed.
Except in connection with the prepayment of a Note, the first payment of
interest on a Note issued between the first day of a calendar month and the
Payment Date occurring in such calendar month will be made on the Payment
Date occurring in the next succeeding calendar month. In addition, on each
Payment Date with respect to any Interest Period or portion thereof after the
occurrence of an Amortization Event, the Default Amount Distributable Amount
shall be payable with respect to the Notes to the extent funds are available
therefor pursuant to Section 3.6(b)(vii) or (ix) of the Servicing Agreement.
(b) On each Business Day, the Trustee shall determine the Two Year
Treasury Yield and, in addition, upon the occurrence of an Amortization Event,
the Trustee shall determine the Maximum Interest Rate. On each Business Day,
prior to 12:00 noon, the Trustee shall send to the Servicer, by facsimile
transmission, notification of the Two Year Treasury Yield, the CP Composite Rate
and the Offshore Rate, and, on the date on which an Amortization Event occurs,
the Maximum Interest Rate. The Two Year Treasury Yield, the CP Composite Rate
and the Offshore Rate and, if applicable, the Maximum Interest Rate, may be
obtained by any Noteholder, the Agent or the Security Insurer by telephoning the
Trustee at its Corporate Trust Office at (000) 000-0000.
SECTION 404. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
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The Notes shall be executed on behalf of the Issuer by any of its
Authorized Officers. The signature of any of these officers on the Notes may be
manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture and receipt of the Note Policy, and upon satisfaction of all the
conditions set forth in Section 401, the Issuer may deliver Notes of any Tranche
executed by the Issuer to the Trustee or Authenticating Agent for
authentication, together with an Issuer Order for the authentication and
delivery of such Notes and an Officer's Certificate that all conditions
precedent for such issuance have been satisfied, and the Trustee in accordance
with the Issuer Order shall authenticate and make available for delivery such
Notes.
Each Note shall be dated the date of its authentication.
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 Trustee or the Authenticating Agent by manual signature, and
such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture. Notwithstanding the foregoing,
if any Note shall have been authenticated and delivered hereunder but never
issued and sold by the Issuer, and the Issuer shall deliver such Note to the
Trustee or the Authenticating Agent for cancellation as provided in Section 410
together with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such Note has
never been issued and sold by the Issuer, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 405. TEMPORARY NOTES.
Pending the preparation of definitive Notes of any Tranche, the Issuer
may execute, and upon Issuer Order the Trustee or the Authenticating Agent shall
authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, reproduced or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the
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officers executing such Notes may determine, as evidenced by
their execution of such Notes.
If temporary Notes of any Tranche are issued, the Issuer will cause
definitive Notes of that Tranche to be prepared without unreasonable delay.
After the preparation of definitive Notes of such Tranche, the temporary Notes
of such Tranche shall be exchangeable for definitive Notes of such Tranche upon
surrender of the temporary Notes of such Tranche at the office or agency of the
Issuer to be maintained as provided in Section 1002. Upon surrender for
cancellation of any one or more temporary Notes of any Tranche the Issuer shall
execute, and the Trustee or the Authenticating Agent shall authenticate and make
available for delivery, in exchange therefor a like principal amount of
definitive Notes of the same Tranche and tenor of authorized denominations.
Until so exchanged, the temporary Notes of any Tranche shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes of such
Tranche.
SECTION 406. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE, TRANSFER
RESTRICTIONS.
The Issuer shall cause to be kept a register (the "Note Register") in
which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Notes and of transfers of the Notes.
Norwest Bank Minnesota, National Association, is hereby initially appointed
"Note Registrar" for the purpose of registering Notes and transfers of the Notes
as herein provided. Upon any resignation of any Note Registrar, the Issuer
shall promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of the Note Registrar.
If a Person other than the Trustee is appointed by the Issuer as Note
Registrar, the Issuer will give the Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and any change in the
location, of the Note Registrar, and the Trustee shall have the right to inspect
the Note Register at all reasonable times and to obtain copies thereof, and the
Trustee shall have the right to rely upon a certificate executed on behalf of
the Note Registrar by an Executive Officer thereof as the names and addresses of
the Holders of the Notes and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 1002, the Issuer
shall execute, and the Trustee or the Authenticating Agent shall authenticate
and make available for delivery, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denominations and of a like
tenor and aggregate principal amount.
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At the option of the Holder, Notes may be exchanged for other Notes in
any authorized denominations, of a like tenor and aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange, the Issuer shall execute, and the
Trustee or the Authenticating Agent shall authenticate and make available for
delivery, the Notes which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Issuer or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Note Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing with such signature
guaranteed by a commercial bank or trust company located, or having a
correspondent located, in the City of New York or the city in which the
Corporate Trust Office is located, or by a member firm of a national securities
exchange, and such other documents as the Trustee may require.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Issuer or the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 404 or 905 not involving any transfer.
No Holder of a Note shall transfer its Note unless such transfer is
made (i) in accordance (A) with Rule 144A of the Securities Act, (B) an
exemption from registration provided by Rule 144 under the Securities Act (if
available) or any other exemption from the registration requirements under
Section 5 of the Securities Act provided the Issuer is provided an Opinion of
Counsel that such transfer is so exempt, and (C) the registration and
qualification requirements (or any applicable exemptions therefrom) under
applicable state securities laws and (ii) to a Permitted Assignee.
SECTION 407. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding. If there shall be delivered to the Issuer and
the Trustee and the Security Insurer (unless an Insurer Default shall have
occurred and be continuing) (i) evidence to their
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satisfaction of the destruction, loss or theft of any Note and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of any of them harmless, then, in the absence of notice to the Issuer,
the Trustee or the Security Insurer that such Note has been acquired by a
bona fide purchaser, the Issuer shall execute and upon its request the
Trustee shall authenticate and make available for delivery, in lieu of any
such destroyed, lost or stolen Note, a new Note of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Issuer in its discretion may, instead
of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Issuer or
the Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note of any Tranche issued pursuant to this Section 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.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 408. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Note that is payable, and is punctually paid or duly
provided for, on any Payment Date shall be paid to the Person in whose name that
Note (or one or more Predecessor Notes) is registered at the close of business
on the Record Date, by wire transfer in immediately available funds to the
account and number specified in the Note Register on such Record Date for such
Person or, if no such account or number is so specified, then by check mailed to
such Person's address as it appears in the Note Register on such Record Date.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
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SECTION 409. PERSONS DEEMED OWNERS.
Prior to due presentment of a Note for registration of transfer, the
Issuer, the Security Insurer, the Trustee and any agent of the Issuer, the
Security Insurer or the Trustee may treat the Person in whose name such Note is
registered as the owner of such Note for the purpose of receiving payment of
principal of and (subject to Section 408) interest on such Note and for all
other purposes whatsoever, whether or not such Note be overdue, and the Issuer,
the Security Insurer, the Trustee nor any agent of the Issuer, the Security
Insurer or the Trustee shall be affected by notice to the contrary.
SECTION 410. CANCELLATION.
Subject to Section 402(b), all Notes surrendered for payment,
prepayment in whole, registration of transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by the Trustee. Subject to Section 402(b), the Issuer may at
any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Notes previously authenticated
hereunder which the Issuer has not issued and sold, and all Notes so delivered
shall be promptly cancelled by the Trustee. No Notes shall be authenticated in
lieu of or in exchange for any Notes cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Notes held by
the Trustee shall be held or destroyed by the Trustee in accordance with its
standard retention or disposal policy as in effect at the time.
ARTICLE FIVE
Accounts, Disbursements and Releases
SECTION 501. COLLECTION OF MONEY.
Except as otherwise expressly provided herein, the Trustee may demand
payment or delivery of, and shall receive and collect, directly and without
intervention or assistance of any fiscal agent or other intermediary, all money
and other property payable to or receivable by the Trustee pursuant to this
Indenture. The Trustee shall apply all such money received by it as provided in
this Indenture. Subject to the provisions of the Security Agreement and except
as otherwise expressly provided in this Indenture, if any default occurs in the
making of any payment or performance under any agreement or instrument that is
part of this Indenture or the Notes, the Trustee may take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate Proceedings. Any such action shall be without
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prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article VI.
SECTION 502. GENERAL PROVISIONS REGARDING ACCOUNTS.
(a) On each Payment Date, the Trustee shall distribute all amounts
on deposit in the Note Distribution Account to Noteholders in respect of the
Notes based on the instructions set forth in the Servicer's Certificate to
the extent of amounts due and unpaid on the Notes for principal, interest and
Default Amount Distributable Amounts (if any), first to pay all accrued and
unpaid interest, then to pay principal on the Notes and then to pay any
Default Amount Distributable Amount.
(b) Subject to Section 701(c), the Trustee shall not in any way be
held liable by reason of any insufficiency in any of the Secured Accounts
resulting from any loss or any Eligible Investment included therein except for
losses attributable to the Trustee's failure to make payments on such Eligible
Investments issued by the Trustee, in its commercial capacity as principal
obligor and not as Trustee, in accordance with their terms.
ARTICLE SIX
Remedies
SECTION 601. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to the Notes,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest on any Note when the same
becomes due and payable, and such default shall continue for a period of
two Business Days (solely for purposes of this clause, a payment on the
Notes funded by the Security Insurer or the Collateral Agent shall be
deemed to be a payment made by the Issuer); or
(ii) default in the payment of or any installment of the principal on
any Note when the same becomes due and payable and such default shall
continue for a period of two Business Days (solely for purposes of this
clause, a payment on the Notes funded by the Security Insurer or the
Collateral Agent shall be deemed to be a payment made by the Issuer); or
(iii) so long as an Insurer Default shall not have occurred and be
continuing, an Insurance Agreement Event of
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Default shall have occurred; provided, however, that the occurrence of
an Insurance Agreement Event of Default may not form the basis of an
Event of Default unless the Security Insurer shall have delivered to
the Issuer and the Trustee and not rescinded a written notice
specifying that such Insurance Agreement Event of Default constitutes
an Event of Default under the Indenture; or
(iv) so long as an Insurer Default shall have occurred and be
continuing, default in the observance or performance or any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere
in this Section specifically dealt with), or any representation or warranty
of the Issuer made in this Indenture or in any certificate or other writing
delivered pursuant hereto or in connection herewith proving to have been
incorrect in any material respect as of the time when the same shall have
been made, and such default shall continue or not be cured, or the
circumstances or condition in respect of which such misrepresentation or
warranty was incorrect shall not have been eliminated or otherwise cured,
for a period of 30 days after there shall have been given, by registered or
certified mail, to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% of the Outstanding Amount of the
Notes, a written notice specifying such default or incorrect representation
or warranty and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(v) so long as an Insurer Default shall have occurred and be
continuing, the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial
part of the Trust Estate in an involuntary case under any applicable
Federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for
any substantial part of the Trust Estate, or ordering the winding-up or
liquidation of the Issuer's affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(vi) so long as an Insurer Default shall have occurred and be
continuing, the commencement by the Issuer of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Issuer to the entry of an
order for relief in an involuntary case under any such law, or the consent
by the Issuer to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Issuer for any substantial part of the Trust Estate, or the making
by the Issuer of any general assignment for the benefit of
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creditors, or the failure by the Issuer generally to pay its debts as such
debts become due, or the taking of action by the Issuer in furtherance of
any of the foregoing.
The Issuer shall deliver to the Trustee and the Security Insurer,
within five days after obtaining knowledge of the occurrence thereof, written
notice in the form of an Officers' Certificate of any event which with the
giving of notice and the lapse of time would become an Event of Default under
clause (iii), its status and what action the Issuer is taking or proposes to
take with respect thereto.
SECTION 602. RIGHTS UPON EVENT OF DEFAULT.
(a) If an Insurer Default shall not have occurred and be continuing
and an Event of Default shall have occurred and be continuing, the Notes
shall become immediately due and payable at par, together with accrued
interest thereon. In the event of any acceleration of the Notes by operation
of this Section 602, the Trustee shall continue to be entitled to make claims
under the Note Policy pursuant to Section 615 hereof for Scheduled Payments
on the Notes. Payments under the Note Policy following acceleration of the
Notes shall be applied by the Trustee:
FIRST: to Noteholders for amounts due and unpaid on the Notes for
interest, ratably, without preference or priority of any kind, according to
the amounts due and payable on the Notes for interest; and
SECOND: to Noteholders for amounts due and unpaid on the Notes for
principal, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Notes for principal;
(b) In the event the Notes are accelerated due to an Event of Default,
the Security Insurer shall have the right (in addition to its obligation to pay
Scheduled Payments on the Notes in accordance with the Note Policy), but not the
obligation, to make payments under the Note Policy or otherwise of interest and
principal due on the Notes, in whole or in part, on any date or dates following
such acceleration as the Security Insurer, in its sole discretion, shall elect.
(c) If an Insurer Default shall have occurred and be continuing and an
Event of Default shall have occurred and be continuing, the Trustee if so
requested in writing by the Agent shall, upon prior written notice to the Rating
Agencies, declare by written notice to the Issuer that the Notes become,
whereupon they shall become, immediately due and payable at par, together with
accrued interest thereon. Notwithstanding anything to the contrary in this
paragraph (c), if an Event of Default specified in Section 601(v) or (vi) shall
occur and be continuing when an Insurer Default has occurred and is continuing,
the Notes shall become immediately due and payable at par, together with accrued
interest thereon.
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SECTION 603. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE;
AUTHORITY OF CONTROLLING PARTY.
(a) Subject to the provisions of the Security Agreement, the Issuer
covenants that if the Notes are accelerated following the occurrence of an Event
of Default, the Issuer will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of the Notes, the whole amount then due and payable on
such Notes for principal and interest, with interest upon the overdue principal,
and, to the extent payment at such rate of interest shall be legally
enforceable, upon overdue installments of interest, at the Note Interest Rate
and in addition thereto such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee and its agents and counsel.
(b) If an Event of Default occurs and is continuing, the Trustee may
in its discretion but with the consent of the Controlling Party (except as
provided in Section 603(c) below), proceed to protect and enforce its rights and
the rights of the Noteholders, by such appropriate Proceedings as the Trustee
shall deem most effective to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Trustee by this Indenture or by
law.
(c) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust Estate, Proceedings under Title 11 of the United States
Code or any other applicable Federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Issuer or other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
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respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee, except as a result of negligence or bad
faith) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Notes in any election of a trustee, as standby
trustee or person performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property payable or
deliverable on such claims and to distribute all amounts received with
respect to the claims of the Noteholders and of the Trustee on their
behalf; and
(iv) to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee or the
Holders of Notes allowed in any judicial proceedings relative to the
Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of payments directly to such Noteholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or bad
faith.
(e) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such proceeding
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar Person.
(f) All rights of action and of asserting claims under this
Indenture, the Security Agreement, or under any of the Notes, may be enforced by
the Trustee without the possession of any of the Notes or the production thereof
in any trial or other Proceedings relative thereto, and any such action or
Proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes,
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(g) In any Proceedings brought by the Trustee (including any
Proceedings involving the interpretation of any provision of this Indenture or
the Security Agreement), the Trustee shall be held to represent all the Holders
of the Notes, and it shall not be necessary to make any Noteholder a party to
any such Proceedings.
SECTION 604. 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
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Notes;
(2) the Holders of not less than 25% of the Outstanding Amount
of the Notes shall have made written request to the Trustee to
institute such Proceeding in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
Proceeding;
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority of the Outstanding Amount of the Notes; and
(6) an Insurer Default shall have occurred and be continuing.
It is understood and intended that no one or more of the Holders shall
have any right in any manner whatever hereunder or under the Notes to
(i) affect, disturb or prejudice or the rights of the Holders of any other
Notes, (ii) obtain or seek to obtain priority or preference over any other such
Holder or (iii) enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all such
Holders.
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SECTION 605. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest (including, without limitation, any
Breakage Fee) on such Note on or after the respective due dates thereof
expressed in such Note or in this Indenture and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder; PROVIDED, HOWEVER, that so long as an Insurer
Default shall not have occurred and be continuing, no such suit shall be
instituted; PROVIDED FURTHER, HOWEVER, that notwithstanding the foregoing
proviso, a Holder shall be entitled to institute suit against the Seller for the
enforcement of payment of any Breakage Fee to which it may be entitled to
receive hereunder.
SECTION 606. RESTORATION OF RIGHTS AND REMEDIES.
If any of the Trustee, the Controlling Party or any Holder 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 Trustee, the Controlling Party or to such
Holder, then and in every such case, subject to any determination in such
Proceeding, the Issuer, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
Proceeding had been instituted.
SECTION 607. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen securities in the last paragraph
of Section 407, no right or remedy herein conferred upon or reserved to any of
the Trustee, the Controlling Party or to the Holders 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 608. DELAY OR OMISSION NOT WAIVER.
No delay or omission of any of the Trustee, the Controlling Party or
any Holder of any Note to exercise any right or remedy accruing upon any Default
or Event of Default shall impair any such right or remedy or constitute a waiver
of any such Default or Event of Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the
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Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 609. CONTROL BY HOLDERS.
If the Issuer is the Controlling Party, the Holders of a majority of
the Outstanding Amount of the Notes shall have the right to direct the time,
method and place of conducting any Proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Notes; PROVIDED that
(1) such direction shall not be in conflict with any rule of law,
with this Indenture or with the Security Agreement, and
(2) the Issuer may take any other action deemed proper by the
Issuer which is not inconsistent with such direction.
SECTION 610. WAIVER OF PAST DEFAULTS.
If an Insurer Default shall have occurred and be continuing, the
Holders of not less than a majority of the Outstanding Amount of the Notes may
on behalf of the Holders of all the Notes waive any past Default or Event of
Default hereunder and its consequences, except a Default:
(1) in the payment of the principal of or interest, if any, on any
Note, or
(2) in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of each
Outstanding Note affected.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any past Default or
Event of Default hereunder. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any Default or Event of Default hereunder, whether or not such
Holders remain Holders after such record date; and unless such majority in
principal amount shall have been obtained prior to the date which is 90 days
after such record date, any such waiver previously given shall automatically and
without further action by any Holder be cancelled and of no further effect.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default 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 Default or Event of Default or impair any right consequent thereon.
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SECTION 611. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Note by
such Holder's acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the Issuer,
to any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% of the Outstanding
Amount of the Notes, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of or interest on any Note on or after the
respective due dates expressed in such Note and in this Indenture.
SECTION 612. WAIVER OF STAY OR EXTENSION LAWS.
The Issuer covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead or in any manner whatsoever, claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantages of any such
law and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 613. ACTION ON NOTES.
The 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 or
any other relief under or with respect to this Indenture. Neither the lien of
the Security Agreement nor any rights or remedies of the Trustee or the
Noteholders shall be impaired by the recovery of any judgment by the Trustee
against the Issuer or by the levy of any execution under such judgment upon any
portion of the Trust Estate or upon any of the assets of the Issuer.
SECTION 614. PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS.
Subject to the provisions of the Security Agreement and the other
Related Documents, promptly following a request from the Trustee to do so and at
the Issuer's expense, the Issuer agrees to take all such lawful action as the
Trustee may request
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to compel or secure the performance and observance by the Seller, the
Servicer and OFL, as applicable, of each of their obligations to the Issuer
under or in connection with the Servicing Agreement or to OFL and the Seller
under or in connection with the Purchase Agreement or to the Seller under or
in connection with the Repurchase Agreement in accordance with the terms of
each thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the
Servicing Agreement, the Repurchase Agreement and the Purchase Agreement to
the extent and in the manner directed by the Trustee, including the
transmission of notices of default on the part of the Seller or the Servicer
thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by any of OFL, the Seller or the
Servicer of each of their obligations under such agreements.
SECTION 615. CLAIMS UNDER NOTE POLICY.
(a) In the event that the Trustee has delivered a Deficiency Notice
with respect to any Deficiency Claim Date and the Trustee has not cancelled and
returned the Note Policy to the Security Insurer, the Trustee shall determine on
the related Draw Date whether the sum of (i) the amount of Spread Account
Available Funds with respect to such Deficiency Claim Date (excluding, following
the occurrence of an Amortization Event, amounts distributable to the Servicer
pursuant to Section 3.6(b)(i)) and (ii) the amount of the Deficiency Claim
Amount, if any, to be delivered by the Spread Account Collateral Agent to the
Trustee pursuant to a Deficiency Notice with respect to such Deficiency Claim
Date (as stated in the certificate delivered on such Deficiency Claim Date by
the Spread Account Collateral Agent pursuant to Section 3.03(a) of the Spread
Account Agreement) would be insufficient to pay the Noteholders' Interest
Distributable Amount and, with respect to a Payment Date with respect to the
Amortization Period, the amounts referred to in clauses (i) and (ii) would be
insufficient, after giving effect to the distributions required by clauses (i)
through (iv) of Section 3.6(a) of the Servicing Agreement or, if an Amortization
Event shall have occurred, after giving effect to the distributions required by
clauses (i) through (iv) of Section 3.6(b) of the Servicing Agreement, to pay
the Noteholders' Principal Distributable Amount for the related Payment Date,
then in any such event the Trustee shall furnish to the Security Insurer no
later than 12:00 noon New York City time on the related Draw Date a completed
Notice of Claim in the amount of the shortfall in amounts so available to pay
the Noteholders' Interest Distributable Amount and, on Payment Dates with
respect to the Amortization Period, the Noteholders' Principal Distributable
Amount with respect to such Payment Date (the amount of any such shortfall being
hereinafter referred to as the "Policy Claim Amount"). Amounts paid by the
Security Insurer pursuant to a claim submitted under this Section 615 shall be
deposited by the Trustee into the Note Distribution Account for payment to
Noteholders on the related Payment Date.
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(b) Any notice delivered by the Trustee to the Security Insurer
pursuant to Section 615(a) shall specify the Policy Claim Amount claimed under
the Note Policy and shall constitute a "Notice of Claim" under the Note Policy.
In accordance with the provisions of the Note Policy, the Security Insurer is
required to pay to the Trustee the Policy Claim Amount properly claimed
thereunder by 12:00 noon, New York City time, on the later of (i) the third
Business Day following receipt on a Business Day of the Notice of Claim, and
(ii) the applicable Payment Date. Any payment made by the Security Insurer
under the Note Policy shall be applied solely to the payment of the Notes, and
for no other purpose.
(c) The Trustee shall (i) receive as attorney-in-fact of each
Noteholder any Policy Claim Amount from the Security Insurer and (ii) deposit
the same in the Note Distribution Account for disbursement to the Noteholders as
provided in Section 402, 403 or 602. Any and all Policy Claim Amounts disbursed
by the Trustee from claims made under the Note Policy shall not be considered
payment by the Issuer, and shall not discharge the obligations of the Issuer
with respect thereto. The Security Insurer shall, to the extent it makes any
payment with respect to the Notes, become subrogated to the rights of the
recipients of such payments to the extent of such payments. Subject to and
conditioned upon any payment with respect to the Notes by or on behalf of the
Security Insurer, the Trustee shall assign to the Security Insurer all rights to
the payment of interest or principal with respect to the Notes which are then
due for payment to the extent of all payments made by the Security Insurer and
the Security Insurer may exercise any option, vote, right, power or the like
with respect to the Notes to the extent that it has made payment pursuant to the
Note Policy. To evidence such subrogation, the Note Registrar shall note the
Security Insurer's rights as subrogee upon the register of Noteholders upon
receipt from the Security Insurer of proof of payment by the Security Insurer of
any Noteholders' Interest Distributable Amount or Noteholders' Principal
Distributable Amount. The foregoing subrogation shall in all cases be subject
to the rights of the Noteholders to receive all scheduled payments in respect of
the Notes.
(d) The Trustee shall keep a complete and accurate record of all
funds delivered by the Security Insurer to the Trustee and the allocation of
such funds to the payment of interest on and principal paid with respect to any
Note. The Security Insurer shall have the right to inspect such records at
reasonable times upon one Business Day's prior notice to the Trustee.
(e) The Trustee shall be entitled to enforce on behalf of the
Noteholders the obligations of the Security Insurer under the Note Policy.
Notwithstanding any other provision of this Indenture or any Related Document,
the Noteholders are not entitled to institute proceedings directly against the
Security Insurer.
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SECTION 616. PREFERENCE CLAIMS.
(a) In the event that the Trustee has received a certified copy of an
order of the appropriate court that any Noteholders' Interest Distributable
Amount or Noteholders' Principal Distributable Amount paid on a Note (including
in the computation of such Noteholders' Principal Distributable Amount for the
purpose of this Section 616, if the Security Insurer shall have received the
items described in clauses (A), (B) and (C) of Section 3 of the Note Policy, any
distribution in respect of principal on the Notes prior to the Final Maturity
Date that was subsequently avoided as a preference payment under applicable
bankruptcy, insolvency, receivership or similar law to the extent any such
amount remains unpaid on such date) has been avoided in whole or in part as a
preference payment under applicable bankruptcy law, the Trustee shall so notify
the Security Insurer, shall comply with the provisions of the Note Policy to
obtain payment by the Security Insurer of such avoided payment, and shall, at
the time it provides notice to the Security Insurer, notify Holders of the Notes
by mail that, in the event that any Noteholder's payment is so recoverable, such
Noteholder will be entitled to payment pursuant to the terms of the Note Policy.
Pursuant to the terms of the Note Policy, the Security Insurer will make such
payment on behalf of the Noteholder to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy named in the order (as defined in
the Note Policy) and not to the Trustee or any Noteholder directly (unless a
Noteholder has previously paid such payment to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy, in which case the Security
Insurer will make such payment to the Trustee for distribution to such
Noteholder upon proof of such payment reasonably satisfactory to the Security
Insurer).
(b) The Trustee shall promptly notify the Security Insurer of any
proceeding or the institution of any action (of which the Trustee has actual
knowledge) seeking the avoidance as a preferential transfer under applicable
bankruptcy, insolvency, receivership, rehabilitation or similar law (a
"Preference Claim") of any distribution made with respect to the Notes. Each
Holder, by its purchase of Notes, and the Trustee hereby agree that so long as
an Insurer Default shall not have occurred and be continuing, the Security
Insurer may at any time during the continuation of any proceeding relating to a
Preference Claim direct all matters relating to such Preference Claim including,
without limitation, (i) the direction of any appeal of any order relating to any
Preference Claim and (ii) the posting of any surety, supersedeas or performance
bond pending any such appeal at the expense of the Security Insurer, but subject
to reimbursement as provided in the Insurance Agreement. In addition, and
without limitation of the foregoing, as set forth in Section 615(c), the
Security Insurer shall be subrogated to, and each Noteholder and the Trustee
hereby delegate and assign, to the fullest extent permitted by law, the rights
of the Trustee and each Noteholder in the conduct of any proceeding with respect
to a Preference Claim, including, without limitation, all rights
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of any party to an adversary proceeding action with respect to any court
order issued in connection with any such Preference Claim.
ARTICLE SEVEN
The Trustee
SECTION 701. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, the Servicing
Agreement or any other Related Document to which it is a party, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture, the
Servicing Agreement or any other Related Document to which it is a party;
but in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture, the Servicing Agreement or any
other Related Document to which it is a party, shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct; PROVIDED, that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
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(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Security Insurer or the Holders of a majority of the Outstanding
Amount of the Notes, relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with
respect to the Notes; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law or the terms of this Indenture
or the Servicing Agreement.
(g) The Trustee shall, upon one Business Day's prior notice to the
Trustee, permit any representative of the Security Insurer or the Agent, during
the Trustee's normal business hours, to examine all books of account, records,
reports and other papers of the Trustee relating to the Notes, to make copies
and extracts therefrom and to discuss the Trustee's affairs and actions, as such
affairs and actions relate to the Trustee's duties with respect to the Notes,
with the Trustee's officers and employees responsible for carrying out the
Trustee's duties with respect to the Notes.
(h) In no event shall the Trustee be required to perform, or be
responsible for the manner of performance of, any of the obligations of the
Servicer, or any other party, under the Servicing Agreement except during such
time, if any, as the Trustee, in its capacity as Backup Servicer shall be the
successor to, and be vested with the rights, powers, duties and privileges of
the Servicer in accordance with the terms of the Servicing Agreement.
(i) The Trustee shall, and hereby agrees that it will, perform all of
the obligations and duties required of it under the Servicing Agreement and all
other Related Documents to which it is a party.
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(j) The Trustee shall, and hereby agrees that it will, hold the Note
Policy in trust, and will hold any proceeds of any claim on the Note Policy in
trust solely for the use and benefit of the Noteholders.
(k) Without limiting the generality of this Section 701, the Trustee
shall have no duty (i) to see to any recording, filing or depositing of this
Indenture or any agreement referred to herein or any financing statement
evidencing a security interest in the Financed Vehicles, or to see the
maintenance of any such recording or filing or depositing or to any recording,
refiling or redepositing of any thereof, (ii) to see to any insurance of the
Financed Vehicles or Obligors or to the effect or maintain any such insurance,
(iii) to see to the payment or discharge of any tax, assessment or other
governmental charge or any Lien or encumbrance of any kind owing with respect
to, assessed or levied against any part of the Trust Estate, (iv) to confirm or
verify the contents of any reports or certificates delivered to the Trustee
pursuant to this Indenture or the Servicing Agreement believed by the Trustee to
be genuine and to have been signed or presented by the proper party or parties,
or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as
to the performance or observance of any of the Issuer's, the Seller's or the
Servicer's representation, warranties or covenants or the Servicer's duties and
obligations as Servicer under the Agreement.
SECTION 702. NOTICE OF DEFAULTS.
If a Default occurs and is continuing and if it is known to a
Responsible Officer of the Trustee, the Trustee shall notify the Agent and each
Rating Agency of any such Default promptly after it occurs.
SECTION 703. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 701:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be
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herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Security Insurer or the Holders pursuant to this Indenture,
unless the Security Insurer or such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Issuer,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 704. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein, in any Indenture Supplement and in the
Notes, except the Trustee's certificates of authentication, shall be taken as
the statements of the Issuer, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes, the Collateral or the Trust Estate. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Issuer of Notes
or the proceeds thereof.
SECTION 705. MAY HOLD NOTES.
The Trustee, any Authenticating Agent, any Paying Agent, any Note
Registrar or any other agent of the Issuer, in
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its individual or any other capacity, may become the owner or pledgee of
Notes and, subject to Sections 708 and 713, may otherwise deal with the
Issuer with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Note Registrar or such other agent.
SECTION 706. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder must be segregated from
other funds. The Trustee shall be under no liability for interest on any money
received by it and held by it hereunder in trust except as otherwise agreed with
the Issuer.
SECTION 707. COMPENSATION AND INDEMNITY.
(a) OFL in a separate letter agreement (the "Letter Agreement") has
covenanted and agreed to pay to the Trustee, and the Trustee shall be entitled
to, certain annual fees, which shall not be limited by any law on compensation
of a Trustee of an express trust. In the Letter Agreement, OFL has also agreed
to reimburse the Trustee for all reasonable out-of-pocket expenses incurred or
made by it, including costs of collection, in addition to the compensation for
its services. Such expenses shall include the reasonable compensation and
expenses, disbursements and advances of the Trustee's agents, counsel,
accountants and experts. Pursuant to the Letter Agreement, OFL has agreed to
indemnify the Trustee against any and all loss, liability or expense (including
attorneys' fees) incurred by it in connection with the administration of this
trust and the performance of its duties hereunder.
(b) If notwithstanding the provisions of the Letter Agreement, OFL
fails to pay any fee or expense due to the Trustee pursuant to the terms of the
Letter Agreement, the Trustee shall be entitled to a distribution in respect of
such amount pursuant to Section 3.6(a)(iii) or Section 3.6(b)(iii) of the
Servicing Agreement. OFL's payment obligations to the Trustee pursuant to this
Section shall survive the discharge of this Indenture. When the Trustee incurs
expenses after the occurrence of a Default specified in Section 601(v) or (vi)
with respect to the Issuer, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
Federal or state bankruptcy, insolvency or similar law. Notwithstanding
anything else set forth in this Indenture or the Related Documents, the Trustee
agrees that the obligations of the Issuer (but not OFL) to the Trustee hereunder
and under the Related Documents shall be recourse to the Trust Estate only. In
addition, the Trustee agrees that its recourse to the Issuer, the Trust Estate
and the Seller shall be limited to the right to receive the distributions
referred to in the first sentence of this Section 707(b).
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SECTION 708. DISQUALIFICATION; CONFLICTING INTERESTS.
If this Indenture is qualified under the Trust Indenture Act and if
the Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.
SECTION 709. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder, which (a) shall be a
commercial bank or trust company organized and doing business under the laws
of the United States of America or any State thereof,(b) shall have a
combined capital and surplus of at least $50,000,000 and a long-term deposit
rating of at least Baa3 from Moody's or otherwise be acceptable to Moody's
and (c) shall be authorized to exercise corporate trust powers and be subject
to supervision or examination by Federal or State authority. If such
commercial bank or trust company publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such commercial bank or trust company shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 710. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 711.
(2) The Trustee may resign at any time with respect to the Notes by
giving written notice thereof to the Issuer. If the instrument of acceptance by
a successor Trustee required by Section 711 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Notes.
(3) The Trustee may be removed at any time with respect to the Notes
by Act of the Holders of a majority of the Outstanding Amount of the Notes,
delivered to the Trustee and to the Issuer.
(4) If at any time:
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(1) The Trustee shall fail to comply with Section 708 after written
request therefor by the Issuer or by any Holder who has been a
bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 709 and
shall fail to resign after written request therefor by the Issuer
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Issuer may, with the consent of the Security Insurer
(and at the request of the Security Insurer shall, unless an Insurer Default
shall have occurred and be continuing) remove the Trustee.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Notes, the Issuer shall promptly appoint a successor Trustee
acceptable to the Security Insurer (so long as an Insurer Default shall not have
occurred and be continuing) and shall comply with the applicable requirements of
Section 711. If the Issuer fails to appoint such a successor Trustee, the
Security Insurer may appoint a successor Trustee.
(6) The Issuer shall give notice of each resignation and each removal
of the Trustee with respect to the Notes and each appointment of a successor
Trustee with respect to the Notes by mailing written notice of such event by
first-class mail, postage prepaid, to all holders of Notes as their names and
addresses appear in the Note Register. Each notice shall include the name of
the successor Trustee with respect to the Notes and the address of its Corporate
Trust Office.
SECTION 711. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to the Notes, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Issuer and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee; but,
on the request of the Issuer or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to
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such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Issuer shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 712. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. The Trustee shall provide the Rating Agencies prompt
notice of any such transaction. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 713. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER.
If this Indenture is ever qualified under the Trust Indenture Act,
then the provisions of Section 311 of the Trust Indenture Act shall govern.
SECTION 714. APPOINTMENT OF AUTHENTICATING AGENT.
As of the date of the Indenture and at any time when any of the Notes
remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents
with respect to one or more Tranche of Notes which shall be authorized to act on
behalf of the Trustee to authenticate Notes of such Tranche issued upon
exchange, registration of transfer or partial prepayment thereof, or pursuant to
Section 406, and Notes so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Notes by the Trustee upon
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exchange, registration of transfer or partial prepayment thereof or the
Trustee's certificate of authentication in connection therewith, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Issuer and shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any State thereof, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Issuer. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Issuer and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of Notes,
as their names and addresses appear in the Note Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section. No resignation or termination of an Authenticating Agent shall
become effective until a successor Authenticating Agent shall be appointed and
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qualified hereunder or the Trustee assumes the duties of Authenticating Agent
hereunder.
The Issuer agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
In the event an Authenticating Agent is appointed under this
Indenture, the Trustee shall incur no liability for such appointment or for any
misconduct or negligence of such Authenticating Agent, including without
limitation, its authentication of the Notes upon original issuance or pursuant
to Section 406. In the event the Trustee does incur liability for any such
misconduct or negligence of the Authenticating Agent, the Issuer agrees to
indemnify the Trustee for, and hold it harmless against, any such liability,
including the costs and expenses of defending itself against any liability in
connection with such misconduct or negligence of the Authenticating Agent.
If an appointment with respect to one or more Tranches is made
pursuant to this Section, the Notes of such Tranche may have endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Notes referred to in the within-mentioned
Indenture.
Norwest Bank Minnesota, National
Association
As Trustee
By: ___________________________
As Authenticating Agent
By: _______________________
Authorized Officer
SECTION 715. PAYING AGENT.
(a) The payment responsibilities for the Notes shall be performed by
a Paying Agent, appointed by the Issuer and, so long as no Insurer Default
shall have occurred and be continuing, consented to by the Security Insurer,
which (a) shall be a commercial bank or trust company organized and doing
business under the laws of the United States or of any State thereof, (b) shall
have a combined capital and surplus of at least $50,000,000 and a long-term
deposits rating of at least Baa3 from Moody's or otherwise be acceptable to
Moody's, and (c) shall be authorized to exercise corporate trust powers and be
subject to supervision or examination by Federal or State authority.
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Norwest Bank Minnesota, National Association, is hereby initially appointed
Paying Agent for the purpose of making payments on the Notes as herein
provided.
(b) Upon the resignation or removal of the Paying Agent, the Trustee
shall, with the consent of the Issuer and, so long as no Insurer Default shall
have occurred and be continuing, promptly appoint a successor Paying Agent
meeting the requirements of Section 715(a) to perform the duties and exercise
the rights of the Paying Agent pursuant to this Indenture. Such resignation or
removal shall not be effective until a successor Paying Agent is appointed
hereunder. Upon the appointment of a successor Paying Agent, the Paying Agent
shall transfer all funds held by it hereunder to such successor.
SECTION 716. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement or any jurisdiction in
which any part of the Trust may at the time be located, the Trustee, with the
consent of the Security Insurer (so long as an Insurer Default shall not have
occurred and be continuing), shall have the power and may execute and deliver
all instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of
the Trust, and to vest in such Person or Persons, in such capacity and for
the benefit of the Noteholders, such title to the Trust, or any part hereof,
and subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor Trustee under Section 709.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
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(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder, and
(iii) the Trustee may at any time accept the resignation of or remove
any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Each instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Indenture on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new
successor trustee.
ARTICLE EIGHT
Holders' Lists and Reports by Trustee and Issuer
SECTION 801. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Issuer will furnish or cause to be furnished to the Trustee (a)
not more than five days after the earlier of (i) each Record Date and (ii)
three months after the last Record Date, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Notes as
of such Record Date, (b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 10 days prior to
the time such list is furnished; PROVIDED, HOWEVER, that so long as the
Trustee is the Note Registrar, no such list shall be required to be
furnished. The Trustee or, if the Trustee is not the Note Registrar, the
Issuer shall furnish to the Security Insurer in writing on an annual basis on
each November 30 and at such other times as the Security Insurer may request
a copy of the list.
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SECTION 802. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 801 and the
names and addresses of Holders received by the Trustee in its capacity as
Note Registrar. The Trustee may destroy any list furnished to it as provided
in Section 801 upon receipt of a new list so furnished.
(b) Every Holder of Notes, by receiving and holding the same, agrees
with the Issuer and the Trustee that neither the Issuer nor the Trustee nor any
agent of either of them shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Holders in accordance
with Section 802(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 802(b).
SECTION 803. REPORTS BY TRUSTEE.
If this Indenture is ever qualified under the Trust Indenture Act,
then the Trustee shall comply with the provisions of Section 313 of the Trust
Indenture Act.
SECTION 804. REPORTS BY ISSUER.
If this Indenture is qualified under the Trust Indenture Act, the
Issuer shall:
(1) file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Issuer may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Issuer is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the
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Issuer with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Note Register, and each Rating Agency within 30 days after
the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission; and
(4) furnish any other periodic reports as required by the Trust
Indenture Act.
ARTICLE NINE
Indenture Supplements
SECTION 901. INDENTURE SUPPLEMENTS WITHOUT CONSENT OF HOLDERS.
(a) Without the consent of any Holders but with the consent of the
Security Insurer (unless an Insurer Default shall have occurred and be
continuing), the Agent and the Trustee (the consent of which shall not be
withheld or delayed with respect to any Indenture Supplement that has been
consented to by the Security Insurer that does not materially and adversely
affect the Trustee), and with prior written notice to the Rating Agencies and
the Issuer, when authorized by an Issuer Order, at any time and from time to
time, may enter into one or more Indenture Supplements, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession, in compliance with the applicable
provisions hereof, of another corporation to the Issuer and the assumption
by any such successor of the covenants of the Issuer herein and in the
Notes; or
(2) to add to the covenants of the Issuer for the benefit of the
Holders of the Notes or to surrender any right or power herein conferred
upon the Issuer; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Notes in bearer form, registrable or not registrable as to principal, and
with or without interest coupons, or to permit or facilitate the issuance
of Notes in uncertificated form, or to facilitate the issuance of Notes in
global form through the facilities of a Depository; or
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(5) to modify the restrictions on and procedures for resale and other
transfers of the Notes to reflect any change in applicable law or
regulation (or the interpretation thereof) or in practices relating to the
resale or transfer of restricted securities generally; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section 711(b); or
(7) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to qualify, requalify or continue the
qualification of this Indenture (including any supplemental indenture)
under the Trust Indenture Act, or under any similar Federal statute
hereafter enacted, and to add to this Indenture such other provisions as
may be expressly permitted by the Trust Indenture Act, excluding, however,
the provisions referred to in Section 316(a)(2) of the Trust Indenture Act
as in effect at the date as of which this instrument was executed or any
corresponding provision in any similar Federal statute hereinafter enacted;
or
(8) to convey, transfer and assign to the Trustee Property to secure
the Notes, and to correct or amplify the description of any Property at any
time subject to this Indenture or to assure, convey, and confirm unto the
Trustee or the Collateral Agent any Property subject or required to be
subject to this Indenture; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, as long as such action shall not adversely affect the
interests of the Holders of Notes in any material respect.
(b) The Issuer and the Trustee, when authorized by an Issuer Order,
may, also without the consent of any of the Holders of the Notes but with the
consent of the Security Insurer (unless an Insurer Default shall have occurred
and be continuing) and with prior written notice to the Agent and the Rating
Agencies, enter into an Indenture Supplement or Supplements for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; PROVIDED, HOWEVER, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder or Permitted Assignee.
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SECTION 902. INDENTURE SUPPLEMENTS WITH CONSENT OF HOLDERS.
The Issuer and the Trustee, when authorized by an Issuer Order, also
may, with prior notice to the Rating Agencies, with the consent of the Security
Insurer (unless an Insurer Default shall have occurred and be continuing), and
with the consent of the Agent, by notice delivered to the Issuer and the
Trustee, enter into an Indenture Supplement or Supplements hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Notes under this Indenture; PROVIDED, that, subject to the
express rights of the Security Insurer under the Related Documents, no such
Indenture Supplement shall, without the consent of the Holder of each
Outstanding Note affected thereby,
(1) change the date of payment any installment of principal of or
interest on any Note, or reduce the principal amount thereof or the rate
of, or method of computation of the rate of, interest thereon or the
Prepayment Price with respect thereto, change the provision of this
Indenture relating to the application or collections on, or the proceeds of
the sale of, the Trust Estate to payment of principal of or interest on the
Notes, or change any place of payment where, or the coin or currency in
which, any Note or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
respective due dates thereof, or
(2) reduce the percentage of the Outstanding Amount of the Notes, the
consent of whose Holders is required for any such Indenture Supplement, or
the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
(3) permit the creation of any lien prior to the lien created by the
Security Agreement with respect to any part of the Trust Estate, or
terminate the lien created by the Security Agreement on any Property
subject hereto or deprive any Holder of the security afforded by the lien
of the Security Agreement, except to the extent expressly permitted by this
Indenture or the Security Agreement, or
(4) modify any of the provisions of this Section or Section 610,
except to increase any such percentage or to provide that certain other
provisions of this Indenture or the Related Document cannot be modified or
waived without the consent of the Holder of each Outstanding Note affected
thereby, or
(5) modify or alter the provisions of the second proviso to the
definition of the term "Outstanding."
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PROVIDED, FURTHER, that no such Indenture Supplement, without the consent
of the Agent shall have a material adverse effect on the rights of the
Agent.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any Indenture
Supplement hereto. If a record date is fixed, the Holders on such record date
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such Indenture Supplement, whether or not such Holders remain Holders
after such record date; PROVIDED, that unless such consent shall have become
effective by virtue of the requisite percentage having been obtained prior to
the date which is 90 days after such record date, any such consent previously
given shall automatically and without further action by any Holder be cancelled
and of no further effect.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed Indenture Supplement, but it shall
be sufficient if such Act shall approve the substance thereof.
The Trustee may in its discretion determine whether or not any Notes
would be affected by any Indenture Supplement and any such determination shall
be conclusive upon the Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. The Trustee shall not be liable for any
such determination made in good faith.
Promptly after the execution by the Issuer and the Trustee of any
Supplemental Indenture pursuant to this Section, the Trustee shall mail to the
Holders of the Notes to which such amendment or Supplemental Indenture relates a
notice setting forth in general terms the substance of such Supplemental
Indenture. Any failure of the Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such Supplemental Indenture.
SECTION 903. EXECUTION OF INDENTURE SUPPLEMENTS.
In executing, or accepting the additional trusts created by, any
Indenture Supplement permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee may receive, and (subject to
Section 701) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such Indenture Supplement is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such Supplemental Indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF INDENTURE SUPPLEMENTS.
Upon the execution of any Indenture Supplement under this Article,
this Indenture shall be modified in accordance
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therewith, and such Indenture Supplement shall form a part of this Indenture
for all purposes; and every Holder of Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. REFERENCE IN NOTES TO INDENTURE SUPPLEMENTS.
Notes authenticated and delivered after the execution of any Indenture
Supplement pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such Indenture Supplement. If the Issuer or the Trustee shall so determine, new
Notes so modified as to conform, in the opinion of the Trustee and the Issuer,
to any such Indenture Supplement may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
SECTION 906. RATING AGENCY CONFIRMATION.
No Indenture Supplement authorized and executed pursuant to this
Article Nine shall be effective until the Trustee shall have received
confirmation from the Rating Agencies that such Indenture Supplement shall not
result in a capital charge to the Security Insurer.
ARTICLE TEN
Covenants
The Issuer hereby covenants and agrees that so long as this Indenture
is in effect and any Notes remain Outstanding:
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
The Issuer will duly and punctually pay the principal of and interest
on the Notes in accordance with the terms of the Notes and this Indenture.
Without limiting the foregoing, the Issuer will cause to be distributed all
amounts on deposit in the Note Distribution Account on a Payment Date. Amounts
properly withheld under the Code by any Person from a payment to any Noteholder
of interest or principal shall be considered as having been paid by the Issuer
to such Noteholder for all purposes of this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Issuer will maintain in The City of New York, the City of Chicago,
Illinois or the City of Minneapolis, Minnesota an office or agency where Notes
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Issuer in respect of the Notes and this Indenture may
be served. The Issuer will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuer
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shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of
the Trustee, and the Issuer hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
SECTION 1003. CONSOLIDATION, MERGER, SALE OF ASSETS.
(a) the Issuer shall not consolidate or merge with or into any other
Person, unless
(i) the Person (if other than the Issuer) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the United States of America or any State and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee and the Agent, in form and substance satisfactory to the Trustee,
the Agent and the Security Insurer (so long as no Insurer Default shall
have occurred and be continuing), the due and punctual payment of the
principal of and interest on all Notes and the performance or observance of
every agreement and covenant of this Indenture and each other Related
Document on the part of the Issuer to be performed or observed, all as
provided herein;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) any action as is necessary to maintain the lien and security
interest created in favor of the Collateral Agent by the Security Agreement
shall have been taken;
(v) the Issuer shall have delivered to the Trustee and the Agent an
Officers' Certificate and an Opinion of Counsel (which shall describe the
actions taken as required by clause (a)(iv) of this Section 1003 or that no
such actions will be taken) each stating that such consolidation or merger
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with (including any filing required by the Exchange Act); and
(vi) so long as no Insurer Default shall have occurred and be
continuing, the Issuer shall have given the Security Insurer written notice
of such consolidation or merger at least 20 Business Days prior to the
consummation of such action and shall have received the prior written
approval of the Security Insurer of such consolidation or merger and the
Issuer or the Person (if other than the Issuer) formed by or surviving such
consolidation or merger has a net worth,
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immediately after such consolidation or merger, that is (a) greater than
zero and (b) not less than the net worth of the Issuer immediately prior to
giving effect to such consolidation or merger.
(b) The Issuer shall not convey or transfer all or substantially all
of its properties or assets, including those included in the Trust Estate, to
any Person (except as expressly permitted by the Indenture, the Security
Agreement, the Repurchase Agreement or the Servicing Agreement), unless
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer shall (A) be a United States citizen
or a Person organized and existing under the laws of the United States of
America or any State, (B) expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee and the Agent in form and
substance satisfactory to the Trustee, the Agent and the Security Insurer
(so long as no Insurer Default shall have occurred and be continuing),
the due and punctual payment of the principal of and interest on all
Notes and the performance or observance of every agreement and covenant
of this Indenture and each Related Document on the part of the Issuer to
be performed or observed, all as provided herein, (C) expressly agree by
means of such supplemental indenture that all right, title and interest
so conveyed or transferred shall be subject and subordinate to the rights
of Holders of the Notes, (D) unless otherwise provided in such
Supplemental Indenture, expressly agree to indemnify, defend and hold
harmless the Issuer against and from any loss, liability or expense
arising under or related to this Indenture and the Notes and (E)
expressly agree by means of such supplemental indenture that such Person
(or if a group of Persons, then one specified Person) shall make all
filings with the Commission (and any other appropriate Person) required
by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel which shall
be delivered to and shall be satisfactory to the Trustee, the Agent and the
Security Insurer (so long as no Insurer Default shall have occurred and be
continuing) to the effect that such transaction will not have any material
adverse tax consequence to the Issuer, the Security Insurer or any
Noteholder;
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(v) any action as is necessary to maintain the lien and security
interest created in favor of the Collateral Agent by the Security Agreement
shall have been taken;
(vi) the Issuer shall have delivered to the Trustee and the Agent an
Officers' Certificate and an Opinion of Counsel (which shall describe the
actions taken as required by clause (b)(v) of this Section 1003 or that no
such actions will be taken) each stating that such conveyance or transfer
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with (including any filing required by the Exchange Act); and
(vii) so long as no Insurer Default shall have occurred and be
continuing, the Issuer shall have given the Security Insurer written notice
of such conveyance or transfer of properties or assets at least 20 Business
Days prior to the consummation of such action and shall have received the
prior written approval of the Security Insurer of such conveyance or
transfer and the Person acquiring by conveyance or transfer the properties
or assets of the Issuer has a net worth, immediately after such conveyance
or transfer, that is (a) greater than zero and (b) not less than the net
worth of the Issuer immediately prior to giving effect to such conveyance
or transfer.
SECTION 1004. NEGATIVE COVENANTS.
Until the Termination Date, the Issuer shall not:
(i) except as expressly permitted by this Indenture, the Security
Agreement, the Repurchase Agreement or the Servicing Agreement, sell,
transfer, exchange or otherwise dispose of any of the properties or assets
constituting the Trust Estate, unless directed to do so by the Controlling
Party;
(ii) claim any credit on, or make any deduction from the principal or
interest 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; or
(iii) (A) permit the validity or effectiveness of this Indenture to
be impaired, or permit the first priority perfected lien in favor of the
Collateral Agent created by the Security Agreement to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person
to be released from any covenants or obligations with respect to the Notes
under this Indenture except as may be expressly permitted hereby, (B)
permit any lien, charge, excise, claim, security interest, mortgage or
other encumbrance (other than the lien in favor of the Collateral
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Agent created by the Security Agreement) to be created on or extend to or
otherwise arise upon or burden the Trust Estate or any part thereof or any
interest therein or the proceeds thereof (other than tax liens, mechanics'
liens and other liens that arise by operation of law, in each case on a
Financed Vehicle and arising solely as a result of an action or omission of
the related Obligor), (C) permit the lien in favor of the Collateral Agent
created by the Security Agreement not to constitute a valid first priority
(other than with respect to any such tax, mechanics' or other lien)
security interest in the Trust Estate, or (D) amend, modify or fail to
comply with the provisions of the Related Documents without the prior
written consent of the Controlling Party.
SECTION 1005. PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES.
(a) The Issuer will not take any action and will use its best efforts
not to permit any action to be taken by others that would release any Person
from any of such Person's material covenants or obligations under any instrument
or agreement included in the 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
expressly provided in this Indenture, the Security Agreement, the Servicing
Agreement or such other instrument or agreement.
(b) The Issuer may contract with other Persons acceptable to the
Security Insurer (so long as no Insurer Default shall have occurred and be
continuing) to assist it in performing its duties under this Indenture, and any
performance of such duties by a Person identified to the Trustee, the Agent and
the Security Insurer in an Officers' 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 Related Documents
and in the instruments and agreements included in the Trust Estate, including
but not limited to filing or causing to be filed all UCC financing statements
and continuation statements required to be filed by the terms of this Indenture,
the Security Agreement, the Repurchase Agreement and the Servicing Agreement in
accordance with and within the time periods provided for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Termination Event under the Servicing Agreement, the Issuer shall
promptly notify the Trustee, the Security Insurer and the Rating Agencies
thereof, and shall specify in such notice the action, if any, the Issuer is
taking with respect of such default. If a Servicer Termination Event shall
arise from the failure of the Servicer to perform any of its duties or
obligations under the Servicing Agreement with
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respect to the Receivables, the Issuer shall take all reasonable steps
available to it to remedy such failure.
(e) If an Insurer Default shall have occurred and be continuing and
if the Issuer has given notice of termination to the Servicer of the Servicer's
rights and powers pursuant to Section 5.2 of the Servicing Agreement, as
promptly as possible thereafter, the Issuer shall appoint a successor servicer
in accordance with Section 5.3 of the Servicing Agreement.
(f) Upon any termination of the Servicer's rights and powers pursuant
to the Servicing Agreement, the Issuer shall promptly notify the Trustee. As
soon as a successor Servicer is appointed, the Issuer shall notify the Trustee
of such appointment, specifying in such notice the name and address of such
successor Servicer.
(g) The Issuer agrees that it will not waive timely performance or
observance by the Servicer, the Backup Servicer, the Seller or OFL of their
respective duties under the Related Documents; (x) without the prior consent of
the Security Insurer (unless an Insurer Default shall have occurred and be
continuing) or (y) if the effect thereof would adversely affect the Holders of
the Notes.
SECTION 1006. OTHER INDEBTEDNESS.
The Issuer will not create, incur, assume or suffer to exist any
Indebtedness for borrowed money, whether current or funded, other than (i) the
Notes, (ii) any other Indebtedness permitted by or arising under the Related
Documents, and (iii) any indebtedness to which the Rating Agencies confirm
beforehand in writing will not result in a capital charge to the Security
Insurer.
SECTION 1007. GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES.
The Issuer will not make any loan or advance credit to, or guaranty
(directly or indirectly by an instrument having the effect of assuring another's
payment or performance on any obligation) or otherwise become contingently
liable for any Indebtedness or other obligations of any other Person (other than
(i) by endorsement of instruments in the ordinary course of collection, (ii) by
operation of law and (iii) as otherwise permitted by the Related Documents)
unless the Rating Agencies have confirmed beforehand in writing that such action
will not result in capital charge to the Security Insurer.
SECTION 1008. DIVIDENDS; DISTRIBUTIONS.
The Issuer will not declare or pay any dividends in respect of, or
make any distributions upon any of the capital stock of the Issuer, if the
effect of such declaration, payment or distribution would be to reduce the sum
of the paid-in
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capital, paid-in surplus, retained earnings and deferred income (net of
anticipated taxes) of the Issuer to less than $10,000.
SECTION 1009. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST.
All payments of amounts due and payable with respect to any Notes that
are to be made from amounts withdrawn from the Note Distribution Account shall
be made on behalf of the Issuer by the Trustee or by another Paying Agent, and
no amounts so withdrawn from the Note Distribution Account for payments of Notes
shall be paid over to the Issuer.
On or before each Payment Date, the Issuer shall, subject to the
provisions hereof, deposit or cause to be deposited in the Note Distribution
Account from amounts specified therefor in the Servicing Agreement and the other
Related Documents an aggregate sum sufficient to pay the amounts then becoming
due, such sum to be held in trust for the benefit of the Persons entitled
thereto and (unless the Paying Agent is the Trustee) shall promptly notify the
Trustee of its action or failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of or
interest on the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Issuer (or any
other obligor upon the Notes) in the making of any payment of principal or
interest on the Notes;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent;
(4) immediately resign as a Paying Agent and forthwith pay to the
Trustee all sums held by it in trust for the payment of Notes if at any
time it ceases to meet the standards required to be met by a Paying Agent
at the time of its appointment; and
(5) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
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The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Issuer Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by such Paying Agent;
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, in trust for
the payment of the principal of or interest on any Note and remaining unclaimed
for two years after such principal or interest has become due and payable shall
be paid to the Issuer on Issuer Request; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer as trustee thereof,
shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the Borough of Manhattan, The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Issuer.
SECTION 1010. CORPORATE EXISTENCE.
Except as provided in Section 1003, the Issuer will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and material rights (charter and statutory) and material
franchises of the Issuer; PROVIDED, HOWEVER, that the Issuer shall not be
required to preserve any such right or franchise if the Issuer shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Issuer, and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 1011. PAYMENT OF TAXES AND OTHER CLAIMS.
The Issuer will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Issuer or upon the income,
profits or property of the Issuer, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a Lien upon the
Property of the Issuer; PROVIDED, HOWEVER, that the Issuer shall not be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose
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amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1012. NOTICE OF EVENTS OF DEFAULT.
The Issuer agrees to give the Trustee, the Security Insurer, the Agent
and the Rating Agencies prompt written notice of each Event of Default
hereunder, each default on the part of the Servicer or the Seller of its
obligations under the Servicing Agreement or the Repurchase Agreement and each
default on the part of OFL of its obligations under the Purchase Agreement.
SECTION 1013. AMENDMENT OF CERTIFICATE OF INCORPORATION AND BYLAWS.
The Issuer will not amend its Certificate of Incorporation or Bylaws
in any manner that materially and adversely affects the Holders and without
prior written confirmation of the Rating Agencies that such amendment will not
result in any downgrade or withdrawal of their ratings on the Notes.
SECTION 1014. STATEMENT AS TO COMPLIANCE.
The Issuer will deliver to the Trustee, with copies to the Rating
Agencies, within 120 days after the end of each fiscal year, a written
statement, which need not comply with Section 102, signed on behalf of the
Issuer stating, as to each signatory thereof, that
(1) a review of the activities of the Issuer during such year and of
performance under this Indenture has been made under such person's
supervision, and
(2) to the best of such person's knowledge, based on such review, (a)
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 person and
the nature and status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both would become,
an Event of Default or Default, or, if such an event has occurred and is
continuing, specifying each such event known to such person and the nature
and status thereof.
SECTION 1015. RULE 144A INFORMATION.
At any time when the Issuer is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended, upon the request of a Holder,
the Issuer shall promptly furnish to such Holder or to a prospective purchaser
of a Note designated by such Holder, as the case may be, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act
("Rule 144A Information") in order to permit compliance by such
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Holder with Rule 144A in connection with the resale of such Note by such
Holder; PROVIDED, HOWEVER, that the Issuer shall not be required to furnish
Rule 144A Information in connection with any request made on or after the
date which is three years from the later of (i) the date such Note (or any
predecessor Note) was acquired from the Issuer or (ii) the date such Note (or
any predecessor Note) was last acquired from an "affiliate" of the Issuer
within the meaning of Rule 144 under the Securities Act; and PROVIDED FURTHER,
that the Issuer shall not be required to furnish such information at any
time to a prospective purchaser located outside the United States who is not
a "United States Person" within the meaning of Regulation S under the
Securities Act if such Note may then be sold to such prospective purchaser in
accordance with Rule 904 under the Securities Act (or any successor provision
thereto).
SECTION 1016. FURTHER INSTRUMENTS AND ACTS.
Upon request of the Trustee or the Security Insurer, the Issuer will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of this
Indenture.
SECTION 1017. COMPLIANCE WITH LAWS.
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 Related Document.
SECTION 1018. INCOME TAX CHARACTERIZATION.
For purposes of Federal income, State and local income and franchise
and any other income taxes, the Issuer will treat the Notes as debt of the
Issuer.
ARTICLE ELEVEN
Prepayment of Notes
SECTION 1101. PREPAYMENT.
The Notes shall be prepayable in whole or in part at the Prepayment
Price on any Business Day in accordance (and simultaneously) with the prepayment
of any Advance pursuant to Section 3(e) of the Repurchase Agreement and Section
3.10(b) of the Servicing Agreement in an amount equal to the amount deposited
with respect to principal in the Note Distribution Account pursuant to Section
3.10(b) of the Servicing Agreement. Principal prepayments on Notes of a Tranche
shall be applied pro rata among all Notes of such Tranche, without priority or
preference of any kind.
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SECTION 1102. NOTICE OF PREPAYMENT IN WHOLE OF A TRANCHE.
To the extent practicable, notice of the prepayment in whole of any
Tranche of Notes shall be given by the Issuer by facsimile transmission, courier
or first-class mail, postage prepaid, mailed, faxed or couriered not less than 1
nor more than 5 days prior to the date on which such prepayment in whole shall
occur, to each Holder of Notes of such Tranche to be so prepaid in whole, at
such Holder's address appearing in the Note Register.
All notices of prepayment in whole shall state:
(1) the date on which such prepayment in whole shall occur,
(2) the Prepayment Price,
(3) the place or places where such Notes are to be surrendered for
payment of the Prepayment Price (which shall be the office or agency of the
Issuer to be maintained as provided in Section 1002).
Failure to give notice of prepayment in whole, or any defect therein,
to any Holder of any Note shall not impair or affect the validity of such
prepayment.
SECTION 1103. DEPOSIT OF PREPAYMENT PRICE.
On any date on which such prepayment in whole shall occur, the Issuer
shall deposit with the Trustee or with a Paying Agent an amount of money
sufficient to pay the Prepayment Price of all Notes which are to be prepaid in
whole on that date.
SECTION 1104. NOTES PREPAYABLE IN WHOLE ON ANY DATE.
Notice of prepayment in whole having been given as aforesaid, the
Notes so to be prepaid in whole shall, on the date on which such prepayment in
whole shall occur, become due and payable at the Prepayment Price therein
specified, and from and after such date (unless the Issuer shall default in the
payment of the Prepayment Price and accrued interest) such Notes shall cease to
bear interest. Upon surrender of any such Note for prepayment in whole in
accordance with said notice, such Note shall be prepaid by the Issuer at the
Prepayment Price, together with accrued interest to the date on which such
prepayment in whole shall occur; PROVIDED, HOWEVER, that installments of
interest due and payable on or prior to the date on which such prepayment in
whole shall occur shall be payable to the Holders of such Notes, or one or more
Predecessor Notes, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 408.
If any Note called for prepayment in whole shall not be so paid upon
surrender thereof for prepayment in whole, the
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principal shall, until paid, bear interest from the date on which such
prepayment in whole shall occur at the Note Interest Rate.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. ISSUER'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Issuer may at its option by Board Resolution and with the consent
of the Agent and the Security Insurer (as long as no Insurer Default has
occurred and is continuing), at any time, elect to have either Section 1202 (if
applicable) or Section 1203 (if applicable) be applied to the Outstanding Notes
upon compliance with the conditions set forth below in this Article Twelve.
SECTION 1202. DEFEASANCE AND DISCHARGE.
Upon the Issuer's exercise of the above option applicable to this
Section, the Issuer shall be deemed to have been discharged from its obligations
with respect to the Outstanding Notes on and after the date the conditions
precedent set forth below are satisfied but subject to satisfaction of the
conditions subsequent set forth below (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Issuer shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Notes and to
have satisfied all its other obligations under the Notes and this Indenture (and
the Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Notes to receive, solely from the trust fund described in Section
1204 and as more fully set forth in such Section, payments of the principal of
and interest on the Notes when such payments are due, (B) the Issuer's
obligations under Sections 404, 405, 406, 1002, 1010 and 1016 and such
obligations as shall be ancillary thereto, (C) the rights, powers, trusts,
duties, immunities and other provisions in respect of the Trustee hereunder and
(D) this Article Twelve. Subject to compliance with this Article Twelve, the
Issuer may exercise its option under this Section 1202 notwithstanding the prior
exercise of its option under Section 1203. Following a defeasance, payment of
the Notes may not be accelerated because of an Event of Default.
SECTION 1203. COVENANT DEFEASANCE.
Upon the Issuer's exercise of the above option applicable to this
Section, the Issuer shall be released from its obligations under Sections 1003
through 1008, 1011, 1012 and 1013 and the occurrence of an Event of Default
specified in Section 601(iv) (insofar as it is with respect to Sections 1002
through
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1008, 1011, 1012 and 1013) shall be deemed not to be an Event of Default with
respect to the Outstanding Notes on and after the date the conditions
precedent set forth below are satisfied but subject to satisfaction of the
conditions subsequent set forth below (hereinafter, "covenant defeasance"). For
this purpose, such covenant defeasance means that, with respect to the
Outstanding Notes, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section, whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and the Notes shall be unaffected thereby.
SECTION 1204. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions precedent or, as specifically
noted below, the conditions subsequent to application of either Section 1202 or
Section 1203 to the Outstanding Notes:
(1) the Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Notes, (A) money in
an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient,
without reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee to pay and discharge, the principal of and interest on the
Outstanding Notes to maturity or redemption, as the case may be. Before
such a deposit the Issuer may make arrangements satisfactory to the Trustee
for the redemption of Notes at a future date or dates in accordance with
Article Eleven, which shall be given effect in applying the foregoing. For
this purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such
U.S.
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Government Obligation held by such custodian for the account of the holder
of such depository receipt (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced by
such depository receipt.
(2) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to the Notes shall
have occurred and be continuing (A) on the date of such deposit or
(B) insofar as subsections 601(v) and (vi) are concerned, at any time
during the period ending on the 123rd day after the date of such deposit
or, if longer, ending on the day following the expiration of the longest
preference period applicable to the Issuer in respect of such deposit (it
being understood that the condition in this clause (B) is a condition
subsequent and shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee to have a conflicting interest as defined in Section 708 or for
purposes of the Trust Indenture Act with respect to any securities of the
Issuer or (B) result in the trust arising from such deposit to constitute,
unless it is qualified as, a regulated investment company under the
Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Issuer is a party or by
which it is bound.
(5) Such defeasance or covenant defeasance shall not cause any Notes
then listed on any registered national securities exchange under the
Securities Exchange Act of 1934, as amended, to be delisted.
(6) In the case of an election under Section 1202, the Issuer shall
have delivered to the Trustee and the Agent an Opinion of Counsel stating
that (x) the Issuer has received from, or there has been published by, the
Internal Revenue service a ruling, or (y) since the date of this Indenture
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that,
the Holders of the Outstanding Notes will not recognize income, gain or
loss for Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such defeasance
had not occurred.
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(7) In the case of an election under Section 1203, the Issuer shall
have delivered to the Trustee and the Agent an Opinion of Counsel to the
effect that the Holders of the Outstanding Notes will not recognize income,
gain or loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(8) The Issuer shall have delivered to the Trustee and the Agent an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 1202 or the covenant defeasance under Section 1203 (as the case may
be) have been complied with.
(9) The Issuer shall have delivered or caused to be delivered to the
Trustee and the Agent written confirmation of the Rating Agencies that such
defeasance under Section 1202 or covenant defeasance under Section 1203
will not result in a capital charge to the Security Insurer.
SECTION 1205. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1009, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee pursuant to Section 1204 in respect of the Outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent as the Trustee may determine, to the Holders of the
Notes, of all sums due and to become due thereon in respect of principal and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1204 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Issuer from time to time upon Issuer Request any money or
U.S. Government Obligations held by it as provided in Section 1204 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
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Anything herein to the contrary notwithstanding, if and to the extent
the deposited money or U.S. Government Obligations (or the proceeds thereof)
either (i) cannot be applied by the Trustee in accordance with this Section
because of a court order or (ii) are for any reason insufficient in amount, then
the Issuer's obligations to pay principal of and interest on the Notes shall be
reinstated to the extent necessary to cover the deficiency on any due date for
payment. In any case specified in clause (i), the Issuer's interest in the
deposited money and U.S. Government Obligations (and proceeds thereof) shall be
reinstated to the extent the Issuer's payment obligations are reinstated.
_________________________
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
ARCADIA RECEIVABLES CONDUIT CORP.
By /s/ [Illegible]
--------------------------------
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By /s/ [Illegible]
--------------------------------
[Signature page to Indenture]
EXHIBIT A
[Form of Note]
REGISTERED
No.
ARCADIA RECEIVABLES CONDUIT CORP.
FLOATING RATE AUTOMOBILE RECEIVABLES-BACKED NOTES
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND HAS NOT BEEN
APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR
REGULATORY AUTHORITY OF ANY STATE. THIS NOTE HAS BEEN OFFERED AND SOLD
PRIVATELY. THE HOLDER HEREOF ACKNOWLEDGES THAT THESE SECURITIES ARE
"RESTRICTED SECURITIES" THAT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT AND AGREES FOR THE BENEFIT OF THE ISSUER AND ITS AFFILIATES THAT THESE
SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) TO A PERMITTED ASSIGNEE WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR
(B) TO A PERMITTED ASSIGNEE PURSUANT TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (C) TO A
PERMITTED ASSIGNEE PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER SECTION 5 OF THE SECURITIES ACT, AND IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER JURISDICTION.
THIS NOTE WILL BE PREPAYABLE IN WHOLE OR IN PART ON ANY BUSINESS DAY.
THEREFORE IT IS POSSIBLE THAT SOME TRANCHES OF NOTES MAY BE RETIRED
BEFORE ANY PAYMENTS OF PRINCIPAL ARE MADE ON THIS NOTE.
THE PRINCIPAL ON THIS NOTE IS PAYABLE IN INSTALLMENTS ON THE PAYMENT
DATES AND IN THE AMOUNTS DESCRIBED IN THE INDENTURE REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF AND UNPAID
INTEREST ON THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON
THE FACE HEREOF.
Original Issue Date:
Principal Amount: $
Arcadia Receivables Conduit Corp. (the "Issuer"), a corporation duly
organized and existing under the laws of the State of Delaware, for value
received hereby promises to pay to ___________ the principal sum of ___________
Dollars payable in installments on the Payment Dates and in the amounts
described in the Indenture referred to herein and to pay interest thereon on
each Payment Date at the Note Interest Rate until the principal hereof is paid
or made available for payment. The Note Interest Rate will be a per annum rate
equal to (A) prior to the occurrence of an Amortization Event, (i) the CP Rate
plus 0.20%, to the extent the purchase or carrying of the Notes issued pursuant
to this Indenture is funded by the Noteholders by issuing Commercial Paper
Notes, or (ii) the Offshore Rate plus the Applicable Margin, to the extent the
purchase or carrying of the Notes issued pursuant to this Indenture is not so
funded by the Noteholders and (B) after the occurrence of an Amortization Event,
the Reference Rate; PROVIDED, that from and after the occurrence of an
Amortization Event, the Note Interest Rate shall not exceed the Maximum Interest
Rate, and the Agent may, on any Business Day, by prior written notice to the
Issuer, the Trustee, the Seller, the Servicer and the Security Insurer, convert
the Note Interest Rate to a fixed interest rate not to exceed the Maximum
Interest Rate as of the close of business on the date such Amortization Event
occurs, such fixed interest rate not to exceed the Two Year Treasury Yield (as
of the close of business on the date such Amortization Event occurs) plus 0.60%
PLUS the Basis Fee Percent.
This Note will bear interest, payable in arrears, from the Original Issue
Date at the Note Interest Rate. Interest will accrue on each Note from the most
recent Payment Date to which interest has been paid in full or duly provided for
(or, if no interest has been paid, from the Original Issue Date), to but
excluding the next succeeding Payment Date. The first payment of interest on
any Note issued between the first day of a calendar month and a Payment Date
will be made on the Payment Date following the next succeeding calendar month.
In addition, on each Payment Date with respect to any Interest Period or portion
thereof after the occurrence of an Amortization Event, the Default Amount
Distributable Amount, if any, shall be payable with respect to the Notes to the
extent funds are available therefor pursuant to Section 3.6(b)(vii) or (ix) of
the Servicing Agreement.
Payments on this Note will be paid to the Person in whose name this Note
(or one or more Predecessor Notes) is registered at the close of business on the
Record Date, by wire transfer in immediately available funds to the account and
number specified in the Note Register on such Record Date for such Person or, if
no such account or number is so specified, then by check mailed
to the address of such Person as such address shall appear in the Note
Register.
The Record Date for each Payment Date for this Note will be the close of
business on the last Business Day immediately preceding such Payment Date.
This Note is entitled to the benefits of an Indenture dated as of December
3, 1996, as amended and supplemented, (as amended and supplemented from time to
time, the "Indenture") between the Issuer and Norwest Bank Minnesota, National
Association, as Trustee (in such capacity, the "Trustee") and as Collateral
Agent (in such capacity, the "Collateral Agent").
The Notes are entitled to the benefits of a financial guaranty insurance
policy (the "Note Policy") issued by Financial Security Assurance Inc. (the
"Security Insurer"), pursuant to which the Security Insurer has unconditionally
guaranteed payments of the Noteholders' Interest Distributable Amount on each
Payment Date and the Noteholders' Principal Distributable Amount on each Payment
Date.
NO HOLDER OF A NOTE SHALL TRANSFER ITS NOTE UNLESS SUCH TRANSFER IS MADE IN
ACCORDANCE WITH RULE 144A OF THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144A UNDER THE SECURITIES ACT (IF AVAILABLE), OR
PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER SECTION
5 OF THE SECURITIES ACT PROVIDED THE ISSUER IS PROVIDED WITH AN OPINION OF
COUNSEL THAT SUCH TRANSFER IS SO EXEMPT, AND IN EACH CASE IN ACCORDANCE WITH THE
REGISTRATION AND QUALIFICATION REQUIREMENTS (OR ANY APPLICABLE EXEMPTION
THEREFROM) UNDER APPLICABLE STATE SECURITIES LAWS.
This Note shall not be valid or entitled to any benefit under the Indenture
or be valid or obligatory for any purpose unless the certificate of
authentication appearing hereon has been executed by the Trustee or the
Authenticating Agent by manual signature. THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer.
ARCADIA RECEIVABLES CONDUIT CORP.
By
-------------------------
Authorized Officer
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By
-------------------------
Authorized Signatory
[FORM OF REVERSE SIDE OF NOTE]
ARCADIA RECEIVABLES CONDUIT CORP.
(Continued)
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Floating Rate Automobile Receivables Backed Notes (herein
called the "Notes") authorized to be issued under and pursuant to an Indenture
by and between the Issuer and Norwest Bank Minnesota, National Association, as
Trustee and as Collateral Agent, dated as of December 3, 1996, as amended and
supplemented (as amended and supplemented from time to time, the "Indenture") to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Issuer, the Trustee and the Holders of the Notes. The Notes are subject to all
terms of the Indenture. All terms used in this Note that are defined in the
Indenture, as supplemented or amended, shall have meanings assigned to them in
or pursuant to the Indenture, as so supplemented or amended.
The Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
Principal of the Notes will be payable in installments on the Payment Dates
and in the amounts described in the Indenture. "Payment Date" means the
fifteenth day of each month, or if any such date is not a Business Day, the next
succeeding Business Day, commencing January 15, 1997.
As described above, the entire unpaid principal amount of this Note shall
be due and payable on the Final Distribution Date. In addition, the Notes are
prepayable in whole or in part on any Business Day as set forth in the
Indenture. Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing so long as an Insurer Default shall not
have occurred and be continuing or, if an Insurer Default shall have occurred
and be continuing, on the date on which an Event of Default shall have occurred
and be continuing and the Trustee or the Agent have declared the Notes to be
immediately due and payable in the manner provided in Section 602 of the
Indenture. All principal payments on the Notes shall be made pro rata to the
Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Payment Date,
together with an installment of principal, if any, to the extent not in full
payment of this Note, shall be paid to the Person in whose name this Note (or
one or more Predecessor
Notes) is registered at the close of business on the Record Date, by wire
transfer in immediately available funds to the account and number specified
in the Note Register on such Record Date for such Person or, if no such
account or number is so specified, then by check mailed to such Person's
address as it appears in the Note Register on each such Record Date. Such
payments shall be sent without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or
any one or more Predecessor Notes) affected by any payments made on any
Payment Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or
in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the final
installment of the then remaining unpaid principal amount of this Note on a
Payment Date, then the Trustee will notify the Person who was the Registered
Holder hereof as of the Record Date preceding such Payment Date by notice
mailed within five days of such Payment Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the place specified by the Trustee in such notice. Notices in connection
with prepayments in whole shall be couriered, mailed or sent by facsimile
transmission as provided in Section 1102 of the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Security Insurer and of the Agent or
the Holders of Notes representing a majority of the Outstanding Amount of all
Notes at the time Outstanding. The Indenture also contains provisions
permitting the Holders of Notes representing specified percentages of the
Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequence. Any such
consent or waiver by the Holder of this Note (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holders and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Holders of the Notes issued thereunder.
Upon surrender for registration of transfer of this Note at the office or
agency of the Issuer to be maintained in The City of New York, the City of
Chicago, Illinois or the City of Minneapolis, Minnesota, the Issuer shall
execute, and the Trustee
or the Authenticating Agent shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or
more new Notes of any authorized denominations and of a like tenor and
aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of any
authorized denominations and of a like tenor and aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange, the Issuer shall execute, and the
Trustee or the Authenticating Agent shall authenticate and make available for
delivery, the Notes which the Holder making the exchange is entitled to receive.
Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Issuer or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Issuer and the Note Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing with such signature guaranteed by a
commercial bank or trust company located, or having a correspondent located, in
the City of New York or the city in which the Corporate Trust Office is located,
or by a member firm of a national securities exchange, and such other documents
as the Trustee may require.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Issuer or the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 404 or 905 not involving any transfer.
The term "Issuer" as used in this Note includes any successor to the Issuer
under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
THIS NOTE AND THE INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Related Documents, neither the Issuer nor any of its agents,
officers, directors, employees, stockholders, incorporators or successors or
assigns shall be
personally liable for, nor shall recourse be had to any of them for, the
payment of principal of or interest on, or performance of, or omission to
perform, any of the covenants, obligations or indemnifications contained in
this Note or the Indenture. The Holder of this Note by the acceptance hereof
agrees that except as expressly provided in the Related Documents, in the
case of an Event of Default under the Indenture, the Holder shall have no
claim against any of the foregoing for any deficiency, loss or claim
therefrom.
[FORM OF ASSIGNMENT]
For value received ____________________ hereby sells, assigns and transfers
unto
(Please insert Social Security or Other Identifying Number of
Assignee.)
(Please print or typewrite name and address, including zip code, of
Assignee.)
the within Note and all rights hereunder and does hereby irrevocably constitute
and appoint ____________________ attorney to transfer the said Note on the books
of the said Note Registrar with full power of substitution in the premises.
Dated:
*
-------------------------
Signature
Signature Guaranteed:
---------------------------
____________________
*NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change
whatsoever.
EXHIBIT B
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[LOGO] FINANCIAL GUARANTY
INSURANCE POLICY
OBLIGOR: Arcadia Receivables Conduit Corp. Policy No.: 50528-N
OBLIGATIONS: Up to $300,000,000 Original Principal Date of Issuance: 12/3/96
Amount Floating Rate Automobile
Receivables-Backed Notes
FINANCIAL SECURITY ASSURANCE INC. ("Financial Security"), for
consideration received, hereby UNCONDITIONALLY AND IRREVOCABLY GUARANTEES to
each Holder, subject only to the terms of this Policy (which includes each
endorsement hereto), the full and complete payment by the Obligor of
Scheduled Payments of principal of, and interest on, the Obligations.
For the further protection of each Holder, Financial Security
irrevocably and unconditionally guarantees:
(a) payment of the amount of any distribution of principal of, or
interest on, the Obligations made during the Term of this Policy to such
Holder that is subsequently avoided in whole or in part as a preference
payment under applicable law (such payment to be made by Financial Security
in accordance with Endorsement No. 1 hereto).
(b) payment of any amount required to be paid under this Policy by
Financial Security following Financial Security's receipt of notice as
described in Endorsement No. 1 hereto.
Financial Security shall be subrogated to the rights of each Holder to
receive payments under the Obligations to the extent of any payment by
Financial Security hereunder.
Except to the extent expressly modified by an endorsement hereto, the
following terms have the meanings specified for all purposes of this Policy.
"Holder" means the registered owner of any Obligation as indicated on the
registration books maintained by or on behalf of the Obligor for such purpose
or, if the Obligation is in bearer form, the holder of the Obligation.
"Scheduled Payments" means payments which are scheduled to be made during the
Term of this Policy in accordance with the original terms of the Obligations
when issued and without regard to any amendment or modification of such
Obligations thereafter; payments which become due on an accelerated basis as
a result of (a) a default by the Obligor, (b) an election by the Obligor to
pay principal on an accelerated basis or (c) any other cause, shall not
constitute "Scheduled Payments" unless financial Security shall elect, in its
sole discretion, to pay such principal due upon such acceleration together
with any accrued interest to the date of acceleration. "Term of this Policy"
shall have the meaning set forth in Endorsement No. 1 hereto.
This Policy sets forth in full the undertaking of Financial Security,
and shall not be modified, altered or affected by any other agreement or
instrument, including any modification or amendment thereto, or by the
merger, consolidation or dissolution of the Obligor. Except to the extent
expressly modified by an endorsement hereto, the premiums paid in respect of
this Policy are nonrefundable for any reason whatsoever, including payment,
or provision being made for payment, of the Obligations prior to maturity.
This Policy may not be cancelled or revoked during the Term of this Policy.
THIS POLICY IS NOT COVERED BY THE PROPERTY/CASUALTY INSURANCE SECURITY FUND
SPECIFIED IN ARTICLE 76 OF THE NEW YORK INSURANCE LAW.
In witness whereof, FINANCIAL SECURITY ASSURANCE INC. has caused this
Policy to be executed on its behalf by its Authorized Officer.
FINANCIAL SECURITY ASSURANCE INC.
By /s/ [Illegible]
------------------------------
Authorized Officer
A subsidiary of Financial Security Assurance Holdings Ltd.
000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000 (000) 000-0000
--------------------------------------------------------------------------------
