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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) November 5, 1996
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Norwest Auto Receivables Corporation
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(Exact Name of Registrant as Specified in its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
333-7961 51-0378359
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(Commission File Number) (I.R.S. Employer Identification No.)
100 West Commons Boulevard, Suite 212, New Castle, Delaware 19720
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(Address of Principal Executive Offices) (Zip Code)
(302) 324-9018
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(Registrant's Telephone Number, Including Area Code)
Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
The Registrant is filing final forms of the exhibits listed in Item
7(c) below.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit
No. Document Description
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1.1 Underwriting Agreement among Norwest Auto Receivables
Corporation, Lehman Brothers Inc., as Representative
of the several underwriters, and Norwest Corporation,
dated as of November 5, 1996.
4.1 Indenture between Norwest Auto Trust 1996-A and The Chase
Manhattan Bank, as indenture trustee, dated as of
November 13, 1996.
4.2 Trust Agreement between Norwest Auto Receivables
Corporation, as depositor, and Wilmington Trust Company,
as trustee, dated as of November 13, 1996.
99.1 Sale and Servicing Agreement among Norwest Auto Receivables
Corporation, as seller, Norwest Bank Minnesota, N.A., as
servicer, Norwest Corporation, Wilmington Trust Company, as
trustee, and The Chase Manhattan Bank, as indenture trustee,
dated as of November 13, 1996.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
NORWEST AUTO RECEIVABLES CORPORATION
(Registrant)
Dated: November 20, 1996 By: /s/ Jerome W. Fons III
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Name: Jerome W. Fons III
Title: Vice President
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INDEX TO EXHIBITS
Exhibit
No. Document Description
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1.1 Underwriting Agreement among Norwest Auto Receivables
Corporation, Lehman Brothers Inc., as Representative
of the several underwriters, and Norwest Corporation,
dated as of November 5, 1996.
4.1 Indenture between Norwest Auto Trust 1996-A and The Chase
Manhattan Bank, as indenture trustee, dated as of
November 13, 1996.
4.2 Trust Agreement between Norwest Auto Receivables
Corporation, as depositor, and Wilmington Trust Company,
as trustee, dated as of November 13, 1996.
99.1 Sale and Servicing Agreement among Norwest Auto Receivables
Corporation, as seller, Norwest Bank Minnesota, N.A., as
servicer, Norwest Corporation, Wilmington Trust Company, as
trustee, and The Chase Manhattan Bank, as indenture trustee,
dated as of November 13, 1996.
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Exhibit 1.1
NORWEST AUTO TRUST 1996-A
5.465% CLASS A-1 ASSET BACKED NOTES
5.800% CLASS A-2 ASSET BACKED NOTES
5.900% CLASS A-3 ASSET BACKED NOTES
6.100% CLASS A-4 ASSET BACKED NOTES
6.300% ASSET BACKED CERTIFICATES
NORWEST AUTO RECEIVABLES CORPORATION
(Seller)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Servicer)
UNDERWRITING AGREEMENT
New York, New York
November 5, 1996
Lehman Brothers Inc.,
As Representative (the "Representative")
of the Several Underwriters
listed on Schedule I hereto
Ladies and Gentlemen:
Norwest Auto Receivables Corporation, a Delaware corporation (the
"Seller") and a wholly-owned limited-purpose subsidiary of Norwest
Corporation, a Delaware corporation, proposes to sell to the underwriters
named in Schedule I hereto (the "Underwriters") $350,000,000.00 aggregate
principal amount of 5.465% Class A-1 Asset Backed Notes (the "Class A-1
Notes"), $340,000,000.00 aggregate principal amount of 5.800% Class A-2
Asset Backed Notes (the "Class A-2 Notes,"), $220,000,000.00 aggregate
principal amount of 5.900% Class A-3 Asset Backed Notes (the "Class A-3
Notes"), $120,140,000.00 aggregate principal amount of 6.100% Class A-4
Backed Notes (the "Class A-4 Notes" and, together with the Class A-1 Notes,
the "Notes") and $34,259,000.00 aggregate principal amount of certificates
designated 6.300% Asset Backed Certificates, (the "Certificates" and,
together with the Notes, the "Securities") issued by the Norwest Auto Trust
1996-A (the "Trust"). Each Note will be secured by the Contracts (as
hereinafter defined) and certain other property of the Trust and each
Certificate will represent a fractional undivided interest in the Trust.
The assets of the Trust will include, among other things, a pool of motor
vehicle installment sales contracts secured by new and used automobiles and
light-duty trucks (the "Contracts") and certain monies received thereunder
after October 25, 1996 (the "Cutoff Date"), such Contracts to be sold to
the Trust by the Seller and to be serviced for the Trust by Norwest Bank
Minnesota, N.A., a national banking association (the "Servicer").
Each Affiliate (as hereinafter defined) will convey to the Seller the
Contracts owned by it pursuant to a Purchase Agreement (each, a "Purchase
Agreement") to be dated as of the Closing Date (as hereinafter defined)
between such Affiliate and the Seller. The Contracts will be conveyed by
the Seller to the Trust pursuant to a Sale and Servicing Agreement to be
dated as of the Closing Date (the "Sale and Servicing Agreement"), among
the Seller, the Servicer and Wilmington Trust Company, as trustee (the
"Owner Trustee"). The Notes will be issued pursuant to an Indenture to be
dated as of the Closing Date (the "Indenture"), between the Trust and Chase
Manhattan Bank, as indenture trustee (the "Indenture Trustee"). Wilmington
Trust Company will agree to perform certain administrative tasks pursuant
to an Administration Agreement to be dated as of the Closing Date (the
"Administration Agreement"). The Certificates, each representing a
fractional undivided interest in the Trust, will be issued pursuant to a
Trust Agreement to be dated as of the Closing Date (the "Trust Agreement"),
between the Seller and the Trustee. Capitalized terms used herein without
definition shall have the meanings set forth in the Sale and Servicing
Agreement. References herein to "you" are to the Representative. Norwest
Corporation ("Norwest") has agreed to become a party to this Agreement
solely for purposes of Sections 1(d), 1(g), 1(h), 1(j), 7 and 10 hereunder.
Section 1. Representations and Warranties of the Seller. Each of
Norwest (with respect to Norwest only, and as to paragraphs (d), (g), (h)
and (j) only) and the Seller represents and warrants to, and agrees with,
each Underwriter as set forth in this Section 1. Certain terms used in
this Section 1 are defined in paragraph (a) hereof.
(a) A registration statement on Form S-3 (No. 333-7961),
including a form of prospectus and such amendments thereto as may
have been required to the date hereof, relating to the Securities and
the offering thereof in accordance with Rule 415 under the Securities
Act of 1933, as amended (the "Act"), has been filed with the
Securities and Exchange Commission (the "Commission") and such
registration statement, as amended, has become effective. The
Seller, as registrant, will file with the Commission a final
prospectus (including the base prospectus and any prospectus
supplement) in accordance with Rule 424(b). As filed, such final
prospectus, except to the extent that you shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in
the latest Preliminary Prospectus) as the Seller has advised you,
prior to the Execution Time, will be included or made therein. No
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of Seller, threatened by the
Commission.
As used herein, the term the "Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment
or amendments thereto became or become effective. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Preliminary Prospectus" shall mean
any preliminary prospectus (including the base prospectus and any
prospectus supplement) included in the Registration Statement at or
prior to the time the Registration Statement became effective or was
used prior to the Execution Time. Prospectus" shall mean the
prospectus (including the base prospectus (the "Base Prospectus") and
any prospectus supplement (the "Prospectus Supplement")) relating to
the Securities that is first filed pursuant to Rule 424(b) after the
Execution Time. "Registration Statement" shall mean the registration
statement referred to in the preceding paragraph, including
incorporated documents, exhibits and financial statements, in the
form in which it has become effective and, in the event any
post-effective amendment thereto becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended (but only from and after the
effectiveness of such amendment). "Rule 424" means Rule 424 of the
Act. "Affiliate" means each Person (other than the Seller) that is a
party to a Purchase Agreement. "Basic Documents" shall mean each
Purchase Agreement, the Affiliate Security Agreement, the Sale and
Servicing Agreement, the Indenture, the Administration Agreement, the
Trust Agreement, this Agreement, the Securities, and the Depository
Agreements. "Participating Entity" means each of Norwest, the
Seller, the Servicer and each Affiliate.
(b) On the Effective Date, the Registration Statement did and,
when the Prospectus is first filed in accordance with Rule 424(b) and
on the Closing Date, the Prospectus (and any supplements thereto)
will, comply in all material respects with the applicable
requirements of the Act and the rules and regulations of the
Commission (the "Rules and Regulations"); on the Effective Date, the
Registration Statement did not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; and, on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus (together with any
supplement thereto) will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that Seller
does not make any representations or warranties as to the information
contained in or omitted from the Registration Statement, or the
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Seller by you
specifically for use in connection with preparation of the
Registration Statement or the Prospectus (or any supplement thereto).
The Seller hereby agrees with the Representative and the Underwriters
that, for all purposes of this Agreement, the only information
furnished to the Seller by the Underwriters through the
Representative expressly for use in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, and any
preliminary prospectus (the "Underwriter Information") are the first
sentence of the paragraph immediately below the pricing table with
respect to the terms of the offering on the cover page of the
Prospectus Supplement, the capitalized paragraph with respect to
stabilizing transactions in secondary markets in the Securities on
page S-2 of the Prospectus Supplement, and the statements in the
paragraph below the table under the caption "Underwriting" in the
Prospectus Supplement.
(c) The Computer Tape created as of October 25, 1996 (the
"Tape"), and made available to you by the Servicer was complete and
accurate in all material respects as of the date thereof and includes
a description of the Contracts that are described in the List of
Contracts.
(d) Each of the Seller and Norwest is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware and the Servicer is an association duly
organized, validly existing and in good standing as a licensed
national banking association under the laws of the United States, and
each of the Seller, Norwest and the Servicer has all requisite power
and authority to own its properties and conduct its business as
presently conducted and to execute, deliver and perform the Basic
Documents to which it is a party, to authorize the issuance of the
Securities as contemplated by the Basic Documents and to consummate
the transactions contemplated by this Agreement.
(e) The Certificates when executed and authenticated by the
Owner Trustee in accordance with the Trust Agreement and delivered
and paid for pursuant to this Agreement, will be duly issued and will
entitle the holder thereof to the benefits afforded by the Trust
Agreement and the Certificates will conform in all material respects
to the description thereof contained in the Registration Statement
and the Prospectus.
(f) No Participating Entity is in violation of its certificate
of incorporation, articles of association or by-laws or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it or any of its property may be bound, which
violation or default would have a material adverse effect on the
transaction contemplated herein or in the Basic Documents; neither
the sale of the Securities to you, nor the execution and delivery by
any Participating Entity of the Basic Documents nor the consummation
by any Participating Entity of the transactions herein or therein
contemplated, nor the compliance by any Participating Entity with the
provisions hereof or thereof, will conflict with or result in a
breach of, or constitute (with or without notice or lapse of time or
both) a default under, the certificate of incorporation, articles of
association or by-laws of any Participating Entity or any of the
provisions of any law, governmental rule, regulation, judgment,
decree or order binding on any Participating Entity or its
properties, or any of the provisions of any indenture, mortgage,
contract or other instrument to which any Participating Entity is a
party or by which it is bound, or result in the creation or
imposition of any lien, charge or encumbrance upon any of its
property pursuant to the terms of any such indenture, mortgage,
contract or other instrument except any lien created by any of the
Basic Documents.
(g) This Agreement has been duly authorized, executed and
delivered by Norwest and the Seller.
(h) Each of the Basic Documents to which any Participating
Entity is a party has been duly authorized by such Participating
Entity and, when executed and delivered by such Participating Entity,
will constitute a legal, valid and binding instrument enforceable
against such Participating Entity in accordance with its respective
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Basic Documents will conform in all material
respects to the description thereof contained in the Registration
Statement and the Prospectus.
(i) Each Affiliate's assignment and delivery to the Seller of
the Contracts of such Affiliate and security interests in the
Financed Vehicles securing such Contracts and the proceeds thereof
will vest in the Seller, and the Seller's assignment and delivery of
the Trust Estate to the Owner Trustee as of the Closing Date will
vest in the Owner Trustee, all of such Affiliate's or the Seller's,
as the case may be, right, title and interest therein, in each case,
subject to no prior lien, mortgage, security interest, pledge,
adverse claim, charge or other encumbrance.
(j) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of Seller, threatened before any court,
administrative agency, or other tribunal with respect to any
Participating Entity (i) that is required to be disclosed in the
Registration Statement or the Prospectus, (ii) asserting the
invalidity of any of the Basic Documents, (iii) seeking to prevent
the issuance of the Securities or the consummation of any of the
transactions contemplated by any of the Basic Documents, (iv) that
might materially and adversely affect the performance by any
Participating Entity of its obligations under, or the validity or
enforceability of, any of the Basic Documents, (v) seeking to affect
adversely the Federal or state income, excise, franchise or similar
tax attributes of the Securities described in the Prospectus, or (vi)
that, in the reasonable judgment of the Seller, which would have a
material adverse effect on the transaction contemplated herein or in
the Basic Documents.
(k) No authorization, approval, consent or other order or
action of, or filing or registration with any court or governmental
authority or agency is necessary in connection with the sale of the
Securities hereunder, except such as have been obtained and made
under the Act and the Rules and Regulations or state securities laws.
(l) Seller has delivered to you complete and correct copies of
publicly available portions of the Consolidated Reports of Condition
and Income of the Servicer for the year ended December 31, 1995,
copies of the audited consolidated balance sheets of Norwest which
are included in Norwest's 1996 Annual Report to Stockholders and Form
10-K and the unaudited consolidated balance sheet of Norwest as at
June 30, 1996 and the related consolidated statements of income, cash
flows and stockholders' equity for the six month period then ended.
Except as set forth in or contemplated in the Registration Statement
and the Prospectus, there has been no material adverse change in the
condition (financial or otherwise) of Norwest or the Servicer since
December 31, 1995 which would impair the ability of Norwest or the
Servicer to perform its obligations under the Sale and Servicing
Agreement.
(m) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of the Basic
Documents shall have been paid or will be paid by the Seller at or
prior to the Closing Date to the extent then due.
(n) The representations and warranties of each Participating
Entity contained in the Basic Documents are true and correct in all
material respects.
(o) KPMG Peat Marwick LLP are independent public accountants
with respect to the Seller within the meaning of the Act and the
Rules and Regulations.
(p) Each Participating Entity has obtained all necessary
licenses and approvals in each jurisdiction in which failure to
qualify or obtain such license or approval would render any Contract
unenforceable by the Owner Trustee or the Indenture Trustee, as
applicable, on behalf of any Securityholder.
Section 2. Purchase and Sale. (a)Subject to the terms and
conditions and in reliance upon the covenants, representations and
warranties herein set forth, the Seller agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase, the
Initial Principal Amount (the "Initial Principal Amount") of the Class A-1
Notes, Class A-2 Notes and Certificates set forth opposite such
Underwriter's name in Schedule I hereto. The purchase price (the "Purchase
Price") for the (i) Class A-1 Notes shall be equal to 99.87500% of the
aggregate Initial Principal Amount represented by the Class A-1 Notes, (ii)
Class A-2 Notes shall be equal to 99.7784% of the aggregate Initial
Principal Amount represented by the Class A-2 Notes, (iii) Class A-3 Notes
shall be equal to 99.6631% of the aggregate Initial Principal Amount
represented by the Class A-3 Notes, (iv) Class A-4 Notes shall be equal to
99.6986% of the aggregate Initial Principal Amount represented by the Class
A-4 Notes and (v) Certificates shall be equal to 99.4862% of the aggregate
Initial Principal Amount represented by the Certificates.
(b) Payment for the Securities shall be made to the Seller or to its
order by wire transfer of same day funds at the office of Mayer, Brown &
Platt, 190 South LaSalle Street, Chicago, Illinois 60603 at 10:00 A.M.
Chicago, Illinois time on November 13, 1996 or at such other place or time
on the same or such other date, not later than the fifth Business Day
thereafter, as the Representative and the Seller may agree upon in writing
(the "Closing Date"). As used herein, the term "Business Day" means any
day other than a day on which banks generally are permitted or required to
be closed in New York, New York or Minneapolis, Minnesota. Payment of the
Purchase Price shall be made against delivery to the Representative of the
Securities which will be initially represented by one or more certificates
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC"). The interest of beneficial owners of the Securities will
be represented by book entries on the records of DTC and participating
members thereof. Definitive securities will be available only under the
limited circumstances set forth in the Indenture and the Trust Agreement.
Section 3. Covenants of the Seller. The Seller covenants and agrees
with you that:
(a) The Seller will advise you promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus, and
will not effect such amendment or supplement without your consent,
which consent will not unreasonably be withheld, the Seller will also
advise you promptly of the effectiveness of or request by the
Commission for any amendment or supplement of the Registration
Statement or the Prospectus and of the institution or threatening by
the Commission of any stop order proceedings in respect of the
Registration Statement and of the receipt by the Seller of
notification with respect to the suspension of the qualification of
the Notes or Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Seller will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to any of the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend or
supplement the Prospectus to comply with the Act, the Seller promptly
will notify the Representative and prepare and file, or cause to be
prepared and filed, with the Commission and furnish to the
Representative and any dealers identified by the Representative, an
amendment or supplement which will correct such statement or
omission, or an amendment or supplement which will effect such
compliance.
(c) As soon as practicable, but not later than fourteen months
after the end of Seller's current fiscal quarter, the Seller will
cause the Owner Trustee to make generally available to
Securityholders an earnings statement covering a period of at least
12 months beginning after the Effective Date of the Registration
Statement which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 of the rules and regulations thereunder.
(d) The Seller will furnish you copies of the Registration
Statement (one of which will be signed and will include all
exhibits), each related preliminary prospectus, the Prospectus and
all amendments and supplements to such documents, in each case as
soon as available and in such quantities as you may reasonably
request. The Seller will furnish or cause to be furnished to the
Representative copies of all reports on Form SR required by Rule 463
under the Act.
(e) The Seller will arrange for the qualification of the
Securities for offering and sale under the laws of such jurisdictions
in the United States as you may reasonably designate and will
continue such qualifications in effect so long as required for the
distribution of the Securities; provided, however, that the Seller
shall not be required to qualify to do business in any jurisdiction
where it is not so qualified or to take any action which would
subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(f) So long as any of the Securities are outstanding, the
Seller will, or will cause the Servicer to, promptly furnish to you,
copies of (i) all documents required to be distributed to
Securityholders, Security Owners or filed with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any order of the Commission thereunder issued to
the Seller or the Servicer, (ii) copies of each Servicer's Report
and the annual statements of compliance delivered to the Owner
Trustee or Indenture Trustee pursuant to Article IV of the Sale and
Servicing Agreement and the annual independent certified public
accountant's servicing reports furnished to Owner Trustee or
Indenture Trustee pursuant to Article IV of the Sale and Servicing
Agreement, by first-class mail at the same time such statements and
reports are furnished to the Owner Trustee or Indenture Trustee,
(iii) copies of each amendment to any of the Basic Documents, (iv)
copies of all other reports and communications to any Securityholders
or Security Owners, or to or from the Owner Trustee or Indenture
Trustee, the Clearing Agency, any Rating Agency or the Commission
relating to the Trust or the Securities, (v) copies of each Opinion
of Counsel and Officer's Certificate delivered pursuant to the Sale
and Servicing Agreement, as soon as available, and (vi) from time to
time, such other information concerning the Trust or the Seller as
the Representative may reasonably request.
(g) On or before the Closing Date, the Seller shall cause the
computer records relating to the Contracts to be marked to show the
Owner Trustee's absolute ownership of the Contracts, and shall not
permit any Participating Entity to take any action inconsistent with
the Owner Trustee's ownership of such Contracts, other than as
permitted by the Basic Documents.
(h) If required, the Seller will prepare, and file or transmit
the Prospectus for filing with the Commission in accordance with Rule
424(b) of the Act.
(i) If required by law, the Seller will register the
Securities pursuant to the Exchange Act, prior to April 29, 1997.
(j) To the extent, if any, that the rating provided with
respect to the Securities by the Rating Agency or Agencies that
initially rate the Securities is conditional upon the furnishing of
documents or the taking of any other actions by any Participating
Entity, the Seller shall furnish or cause such other Participating
Entity to furnish such documents and take any such other actions.
Section 4. Payment of Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing, filing and delivery under the Act
of the Registration Statement as originally filed and of each amendment
thereto, the Prospectus and any preliminary prospectus (including in each
case all exhibits, amendments and supplements thereto), (ii) the issuance
and delivery of the Securities to the Underwriters, (iii) the fees and
disbursements of all counsel and accountants (other than that portion of
the fees and disbursements of Mayer, Brown & Platt which were incurred
solely in their role as Underwriters' counsel, which portion will be paid
by the Underwriters), (iv) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(e),
including filing fees and the fees and disbursements of counsel for you in
connection therewith and in connection with the preparation of any blue sky
survey, (v) the printing and delivery to you of copies of the Basic
Documents and the blue sky survey (including exhibits, amendments and
supplements thereto), (vi) any fees charged by Rating Agencies for the
rating of the Securities, (vii) the fees, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.,
(viii) any fees and expenses payable to the Clearing Agency, and (ix) any
fees and expenses of the Owner Trustee, the Indenture Trustee and their
respective counsel.
Section 5. Conditions of the Obligations of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Securities will
be subject to the accuracy of the representations and warranties on the
part of the Seller herein, to the accuracy of the statements of officers of
the Seller made pursuant to the provisions hereof, to the performance by
the Seller of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the Closing Date, you shall have received a
letter, dated as of the Closing Date, of KPMG Peat Marwick LLP,
Certified Public Accountants, substantially in the form of the draft
to which you have previously agreed and otherwise in form and
substance satisfactory, addressed to you and your counsel.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 1 hereof,
and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Seller or you, shall be contemplated by the
Commission or by any authority administering any state securities or
blue sky law.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change in or
affecting particularly the business or properties of any
Participating Entity which, in your reasonable judgment, materially
impairs the investment quality of the Securities; (ii) any
downgrading in the rating of the debt securities (if any) of any
Participating Entity by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act)
which, in your reasonable judgment, materially impairs the investment
quality of the Securities; (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of Norwest on any exchange;
(iv) any banking moratorium declared by Federal, Minnesota or New
York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States of America is involved, any
declaration of war by Congress, or any other substantial national or
international calamity or emergency if, in your reasonable judgment,
the effects of any such outbreak, escalation, declaration, calamity,
or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Securities.
(d) The Seller shall have delivered to you a certificate,
dated the Closing Date, signed by its President or Treasurer or other
officer acceptable to the Representative to the effect that the
signer of such certificate has carefully examined each Basic
Document, the Prospectus (and any supplement thereto) and the
Registration Statement and that:
(i) the representations and warranties of each
Participating Entity in the Basic Documents are true and correct
at and as of the Closing Date as if made on and as of the
Closing Date (except to the extent they expressly relate to an
earlier date);
(ii) each Participating Entity has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied under this Agreement at or prior to the
Closing Date;
(iii)no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the knowledge of the
signer, threatened; and
(iv) since the date of the most recent financial
statements of Norwest delivered to you pursuant to Section 1(l)
hereof, there has been no material adverse change in the
condition (financial or otherwise) of any Participating Entity
whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the
Registration Statement and the Prospectus, which would impair
the ability of such Participating Entity to perform its
obligations under the Sale and Servicing Agreement and there has
been no material adverse change, or any development involving a
prospective material adverse change, in or affecting
particularly the portfolio of Motor Vehicle Loans of any
Participating Entity or the business or properties of the Trust
or any Participating Entity.
(e) You shall have received from Stanley S. Stroup, General
Counsel of Norwest, the sole stockholder of the Seller, an opinion
dated the Closing Date to the effect that:
(i) Each Affiliate has been duly organized as an
association licensed as a national banking association and is
validly existing and in good standing under the laws of the
United States, and the Seller and Norwest have been duly
organized and are validly existing as corporations in good
standing under the laws of Delaware and each Participating
Entity is duly qualified to do business and is in good standing
under the laws of each jurisdiction where the failure to so
qualify would have a material adverse impact on the conduct of
its business, and has obtained all necessary licenses and
approvals in each jurisdiction in which failure to qualify or
obtain such license or approval would render any Contract
unenforceable by the Owner Trustee or the Indenture Trustee, as
applicable, on behalf of any Securityholder, and has full power
and authority to own its properties, to conduct its business as
described in the Registration Statement and the Prospectus, to
enter into and perform its obligations under the Basic Documents
to which it is a party, to consummate the transactions
contemplated hereby and thereby, and now has the power,
authority and legal right to acquire, own, sell and service the
Contracts;
(ii) each Basic Document has been duly authorized,
executed and delivered by each Participating Entity that is a
party thereto;
(iii)neither the transfer of the Contracts by any
Participating Entity to the Seller or by the Seller to the
Trust, nor the assignment of the security interest of any
Participating Entity or the Seller in the Financed Vehicles, nor
the issuance or sale of the Securities nor the execution nor the
delivery of any Basic Document to which any Participating Entity
or the Seller is a party, nor the issuance or delivery of the
Securities, nor the consummation of any of the transactions
contemplated herein or therein, nor the fulfillment of the terms
of the Securities, or any Basic Document to which any
Participating Entity or the Seller is a party, will conflict
with or violate, result in a material breach of or constitute a
default under (i) any term or provision of the charter or
by-laws of any Participating Entity or the Seller or any statute
or regulation currently applicable to any Participating Entity,
the Seller or the Trust, (ii) any term or provision of any order
known to such counsel to be currently applicable to any
Participating Entity, the Seller or the Trust of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over any Participating Entity, the Seller or
the Trust, as the case may be, or (iii) any term or provision of
any indenture or other agreement or instrument known to such
counsel to which any Participating Entity, the Seller or the
Trust is a party or by which any of them or any of their
properties are bound;
(iv) assuming (i) that the standard procedures of each
Affiliate with respect to the perfection of a security interest
in new or used automobiles or light duty trucks financed
directly or indirectly by such Affiliate pursuant to Motor
Vehicle Loans in the ordinary course of business of such
Affiliate have been followed with respect to the perfection of
security interests in the Financed Vehicles, and (ii) the
genuineness of all signatures and the authority and legal
capacity of all signatories on documents delivered in connection
therewith, such Affiliate has acquired or will acquire a
perfected security interest in the Financed Vehicles;
(v) except, as otherwise disclosed in the Prospectus or
Registration Statement, there is no pending or, to the best of
such counsel's knowledge, threatened action, suit or proceeding
before any court or governmental agency, authority or body or
any arbitrator with respect to any Basic Document or any of the
transactions contemplated therein or with respect to any
Affiliate, the Seller or the Trust which, in the case of any
such action, suit or proceeding with respect to any Affiliate,
the Seller or the Trust, if adversely determined, would have a
material adverse effect on the Securityholders or the Trust or
upon the ability of any Affiliate or the Seller to perform its
obligations under the Basic Documents to which it is a party,
and the statements included in the Registration Statement,
Preliminary Prospectus and Prospectus describing legal
proceedings, contracts and other documents relating to any
Affiliate or the Seller, the Contracts, the business of any
Affiliate, the Seller or the Trust fairly summarize the matters
therein described;
(vi) the Registration Statement has become effective under
the Act, and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act;
(vii)assuming the due authorization, execution and
delivery of each Basic Document (other than this Agreement) by
each party thereto other than the Participating Entities, each
Basic Document (other than this Agreement) has been duly
authorized, executed and delivered by the Participating Entity
that is a party thereto and constitutes the valid and legally
binding obligation of such Participating Entity, enforceable
against such Participating Entity in accordance with its
respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditor's rights and to
general equity principles;
(viii)no approval, authorization, consent, order,
registration, filing, qualification, license or permit of or
with any court or governmental agency or body is required for
the consummation by any Affiliate, the Seller or the Trust
(except that, with respect to the Trust, such opinion may be
limited to any court or governmental agency or body of the State
of Minnesota) of the transactions contemplated in the Basic
Documents, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any
jurisdiction inside the United States in connection with the
purchase and distribution of the Securities by the Underwriters
and such filings or other approvals as have been made or
obtained; and
(ix) immediately prior to the transfer of Contracts by
each Affiliate pursuant to the applicable Purchase Agreement and
by the Seller pursuant to the Sale and Servicing Agreement, such
Affiliate or the Seller, as applicable, was the sole owner of
all right, title and interest in the Contracts (subject to the
Obligors' rights thereunder as debtor) and the other property to
be transferred by it.
Such counsel shall also state that nothing has come to such
counsel's attention that would lead such counsel to believe that the
Registration Statement, as of its effective date, or the Prospectus
(other than the financial statements and related financial and
statistical information therein, as to which such counsel need not
express an opinion), as of its date, contained any untrue statement
of material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
To the extent such opinion involves the application of laws of
any jurisdiction other than the State of Minnesota, the federal law
of the United States and Delaware General Corporation Law, to the
extent deemed proper and stated in such opinion such counsel(s) may
assume that the laws of such other jurisdictions do not differ
materially from the laws of the State of Minnesota, and (B) may rely
as to matters of fact on certificates of responsible officers of the
Trust, any Participating Entity and public officials. References to
the Prospectus in this paragraph (e) include any supplements thereto.
(f) You shall have received an opinion of Mayer, Brown &
Platt, special counsel to the Participating Entities, addressed to
you, dated the Closing Date and satisfactory in form and substance to
you and your counsel, to the effect that:
(i) each Participating Entity is validly existing and in
good standing under the laws of its respective jurisdiction of
organization;
(ii) the Underwriting Agreement has been duly authorized,
executed and delivered by Norwest and the Seller;
(iii)each Basic Document (other than the Underwriting
Agreement) has been duly authorized, executed and delivered by
the Participating Entity that is a party thereto and constitutes
the valid and legally binding obligation of such Participating
Entity, enforceable against such Participating Entity in
accordance with its respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditor's rights and to general equity principles;
(iv) no approval, authorization, consent or order of any
court or governmental agency or body which has not already been
obtained or given is required in connection with the valid and
proper assignment of the Contracts by the Affiliates to the
Seller or by the Seller to the Trust, or in connection with the
valid and proper issuance and sale of the Notes and the
Certificates pursuant to the Basic Documents, except for (i) the
filing of Uniform Commercial Code financing statements, and (ii)
the filing with the Securities and Exchange Commission of a Form
8-K containing as exhibits the execution copies of the material
Basic Documents;
(v) the Certificates have been duly and validly
authorized and, assuming their due execution, authentication and
issuance by the Owner Trustee, will be duly and validly issued
and outstanding and will be entitled to the benefits of the
Trust Agreement;
(vi) the Basic Documents each conform in all material
respects with the descriptions thereof contained in the
Registration Statement and the Prospectus;
(vii)the Class A-1 Notes will be "eligible securities"
within the meaning of paragraph (a)(9) of Rule 2a-7 under the
Investment Company Act of 1940, as amended;
(viii)the Trust Agreement is not required to be qualified
and the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and neither the Seller nor
the Trust created by the Trust Agreement is required to be
registered under the Investment Company Act of 1940, as amended;
(ix) the Registration Statement and the Prospectus, and
each amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations;
(x) such counsel confirms the Federal income tax
characterization of the Certificates, the Notes and the Trust
and the Federal income tax treatment of the issuance of such
Certificates and Notes set forth under the caption "Federal
Income Tax Consequences" in the Prospectus and Prospectus
Supplement and that the statements in the Registration Statement
and Prospectus under the headings "Federal Income Tax
Consequences" and "ERISA Considerations," to the extent that
they constitute matters of federal law or legal conclusions with
respect thereto, have been prepared or reviewed by such counsel
and are correct in all material respects;
(xi) pursuant to the terms of the Purchase Agreements and
the Sale and Servicing Agreement, the applicable Affiliates have
acquired, and have transferred to the Seller, and the Seller has
acquired, and has transferred to the Trust, and the Trust has
acquired, a first priority perfected security interest in the
Minnesota Financed Vehicles, and no filing or other action
(other than certain financing statements required to be filed
pursuant to a separate opinion of Mayer, Brown & Platt with
respect to the perfection of the interests in the related
chattel paper) is necessary to perfect the transfer and
assignment of applicable Affiliate's security interest in the
Minnesota Financed Vehicles to Seller and to perfect the
security interest of the Trust in the Minnesota Financed
Vehicles;
(xii)the Contracts constitute "chattel paper" or
"accounts," as those terms are defined in the UCC in effect in
the jurisdiction in which the chief executive office of the
transferring Affiliate is located;
(xiii) each Purchase Agreement constitutes either (i) a
valid sale, transfer and assignment of the Contracts from the
applicable Affiliate to the Seller, which upon filing of the
specified financing statements in the applicable filing offices,
subject to the qualifications expressed in such opinion, will be
enforceable against creditors of, and purchasers from, such
Affiliate or (ii) the creation of a security interest in favor
of the Seller, which upon filing of the specified financing
statements in the applicable filing offices, subject to the
qualifications expressed in such opinion, will be a valid
perfected security interest in the Contracts;
(xiv)the Sale and Servicing Agreement constitutes either
(i) a valid sale, transfer and assignment of the Contracts from
the Seller to the Trust, which upon filing of the specified
financing statements in the applicable filing offices, subject
to the qualifications expressed in such opinion, will be
enforceable against creditors of, and purchasers from, the
Seller or (ii) the creation of a security interest in favor of
the Trust, which upon filing of the specified financing
statements in the applicable filing offices, subject to the
qualifications expressed in such opinion, will be a valid
perfected security interest in the Contracts;
(xv) the Indenture constitutes the creation of a security
interest in favor of the Indenture Trustee, which upon filing of
the specified financing statements in the applicable filing
offices, subject to the qualifications expressed in such
opinion, will be a valid perfected security interest in the
Contracts;
(xvi)to the extent that any Purchase Agreement does not
constitute a valid sale, transfer and assignment of the
Contracts from the applicable Affiliate to the Seller, the
Affiliate Security Agreement constitutes the creation of a
security interest in favor of the Trust, which upon filing of
the specified financing statements in the applicable filing
offices, subject to the qualifications expressed in such
opinion, will be a valid perfected security interest in the
Contracts;
(xvii)when the specified financing statements have been
filed in the applicable filing offices, all filings necessary
under applicable law to perfect (i) the security interest or
ownership interest transferred by each Affiliate in its
Contracts to the Seller pursuant to the Purchase Agreement to
which such Affiliate is a party, (ii) the security interest or
ownership interest transferred by the Seller in the Contracts to
the Trust pursuant to the Sale and Servicing Agreement, and
(iii) the security interest transferred by the Trust in the
Contracts to the Indenture Trustee pursuant to the Indenture,
respectively, will have been made and, provided that such
Affiliate, the Seller and the Trust do not relocate their
respective principal places of business, no other filings (other
than the filing of continuation statements) will need to be made
to maintain the perfection of such interest, and, based solely
on such counsel's review of the applicable lien search reports,
the interest of the Seller, the Trust and the Indenture Trustee,
respectively, will constitute a perfected security or ownership
interest prior to any other security interest not created under
the Basic Documents that may be perfected solely by the filing
of a financing statement under the Uniform Commercial Code as in
effect in the jurisdiction in which each such Affiliate, the
Seller and the Trust, respectively, is located;
(xviii)when the specified financing statements have been
filed in the applicable filing offices, all filings necessary
under applicable law to perfect the security interest granted by
each Affiliate in its Contracts to the Trust pursuant to the
Affiliate Security Agreement will have been made and, provided
that such Affiliate does not relocate its principal place of
business no other filings (other than the filing of continuation
statements) need be made to maintain the perfection of such
interest, and, based solely on such counsel's review of the
applicable lien search reports, the interest of the Trust will
constitute a perfected security interest prior to any other
security interest not created under the Basic Documents that may
be perfected solely by the filing of a financing statement under
the Uniform Commercial Code as in effect in the jurisdiction in
which each such Affiliate is located;
(xix)when the Securities Intermediary acquires an Eligible
Investment using funds in the Reserve Account in accordance with
the Sale and Servicing Agreement and accepts such Eligible
Investment for credit to the Reserve Account, the Indenture
Trustee will have a perfected security interest in the resulting
"security entitlement," as such term is used in Section
8-102(a)(17) of the UCC, and in the proceeds thereof and, by
virtue of the Indenture Trustee's control over the Reserve
Account, the Indenture Trustee's security interest will be prior
to any other security interest in such security entitlement
under the UCC; and
(xx) in the event that the Federal Deposit Insurance
Corporation were to be appointed as conservator or receiver for
any Affiliate pursuant to Section 11(c) of the Federal Deposit
Insurance Act, and a court were to determine that the transfer
to the Seller by such Affiliate pursuant to the Purchase
Agreement of such Affiliate's right, title, and interest in and
to its Contracts was not an absolute sale of those Contracts by
such Affiliate to the Seller, if the matter were properly
briefed and presented, a court would hold that the security
interest granted by such Affiliate under the Affiliate Security
Agreement would be enforceable against such Affiliate
notwithstanding the appointment of the Federal Deposit Insurance
Corporation as receiver or conservator for such Affiliate.
Such counsel shall also state that nothing came to its attention
that would lead such counsel to believe that the Registration
Statement, at the effective date thereof, or the Prospectus, at date
thereof, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading (other than financial and statistical information
contained therein as to which such counsel need express no opinion).
(g) You shall have received from Mayer, Brown & Platt, in its
capacity as special counsel for the Participating Entities, a
favorable opinion dated the Closing Date, with respect to the
nonconsolidation under the Bankruptcy Code of the assets and
liabilities of the Seller on the one hand, and those of Norwest, on
the other, in the event Norwest were to become the subject of a case
under the Bankruptcy Code.
(h) You shall have received from Mayer, Brown & Platt, in its
capacity as counsel for the Representative, a favorable opinion dated
the Closing Date, with respect to the issuance and sale of the
Securities, the Sale and Servicing Agreement, the Registration
Statement, the Prospectus and such other related matters as the
Representative and the Underwriters may reasonably require; and the
Seller shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass on all
such matters.
In giving their opinions, Mayer, Brown & Platt may rely (A) as to
matters of Minnesota law upon the opinions of counsel delivered pursuant to
subsection (e) above, (B) as to matters involving the application of laws
of any jurisdiction other than the State of New York, the State of
Illinois, the United States or the General Corporation Law of the State of
Delaware, to the extent deemed proper and specified in such opinion, upon
such standard compilations of applicable law in such jurisdictions or the
opinion of other counsel of good standing believed to be reliable, and (C)
as to matters of fact, to the extent deemed proper and as stated therein on
certificates of responsible officers of the Trust or any Participating
Entity and public officials.
(i) You shall have received an opinion or opinions of Faegre &
Benson, Minnesota counsel for the Servicer, addressed to you, dated
the Closing Date and satisfactory in form and substance to you and
your counsel, to the effect that (i) the Trust will not be subject to
Minnesota income or franchise taxes, except that if the Trust is
treated as a partnership, it may be subject to the minimum fee
imposed by Minnesota Statutes Section 290.0922, which fee currently
is limited to $5,000 per year, (ii) the Notes will be characterized
as debt for Minnesota income and franchise tax purposes, and (iii)
holders of Notes or Certificates who are not residents of or
otherwise subject to tax in Minnesota will not be subject to
Minnesota income or franchise taxes with respect to income derived
from the Notes or Certificates.
(j) The Representative shall have received evidence
satisfactory to it that, on or before the Closing Date, UCC-1
financing statements have been filed in the offices of the
Secretaries of State of Minnesota and any other filing locations
required by any opinion of counsel reflecting the interest of each of
the Seller, the Trust and the Indenture Trustee in the Contracts and
the proceeds thereof.
(k) The Representative and the Seller shall have received from
counsel for the Indenture Trustee a favorable opinion, dated the
Closing Date and satisfactory in form and substance to the
Representative and the Seller and their counsel to the effect that:
(i) the Indenture Trustee is a state banking corporation
duly organized, validly existing and in good standing under the
laws of the State of New York and has full power and authority
to execute, deliver and perform its obligations under the Basic
Documents to which it is a party;
(ii) the Basic Documents to which it is a party have been
duly authorized, executed and delivered by the Indenture Trustee
to which it is a party;
(iii)the Basic Documents to which it is a party constitute
the valid and binding obligations of the Indenture Trustee
enforceable against the Indenture Trustee in accordance with
their terms, except insofar as the validity, binding nature and
enforceability of the Indenture Trustee's obligations thereunder
may be limited by the effect of (i) insolvency, reorganization,
arrangement, moratorium, fraudulent transfer and other similar
laws, (ii) the discretion of any court of competent jurisdiction
in awarding equitable remedies, including, without limitation,
specific performance or injunctive relief and (iii) the effect
of general principles of equity embodied in New York statutes
and common law; provided, however, that such counsel need
express no opinion as to the enforceability of the provisions of
Section 11.17 of the Indenture and Section 10.12 of the Sale and
Servicing Agreement; and
(iv) the Notes have been duly authenticated by the
Indenture Trustee.
(l) The Representative and the Seller shall have received from
counsel for the Trust a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Representative and the
Seller and their counsel to the effect that:
(i) the Trust has been duly formed and is validly
existing as a business trust under Delaware Business Trust Act,
12 Del. C. 3801, et seq., and has the power and authority
under the Trust Agreement and such Act to execute, deliver and
perform its obligations under the Basic Documents;
(ii) the Basic Documents have been duly authorized,
executed and delivered by the Trust and the Certificates have
been validly issued and are entitled to the benefits of the
Trust Agreement;
(iii)the Trust Agreement is a legal, valid and binding
obligation of the Seller and Wilmington Trust, enforceable
against the Seller and Wilmington Trust, in accordance with its
terms;
(iv) neither the execution, delivery and performance by
the Trust of the Basic Documents, nor the consummation by the
Trust of any of the transactions by the Trust contemplated
thereby, requires the consent or approval of, the withholding of
objection on the part of, the giving of notice to, the filing,
registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency of
the State of Delaware, other than the filing of the Certificate
of Trust with the Secretary of State of Delaware (which
Certificate of Trust had been duly filed); and
(v) neither the execution, delivery and performance by
the Trust of the Basic Documents, nor the consummation by the
Trust of the transactions contemplated thereby, is in violation
of the Trust Agreement or of any law, rule or regulation of the
State of Delaware applicable to the Trust.
(m) The Representative and the Seller shall have received from
counsel for the Owner Trustee a favorable opinion, dated the Closing
Date and satisfactory in form and substance to the Representative and
the Seller and their counsel to the effect that:
(i) Wilmington Trust is duly incorporated and is validly
existing as a banking corporation under the laws of the State of
Delaware and has the power and authority to execute, deliver and
perform the Trust Agreement and the Administration Agreement;
(ii) each of the Trust Agreement and the Administration
Agreement has been duly authorized, executed and delivered by
Wilmington Trust;
(iii)neither the execution, delivery and performance by
Wilmington Trust of the Trust Agreement and the Administration
Agreement, nor the consummation of any of the transactions by
Wilmington Trust contemplated thereby, requires the consent or
approval of, the withholding of objection on the part of, the
giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any
governmental authority or agency of the State of Delaware or the
United States of America governing the banking or trust powers
of Wilmington Trust;
(iv) neither the execution, delivery and performance by
Wilmington Trust of the Trust Agreement and the Administration
Agreement, nor the consummation of any of the transactions by
Wilmington Trust contemplated thereby, is in violation of the
charter or bylaws of Wilmington Trust or of any law,
governmental rule or regulation of the State of Delaware or of
the United States of America governing the banking or trust
powers of Wilmington Trust or, to the knowledge of such counsel
of any indenture, mortgage, bank credit agreement, note or bond
purchase agreement, long-term lease, license or other agreement
or instrument to which it is a party or by which it is bound or,
to the knowledge of such counsel, of any judgment or order
applicable to Wilmington Trust; and
(v) to the knowledge of such counsel, there are no
proceedings pending or threatened against Wilmington Trust in
any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the
aggregate, would have a material adverse effect on the right,
power and authority of Wilmington Trust to enter into or perform
its obligations under the Trust Agreement and the Administration
Agreement.
(n) On or before the Closing Date, you shall have received
evidence satisfactory to you that the Class A-1 Notes and Class A-2
Notes shall have been rated the highest possible rating by the Rating
Agencies and the Certificates shall have been rated at least "A" by
the Rating Agencies, and neither of the Rating Agencies shall have
placed the Notes or Certificates under review with possible negative
implications.
(o) On the Closing Date, you and your counsel shall have
received any opinion letters delivered by the Seller's counsel to the
Rating Agencies with respect to the rating of the Notes and the
Certificates and such counsel shall deliver a letter to you and your
counsel stating that you and your counsel may conclusively rely on
any such opinion letters.
(p) Any taxes, fees and other governmental charges which are
due and payable in connection with the execution, delivery and
performance of the Basic Documents shall have been paid by Seller at
or prior to the Closing Date.
(q) The Seller shall have made or caused to be made a deposit
in the Reserve Account in the amount of the Reserve Account Initial
Deposit.
(r) The Underwriters and counsel for the Underwriters shall
have received such information, certificates and documents as the
Underwriters or counsel for the Underwriters may reasonably request.
The Seller will provide or cause to be provided to you such
conformed copies of such opinions, certificates, letters and
documents as you reasonably request.
Section 6. Reimbursement of Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to your
obligations set forth in Section 5 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Seller to perform any agreement
herein or to comply with any provision hereof other than by reason of a
default by the Underwriters, the Seller will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
Section 7. Indemnification.
(a) Each of Norwest and the Seller jointly and severally
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange
Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus or in
any amendment or supplement or any preliminary prospectus or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that neither Norwest nor the Seller will be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein
in reliance upon and in conformity with the Underwriter Information;
provided further, however, that neither the Seller nor Norwest will
be liable to any Underwriter or any person controlling such
Underwriter with respect to any untrue statement or omission made in
any Preliminary Prospectus that is corrected in the Prospectus (or
any amendment or supplement thereto) if the person asserting any such
loss, claim, damage or liability purchased Securities from such
Underwriter but was not sent or given a copy of the Prospectus (as
amended or supplemented) at or prior to the written confirmation of
the sale of such Securities to such person in any case where such
delivery of the Prospectus (as amended or supplemented) is required
by the Act, unless such failure to deliver the Prospectus (as amended
or supplemented) was a result of noncompliance by the Seller with
this Agreement.
(b) Each Underwriter agrees to indemnify and hold harmless
Norwest, Seller and each person who controls Norwest or Seller within
the meaning of Section 15 of the Act or Section 20 of the Exchange
Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Underwriter Information
in the Registration Statement or the Prospectus or in any amendment
or supplement or any preliminary prospectus or arise out of or are
based upon the omission or alleged omission to state in such
Underwriter Information a material fact required to be stated therein
or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage,
liability or action.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof, but the
omission to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise
than under this Section 7. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled,
jointly with any other indemnifying party similarly notified, to
retain counsel reasonably satisfactory to such indemnified party to
represent the indemnified party in such action; provided, however,
that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to
appoint counsel to defend such action and approval by the indemnified
party of such counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion
of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than
one separate counsel, approved by the Underwriters in the case of
paragraph (a) of this Section 7, representing the indemnified parties
under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). No indemnifying party
shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of
such indemnified person from all liability on claims that are the
subject matter of such proceeding.
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph
(a) or (b) of this Section 7 is due in accordance with its terms but
is for any reason held by a court to be unavailable on grounds of
policy or otherwise, each indemnifying party shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating
or defending same) to which the indemnified party may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Participating Entities on the one hand and the
Underwriters on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the
Participating Entities on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted
in such losses, claims, damages and liabilities (or actions in
respect thereof) as well as any other relevant equitable
considerations. The relative benefits received by the Participating
Entities on the one hand and the Underwriters on the other, shall be
deemed to be in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Prospectus
bears to the sum of such discount and the purchase price of the
Securities specified in Schedule I hereto and each of Norwest and the
Seller is jointly and severally responsible for the balance;
provided, however, that the liability of the Underwriters shall not
exceed in the aggregate the amount of such discount. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
relative fault of the Participating Entities on the one hand and
Underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Participating Entities or
by any of the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. For purposes of this Section 7,
each person who controls an Underwriter within the meaning of the Act
shall have the same rights to contribution as such Underwriter, and
each person who controls Norwest or the Seller within the meaning of
either the Act or the Exchange Act, each officer of the Seller who
shall have signed the Registration Statement and each director of the
Seller shall have the same rights to contribution as Norwest and the
Seller. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may
be made against any other party or parties under this paragraph (d),
notify such party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
(e) Norwest, the Seller and Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified
party in connection with investigating or defending any such action
or claim.
(f) The indemnity and contribution agreements contained in
this Section 7 are in addition to any liability which the
indemnifying party may otherwise have to the indemnified party
referred to above.
Section 8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and
such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the aggregate amount of Securities set forth opposite
their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities set forth in Schedule I hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do
not purchase all the Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter, the Trust or the Seller. In
the event of a default by any Underwriter as set forth in this Section 8,
the Closing Date shall be postponed for such period, not exceeding seven
days, as the Underwriters shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Seller and any nondefaulting Underwriter for damages occasioned
by its default hereunder.
Section 9. Termination. You may terminate this Agreement
immediately upon notice to the Seller, at any time prior to the Closing
Date relating thereto (i) if any change in or affecting particularly the
business or properties of any Participating Entity which, in your
reasonable judgment materially impairs the investment quality of the
Securities; (ii) if there has occurred any outbreak or escalation of
hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your
judgment, impracticable to market the Securities or enforce contracts for
the sale of the Securities, or (iii) if trading in any securities of
Norwest has been suspended by the Commission or a national securities
exchange, or if trading generally on the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by
Federal, Minnesota or New York State authorities.
Section 10. Representations and Indemnities To Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Trust, Norwest, the Seller or the officers of each of
them and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of you or the Trust, Norwest, the Seller
or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the
Securities. The provisions of Section 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
Section 11. Representations of Underwriters. The Representative
will act for the several Underwriters in connection with the transactions
described in this Agreement, and any action taken by the Representative
under this Agreement will be binding upon all of the Underwriters.
Section 12. Notices. All communications hereunder shall be in
writing and effective only on receipt, and, if sent to the Underwriters,
will be mailed, delivered or telegraphed and confirmed to them c/o the
Representative at 3 World Financial Center, New York, New York 10285-1200,
Attention: Asset-Backed Securities Department; if sent to Norwest or the
Seller, will be mailed, delivered or telegraphed and confirmed to them at
Norwest Center, Sixth and Marquette, Minneapolis, Minnesota 55479-1026,
attention of General Counsel.
Section 13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This
Agreement supersedes all prior agreements and understandings relating to
the subject matter hereof.
Section 14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
the officers, directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
Section 15. Miscellaneous. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, but only
by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. The headings in
this Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof.
<PAGE>
If you are in agreement with the foregoing, please sign three
counterparts hereof and return one to the Seller and one to Norwest
whereupon this letter and your acceptance shall become a binding agreement
among the Seller, Norwest and the several Underwriters.
Very truly yours,
NORWEST AUTO RECEIVABLES CORPORATION
By: /s/ William H. Queenan
Name: William H. Queenan
Title: President
The foregoing Agreement is hereby confirmed
and accepted as of the date hereof.
LEHMAN BROTHERS INC., as
Representative of the Underwriters
By: /s/ William Lighten
Name: William Lighten
Title: Managing Director
The undersigned agrees to, and has become
a party to this Agreement solely with
respect to, the provisions of Sections
1(d), 1(g), 1(h), 1(j), 7 and
10 hereunder.
NORWEST CORPORATION
By: /s/ John T. Thornton
Name: John T. Thornton
Title: Executive Vice President
and Chief Financial Officer
<PAGE>
<TABLE>
<CAPTION>
Schedule I
Initial Initial Initial Initial Initial
Principal Amount Principal Amount Principal Amount Principal Amount Certificate
of Class A-1 of Class A-2 of Class A-3 of Class A-4 Balance
Asset-Backed Asset-Backed Asset-Backed Asset-Backed of Asset-Backed
Notes Notes Notes Notes Certificates
--------------- ---------------- --------------- ---------------- ----------------
<S> <C> <C> <C> <C> <C>
Lehman Brothers. . . . $ 87,500,000 $ 85,000,000 $ 55,000,000 $ 30,035,000 $ 17,130,000
Norwest Investment
Services . . . . . . 87,500,000 85,000,000 55,000,000 30,035,000 17,129,000
Morgan Stanley & Co.
Incorporated . . . . 87,500,000 85,000,000 55,000,000 30,035,000 17,129,000
UBS Securities LLC . . 87,500,000 85,000,000 55,000,000 30,035,000
------------ ------------ ------------ ------------ ------------
Total: . . . . . . . . $350,000,000 $340,000,000 $220,000,000 $120,140,000 $ 34,259,000
============ ============ ============ ============ ============
</TABLE>
<PAGE>
EXHIBIT 4.1
===============================================================================
NORWEST AUTO TRUST 1996-A
Class A-1 5.465% Asset Backed Notes
Class A-2 5.800% Asset Backed Notes
Class A-3 5.900% Asset Backed Notes
Class A-4 6.100% Asset Backed Notes
INDENTURE
Dated as of November 13, 1996
THE CHASE MANHATTAN BANK
as Indenture Trustee
==============================================================================
<PAGE>
CROSS REFERENCE TABLE <F1>
TIA Indenture
Section Section
310 (a) (1)...................................... 6.11
(a) (2)...................................... 6.11
(a) (3)...................................... 6.10
(a) (4)...................................... N.A <F2>
(a) (5)...................................... 6.11
(b).......................................... 6.8; 6.11
(c).......................................... N.A.
311 (a).......................................... 6.12
(b).......................................... 6.12
(c).......................................... N.A.
312 (a).......................................... 7.1
(b).......................................... 7.2
(c).......................................... 7.2
(d).......................................... 7.4
313 (a).......................................... 7.4
(b) (1)...................................... 7.4
(b) (2)...................................... 11.5
(c).......................................... 7.4
(d).......................................... 7.3
314 (a).......................................... 11.15
(b).......................................... 11.1
(c) (1)...................................... 11.1
(c) (2)...................................... 11.1
(c) (3)...................................... 11.1
(d).......................................... 11.1
(e).......................................... 11.1
(f).......................................... 11.1
315 (a).......................................... 6.1
(b).......................................... 6.5; 11.5
(c).......................................... 6.1
(d).......................................... 6.1
(e).......................................... 5.13
316 (a) (last sentence).......................... 2.7
(a) (1) (A).................................. 5.11
(a) (1) (B).................................. 5.12
(a) (2)...................................... N.A.
(b).......................................... 5.7
(c).......................................... N.A.
317 (a) (1)...................................... 5.3
(a) (2)...................................... 5.3
(b).......................................... 3.3
318 (a).......................................... 11.7
- -------------------------
<F1> Note: This Cross Reference Table shall not, for any purpose,
be deemed to be part of this Indenture.
<F2> N.A. means Not Applicable
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE.......... 2
SECTION 1.1 Definitions.................................. 2
SECTION 1.2 Incorporation by Reference of Trust
Indenture Act................................ 2
SECTION 1.3 Other Interpretive Provisions................ 3
ARTICLE II THE NOTES.......................................... 3
SECTION 2.1 Form......................................... 3
SECTION 2.2 Execution, Authentication and Delivery....... 4
SECTION 2.3 Temporary Notes.............................. 5
SECTION 2.4 Registration of Transfer and Exchange........ 5
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes... 6
SECTION 2.6 Persons Deemed Owner......................... 7
SECTION 2.7 Payment of Principal and Interest;
Defaulted Interest........................... 8
SECTION 2.8 Cancellation................................. 9
SECTION 2.9 Release of Collateral........................ 9
SECTION 2.10 Book-Entry Notes............................ 9
SECTION 2.11 Notices to Clearing Agency.................. 10
SECTION 2.12 Definitive Notes............................ 10
SECTION 2.13 Authenticating Agents....................... 11
SECTION 2.14 Tax Treatment............................... 12
ARTICLE III COVENANTS......................................... 12
SECTION 3.1 Payment of Principal and Interest............ 12
SECTION 3.2 Maintenance of Office or Agency.............. 12
SECTION 3.3 Money for Payments To Be Held in Trust....... 13
SECTION 3.4 Existence.................................... 14
SECTION 3.5 Protection of Trust Estate................... 15
SECTION 3.6 Opinions as to Trust Estate.................. 15
SECTION 3.7 Performance of Obligations; Servicing
of Receivables............................... 16
SECTION 3.8 Negative Covenants........................... 18
SECTION 3.9 Annual Statement as to Compliance............ 19
SECTION 3.10 Issuer May Consolidate, Etc................. 19
SECTION 3.11 Successor or Transferee..................... 21
SECTION 3.12 No Other Business........................... 21
SECTION 3.13 No Borrowing................................ 22
SECTION 3.14 Servicer's Obligations...................... 22
SECTION 3.15 Guarantees, Loans, Advances and Other
Liabilities................................. 22
SECTION 3.16 Capital Expenditures........................ 22
SECTION 3.17 Restricted Payments......................... 22
SECTION 3.18 Notice of Events of Default................. 22
SECTION 3.19 Further Instruments and Acts................ 23
SECTION 3.20 Removal of Administrator or Administrative
Agent....................................... 23
ARTICLE IV SATISFACTION AND DISCHARGE......................... 23
SECTION 4.1 Satisfaction and Discharge of Indenture...... 23
SECTION 4.2 Application of Trust Money................... 24
SECTION 4.3 Repayment of Moneys Held by Paying Agent..... 25
ARTICLE V REMEDIES............................................ 25
SECTION 5.1 Events of Default............................ 25
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment.................................... 26
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee............. 27
SECTION 5.4 Remedies; Priorities......................... 30
SECTION 5.5 Optional Preservation of the Receivables..... 31
SECTION 5.6 Limitation of Suits.......................... 31
SECTION 5.7 Unconditional Rights of Noteholders To
Receive Principal and Interest............... 32
SECTION 5.8 Restoration of Rights and Remedies........... 32
SECTION 5.9 Rights and Remedies Cumulative............... 33
SECTION 5.10 Delay or Omission Not a Waiver.............. 33
SECTION 5.11 Control by Noteholders...................... 33
SECTION 5.12 Waiver of Past Defaults..................... 34
SECTION 5.13 Undertaking for Costs....................... 34
SECTION 5.14 Waiver of Stay or Extension Laws............ 34
SECTION 5.15 Action on Notes............................. 35
SECTION 5.16 Performance and Enforcement of Certain
Obligations................................. 35
ARTICLE VI INDENTURE TRUSTEE.................................. 36
SECTION 6.1 Duties of Indenture Trustee.................. 36
SECTION 6.2 Rights of Indenture Trustee.................. 37
SECTION 6.3 Individual Rights of Indenture Trustee....... 38
SECTION 6.4 Indenture Trustee's Disclaimer............... 38
SECTION 6.5 Notice of Defaults........................... 38
SECTION 6.6 Reports by Indenture Trustee to Holders...... 38
SECTION 6.7 Compensation................................. 38
SECTION 6.8 Replacement of Indenture Trustee............. 39
SECTION 6.9 Successor Indenture Trustee by Merger........ 40
SECTION 6.10 Appointment of Co-Indenture Trustee or
Separate Indenture Trustee................... 41
SECTION 6.11 Eligibility; Disqualification................ 42
SECTION 6.12 Preferential Collection of Claims Against
Issuer....................................... 42
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS.................... 42
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders...................... 42
SECTION 7.2 Preservation of Information; Communications to
Noteholders................................... 43
SECTION 7.3 Reports by Issuer............................ 43
SECTION 7.4 Reports by Indenture Trustee................. 44
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES............. 44
SECTION 8.1 Collection of Money.......................... 44
SECTION 8.2 Trust Accounts............................... 44
SECTION 8.3 General Provisions Regarding Accounts........ 46
SECTION 8.4 Release of Trust Estate...................... 47
SECTION 8.5 Opinion of Counsel........................... 47
ARTICLE IX SUPPLEMENTAL INDENTURES............................ 48
SECTION 9.1 Supplemental Indentures Without Consent of
Noteholders.................................. 48
SECTION 9.2 Supplemental Indentures with Consent of
Noteholders.................................. 49
SECTION 9.3 Execution of Supplemental Indentures......... 51
SECTION 9.4 Effect of Supplemental Indenture............. 51
SECTION 9.5 Conformity With Trust Indenture Act.......... 52
SECTION 9.6 Reference in Notes to Supplemental
Indentures................................... 52
ARTICLE X REDEMPTION OF NOTES................................. 52
SECTION 10.1 Redemption.................................. 52
SECTION 10.2 Form of Redemption Notice................... 52
SECTION 10.3 Notes Payable on Redemption Date............ 53
ARTICLE XI MISCELLANEOUS...................................... 53
SECTION 11.1 Compliance Certificates and Opinions, etc... 53
SECTION 11.2 Form of Documents Delivered to Indenture
Trustee..................................... 55
SECTION 11.3 Acts of Noteholders......................... 56
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer
and Rating Agencies......................... 57
SECTION 11.5 Notices to Noteholders; Waiver.............. 58
SECTION 11.6 Alternate Payment and Notice Provisions..... 59
SECTION 11.7 Conflict with Trust Indenture Act........... 59
SECTION 11.8 Effect of Headings and Table of Contents.... 59
SECTION 11.9 Successors and Assigns...................... 59
SECTION 11.10 Separability................................ 59
SECTION 11.11 Benefits of Indenture....................... 59
SECTION 11.12 Legal Holidays.............................. 60
SECTION 11.13 GOVERNING LAW............................... 60
SECTION 11.14 Counterparts................................ 60
SECTION 11.15 Recording of Indenture...................... 60
SECTION 11.16 Trust Obligation............................ 60
SECTION 11.17 No Petition................................. 61
SECTION 11.18 Inspection.................................. 61
Exhibit A Form of Class A-1 Note
Exhibit B Form of Class A-2 Note
Exhibit C Form of Class A-3 Note
Exhibit D Form of Class A-4 Note
<PAGE>
INDENTURE dated as of November 13, 1996, between NORWEST AUTO TRUST
1996-A, a Delaware business trust ("Issuer"), and THE CHASE MANHATTAN BANK,
a New York banking corporation, solely as trustee and not in its individual
capacity ("Indenture Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of Issuer's Class A-1
5.465% Asset Backed Notes (the "Class A-1 Notes"), Class A-2 5.800% Asset
Backed Notes (the "Class A-2 Notes"), Class A-3 5.900% Asset Backed Notes
(the "Class A-3 Notes") and Class A-4 6.100% Asset Backed Notes (the "Class
A-4 Notes" and, together with the Class A-1 Notes, the Class A-2 Notes and
the Class A-3 Notes, the "Notes"):
GRANTING CLAUSE
Issuer hereby Grants to Indenture Trustee at the Closing Date, as
Indenture Trustee for the benefit of the Holders of the Notes, all of
Issuer's right, title and interest in and to (a) the Receivables, and all
moneys received thereon after the Cutoff Date; (b) the security interests
in the Financed Vehicles granted by Obligors pursuant to the Receivables
and any other interest of Issuer in the Financed Vehicles and any other
property that shall secure the Receivables; (c) any proceeds with respect
to (i) any Receivable repurchased by a Dealer, pursuant to a Dealer
Agreement, as a result of a breach of representation or warranty in the
related Dealer Agreement, (ii) a default by an Obligor resulting in the
repossession of the Financed Vehicle; or (iii) any Dealer Recourse and
other rights of Seller Affiliates under Dealer Agreements (other than
rights to rebates of unamortized premiums paid or payable to Dealers)
relating to the Receivables; (d) any proceeds with respect to the
Receivables from claims on any Insurance Policies covering Financed
Vehicles or Obligors or from claims under any lender's single interest
insurance policy naming any Seller Affiliate as an insured; (e) rebates of
premiums and other amounts relating to Insurance Policies (including any
forced placed Physical Damage Insurance Policy) and other items financed
under the Receivables, in each case, to the extent Servicer would, in
accordance with its customary practices, apply such amounts to the
Principal Balance of the related Receivable; (f) any instrument or document
relating to the Receivables; (g) all the Seller's rights under the Purchase
Agreements, including the right of the Seller to cause a Seller Affiliate
to repurchase Receivables from the Seller; (h) the security interests in
the Receivables and other assets granted by each Seller Affiliate to the
Issuer under the Affiliate Security Agreement and all rights of the Issuer
thereunder; (i) all funds on deposit from time to time in the Trust
Accounts and in all investments and proceeds thereof (but excluding all
investment income thereon); (j) the Issuer's rights under the Sale and
Servicing Agreement; and (k) all present and future claims, demands, causes
and choses in action in respect of any or all of the foregoing and all
payments on or under and all proceeds of every kind and nature whatsoever
in respect of any or all of the foregoing, including all proceeds of the
conversion, voluntary or involuntary, into cash or other liquid property,
all cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance proceeds,
condemnation awards, rights to payment of any and every kind and other
forms of obligations and receivables, instruments and other property which
at any time constitute all or part of or are included in the proceeds of
any of the foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of,
the Notes, equally and ratably without prejudice, priority or distinction
except as set forth herein, and to secure compliance with the provisions of
this Indenture, all as provided in this Indenture.
Indenture Trustee, as Indenture Trustee on behalf of the Holders of
the Notes, acknowledges such Grant, accepts the trusts under this Indenture
in accordance with the provisions of this Indenture and agrees to perform
its duties required in this Indenture to the best of its ability to the end
that the interests of the Holders of the Notes may be adequately and
effectively protected.
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE.
SECTION 1.1 Definitions. Capitalized terms are used in this Indenture
as defined in Appendix X to the Sale and Servicing Agreement dated as of
November 13, 1996, among Norwest Auto Receivables Corporation, as Seller,
the Issuer, The Chase Manhattan Bank, as Indenture Trustee and Norwest Bank
Minnesota, N.A., as Servicer.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means Indenture
Trustee.
"obligor" on the indenture securities means Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
SECTION 1.3 Other Interpretive Provisions. All terms defined in this
Indenture shall have the defined meanings when used in any certificate or
other document delivered pursuant hereto unless otherwise defined therein.
For purposes of this Indenture and all such certificates and other
documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Indenture, and accounting terms partly defined in
this Indenture to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles; (b)
the words "hereof," "herein" and "hereunder" and words of similar import
refer to this Indenture as a whole and not to any particular provision of
this Indenture; (c) references to any Article, Section, Schedule or Exhibit
are references to Articles, Sections, Schedules and Exhibits in or to this
Indenture and references to any paragraph, subsection, clause or other
subdivision within any Section or definition refer to such paragraph,
subsection, clause or other subdivision of such Section or definition; (d)
the term "including" means "including without limitation"; (e) except as
otherwise expressly provided herein, references to any law or regulation
refer to that law or regulation as amended from time to time and include
any successor law or regulation; (f) references to any Person include that
Person's successors and assigns; and (g) headings are for purposes of
reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
ARTICLE II THE NOTES.
SECTION 2.1 Form. The Class A-1 Notes, Class A-2 Notes, Class A-3
Notes and the Class A-4 Notes, in each case together with Indenture
Trustee's certificate of authentication, shall be in substantially the
forms set forth in Exhibits D, E, F and G, respectively, with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may, consistently herewith, be determined by the officers
executing such Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without
steel engraved borders), all as determined by the officers executing such
Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in Exhibits D, E, F and G are part of the terms of this
Indenture.
SECTION 2.2 Execution, Authentication and Delivery. The Notes shall
be executed on behalf of Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of Issuer shall bind Issuer,
notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
Indenture Trustee shall upon Issuer Order authenticate and deliver
Class A-1 Notes for original issue in an aggregate principal amount of
$350,000,000, Class A-2 Notes for original issue in an aggregate principal
amount of $340,000,000, Class A-3 Notes for original issue in an aggregate
principal amount of $220,000,000 and Class A-4 Notes for original issue in
the aggregate principal amount of $120,140,000. The aggregate principal
amount of Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and Class A-4
Notes outstanding at any time may not exceed such amounts except as
provided in Section 2.5.
Each Note shall be dated the date of its authentication. The Notes
shall be issuable as registered Notes in the minimum denomination of $1,000
and in integral multiples thereof (except for one Note of each class which
may be issued in a denomination other than an integral multiple of $1,000).
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
SECTION 2.3 Temporary Notes. Pending the preparation of Definitive
Notes, Issuer may execute, and upon receipt of an Issuer Order Indenture
Trustee shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor
of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture as the
officers executing such Notes may determine, as evidenced by their
execution of such Notes.
If temporary Notes are issued, Issuer will cause Definitive Notes to
be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of Issuer to be
maintained as provided in Section 3.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, Issuer shall
execute and Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as
Definitive Notes.
SECTION 2.4 Registration of Transfer and Exchange. Issuer shall cause
to be kept a register (the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, Issuer shall provide for the
registration of Notes and the registration of transfers of Notes. Indenture
Trustee shall initially be "Note Registrar" for the purpose of registering
Notes and transfers of Notes as herein provided. Upon any resignation of
any Note Registrar, Issuer shall promptly appoint a successor or, if it
elects not to make such an appointment, assume the duties of Note
Registrar.
If a Person other than Indenture Trustee is appointed by Issuer as
Note Registrar, Issuer will give Indenture Trustee prompt written notice of
the appointment of such Note Registrar and of the location, and any change
in the location, of the Note Register, and Indenture Trustee shall have the
right to inspect the Note Register at all reasonable times and to obtain
copies thereof, and Indenture Trustee shall have the right to conclusively
rely upon a certificate executed on behalf of Note Registrar by an
Executive Officer thereof as to the names and addresses of the Holders of
the Notes and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of Issuer to be maintained as provided in Section 3.2, if the
requirements of Section 8-401(1) of the UCC are met Issuer shall execute
and upon its written request Indenture Trustee shall authenticate and the
Noteholder shall obtain from Indenture Trustee, in the name of the
designated transferee or transferees, one or more new Notes, in any
authorized denominations, of the same class and a like aggregate principal
amount.
At the option of the Holder, Notes may be exchanged for other Notes in
any authorized denominations, of the same class and a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any Notes are so surrendered for exchange, if
the requirements of Section 8-401(1) of the UCC are met Issuer shall
execute and upon its written request Indenture Trustee shall authenticate
and the Noteholder shall obtain from Indenture Trustee, the Notes which the
Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to Note Registrar duly executed
by, the Holder thereof or such Holder's attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of Note Registrar which requirements
include membership or participation in Securities Transfer Agents Medallion
Program ("Stamp") or such other "signature guarantee program" as may be
determined by Note Registrar in addition to, or in substitution for, Stamp,
all in accordance with the Exchange Act, and (ii) accompanied by such other
documents as Indenture Trustee may require.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Notes, other than exchanges pursuant to Section 2.3 or 9.6 not involving
any transfer.
The preceding provisions of this section notwithstanding, Issuer shall
not be required to make and Note Registrar need not register transfers or
exchanges of Notes selected for redemption or of any Note for a period of
15 days preceding the due date for any payment with respect to the Note.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to Indenture Trustee, or Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any Note, and (ii) there is delivered to Indenture Trustee such security or
indemnity as may be required by it to hold Issuer and Indenture Trustee
harmless, then, in the absence of notice to Issuer, Note Registrar or
Indenture Trustee that such Note has been acquired by a bona fide
purchaser, and provided that the requirements of Section 8-405 of the UCC
are met, Issuer shall execute and upon its written request Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Note, a replacement Note;
provided that if any such destroyed, lost or stolen Note, but not a
mutilated Note, shall have become or within seven days shall be due and
payable, or shall have been called for redemption, instead of issuing a
replacement Note, Issuer may upon delivery of the security or indemnity
herein required pay such destroyed, lost or stolen Note when so due or
payable or upon the Redemption Date without surrender thereof. If, after
the delivery of such replacement Note or payment of a destroyed, lost or
stolen Note pursuant to the proviso to the preceding sentence, a bona fide
purchaser of the original Note in lieu of which such replacement Note was
issued presents for payment such original Note, Issuer and Indenture
Trustee shall be entitled to recover such replacement Note (or such
payment) from the Person to whom it was delivered or any Person taking such
replacement Note from such Person to whom such replacement Note was
delivered or any assignee of such Person, except a bona fide purchaser, and
shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by
Issuer or Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, Issuer
may require the payment by the Holder of such Note of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses
of Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Notes duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, Issuer, Indenture Trustee and any
agent of Issuer or Indenture Trustee may treat the Person in whose name any
Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not
such Note be overdue, and neither Issuer, Indenture Trustee nor any agent
of Issuer or Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest.
(a) The Notes shall accrue interest as provided in the forms of the Class
A-1 Note, Class A-2 Note, Class A-3 Note and the Class A-4 Note, set forth
in Exhibits A, B, C and D, respectively, and such interest shall be payable
on each Distribution Date and the Class A-1 Final Payment Date as specified
therein. Any installment of interest or principal, if any, payable on any
Note which is punctually paid or duly provided for by Issuer on the
applicable Distribution Date or Class A-1 Final Payment Date shall be paid
to the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the Record Date, by check mailed first-class, postage
prepaid, to such Person's address as it appears on the Note Register on
such Record Date, except that, unless Definitive Notes have been issued
pursuant to Section 2.12, with respect to Notes registered on the Record
Date in the name of the nominee of the Clearing Agency (initially, such
nominee to be Cede & Co.), payment will be made by wire transfer in
immediately available funds to the account designated by such nominee and
except for the final installment of principal payable with respect to such
Note on a Distribution Date or Class A-1 Final Payment Date (and except for
the Redemption Price for any Note called for redemption pursuant to Section
10.1(a)) which shall be payable as provided below. The funds represented by
any such checks returned undelivered shall be held in accordance with
Section 3.3.
(b) The principal of each Note shall be payable on each Distribution
Date and the Class A-1 Final Payment Date as provided in the forms of the
Class A-1 Note, Class A-2 Note, Class A-3 Note and the Class A-4 Note, set
forth in Exhibits A, B, C and D, respectively. Notwithstanding the
foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which an Event of Default
shall have occurred and be continuing, if Indenture Trustee or the Holders
of the Notes representing not less than a majority of the Outstanding
Amount of the Notes have declared the Notes to be immediately due and
payable in the manner provided in Section 5.2 and, in such event, all
principal payments on each class of Notes shall be made pro rata to the
Noteholders of such class entitled thereto. Indenture Trustee shall notify
the Person in whose name a Note is registered at the close of business on
the Record Date preceding the Distribution Date or the Class A-1 Final
Payment Date on which Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be
mailed or transmitted by facsimile prior to such final Distribution Date or
the Class A-1 Final Payment Date and shall specify that such final
installment will be payable only upon presentation and surrender of such
Note and shall specify the place where such Note may be presented and
surrendered for payment of such installment. Notices in connection with
redemptions of Notes shall be mailed to Noteholders as provided in Section
10.2.
SECTION 2.8 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to
any Person other than Indenture Trustee, be delivered to Indenture Trustee
and shall be promptly cancelled by Indenture Trustee. Issuer may at any
time deliver to Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled
by Indenture Trustee. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Notes may be held or
disposed of by Indenture Trustee in accordance with its standard retention
or disposal policy as in effect at the time unless Issuer shall direct by
an Issuer Order that they be destroyed or returned to it; provided that
such Issuer Order is timely and the Notes have not been previously disposed
of by Indenture Trustee.
SECTION 2.9 Release of Collateral. Subject to Section 11.1, Indenture
Trustee shall release property from the lien of this Indenture only upon
receipt of an Issuer Request accompanied by an Officer's Certificate, an
Opinion of Counsel and Independent Certificates in accordance with TIA
314(c) and 314(d)(1) or an Opinion of Counsel in lieu of such Independent
Certificates to the effect that the TIA does not require any such
Independent Certificates. If the Commission shall issue an exemptive order
under TIA Section 304(d) modifying Issuer's obligations under TIA Sections
314(c) and 314(d)(1), subject to Section 11.1 and the terms of the Basic
Documents, Indenture Trustee shall release property from the lien of this
Indenture in accordance with the conditions and procedures set forth in
such exemptive order.
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance,
will be issued in the form of typewritten Notes representing the Book-Entry
Notes, to be delivered to Indenture Trustee, as agent for The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, Issuer.
Such Notes shall initially be registered on the Note Register in the name
of Cede & Co., the nominee of the initial Clearing Agency, and no Note
Owner will receive a Definitive Note representing such Note Owner's
interest in such Note, except as provided in Section 2.12. Unless and until
definitive, fully registered Notes (the "Definitive Notes") have been
issued to Note Owners pursuant to Section 2.12:
(a) the provisions of this Section shall be in full force and
effect;
(b) Note Registrar and Indenture Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on the Notes and
the giving of instructions or directions hereunder) as the sole Holder
of the Notes, and shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section conflict
with any other provisions of this Indenture, the provisions of this
Section shall control;
(d) the rights of Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law
and agreements between such Note Owners and the Clearing Agency and/or
the Clearing Agency Participants. Pursuant to the Note Depository
Agreement, unless and until Definitive Notes are issued pursuant to
Section 2.12, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to such
Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Holders of Notes
evidencing a specified percentage of the Outstanding Amount of the
Notes, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to
such effect from Note Owners and/or Clearing Agency Participants
owning or representing, respectively, such required percentage of the
beneficial interest in the Notes and has delivered such instructions
to Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless
and until Definitive Notes shall have been issued to Note Owners pursuant
to Section 2.12, Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to the Note Owners.
SECTION 2.12 Definitive Notes. If (a) Seller advises Indenture
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Notes, and
Seller is unable to locate a qualified successor, (b) Seller at its option
advises Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence
of an Event of Default, Note Owners representing beneficial interests
aggregating at least a majority of the Outstanding Amount of the Notes
advise Indenture Trustee through the Clearing Agency in writing that the
continuation of a book entry system through the Clearing Agency is no
longer in the best interests of the Note Owners, then the Clearing Agency
shall notify all Note Owners and Indenture Trustee of the occurrence of any
such event and of the availability of Definitive Notes to Note Owners
requesting the same. Upon surrender to Indenture Trustee of the typewritten
Note or Notes representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, Issuer shall execute and
Indenture Trustee shall authenticate the Definitive Notes in accordance
with the instructions of the Clearing Agency. None of Issuer, Note
Registrar or Indenture Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Notes,
Indenture Trustee shall recognize the Holders of the Definitive Notes as
Noteholders.
SECTION 2.13 Authenticating Agents. (a) The Indenture Trustee may
appoint one or more Persons (each, an "Authenticating Agent") with power to
act on its behalf and subject to its direction in the authentication of
Notes in connection with issuance, transfers and exchanges under Sections
2.2, 2.3, 2.4 and 2.5, as fully to all intents and purposes as though each
such Authenticating Agent had been expressly authorized by those Sections
to authenticate such Notes. For all purposes of this Indenture, the
authentication of Notes by an Authenticating Agent pursuant to this Section
shall be deemed to be the authentication of Notes "by the Indenture
Trustee."
(b) Any corporation into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to all
or substantially all of the corporate trust business of any Authenticating
Agent, shall be the successor of such Authenticating Agent hereunder,
without the execution or filing of any further act on the part of the
parties hereto or such Authenticating Agent or such successor corporation.
(c) Any Authenticating Agent may at any time resign by giving written
notice of resignation to Indenture Trustee and Owner Trustee. Indenture
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and Owner
Trustee. Upon receiving such notice of resignation or upon such a
termination, Indenture Trustee may appoint a successor Authenticating Agent
and shall give written notice of any such appointment to Owner Trustee.
(d) The Issuer agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services. The provisions of
Sections 2.8 and 6.4 shall be applicable to any Authenticating Agent.
SECTION 2.14 Tax Treatment. Issuer has entered into this Indenture,
and the Notes shall be issued, with the intention that, for federal, state
and local income and franchise tax purposes, the Notes shall qualify as
indebtedness of Issuer secured by the Trust Estate. Issuer, by entering
into this Indenture, and each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of an interest in the applicable
Book-Entry Note), agree to treat the Notes for federal, state and local
income and franchise tax purposes as indebtedness of Issuer.
ARTICLE III COVENANTS.
SECTION 3.1 Payment of Principal and Interest. Issuer will duly and
punctually pay the principal of and interest on the Notes in accordance
with the terms of the Notes and this Indenture. Without limiting the
foregoing, subject to Section 8.2(c), Issuer will cause to be distributed
all amounts on deposit in the Note Distribution Account on a Distribution
Date or the Class A-1 Final Payment Date deposited therein pursuant to the
Sale and Servicing Agreement (i) in the Class A-1 Noteholders' Interest
Distributable Amount, to Class A-1 Noteholders, (ii) in the Class A-2
Noteholders' Interest Distributable Amount, to Class A-2 Noteholders, (iii)
in the Class A-3 Noteholders' Interest Distributable Amount, to Class A-3
Noteholders and (iv) in the Class A-4 Noteholders' Interest Distributable
Amount, to Class A-4 Noteholders. Amounts properly withheld under the Code
by any Person from a payment to any Noteholder of interest and/or principal
shall be considered as having been paid by Issuer to such Noteholder for
all purposes of this Indenture.
SECTION 3.2 Maintenance of Office or Agency. Issuer will maintain in
the Borough of Manhattan, The City of New York, an office or agency where
Notes may be surrendered for registration of transfer or exchange, and
where notices and demands to or upon Issuer in respect of the Notes and
this Indenture may be served. Issuer hereby initially appoints Indenture
Trustee to serve as its agent for the foregoing purposes. Issuer will give
prompt written notice to Indenture Trustee of the location, and of any
change in the location, of any such office or agency. If at any time Issuer
shall fail to maintain any such office or agency or shall fail to furnish
Indenture Trustee with the address thereof, such surrenders, notices and
demands may be made or served at the Corporate Trust Office, and Issuer
hereby appoints Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust. As provided in
Section 8.2, all payments of amounts due and payable with respect to any
Notes that are to be made from amounts withdrawn from the Collection
Account and the Note Distribution Account pursuant to Section 8.2(c) shall
be made on behalf of Issuer by Indenture Trustee or by another Paying
Agent, and no amounts so withdrawn from the Collection Account and the Note
Distribution Account for payments of Notes shall be paid over to Issuer
except as provided in this Section.
On or before each Transfer Date and Redemption Date, Issuer shall
deposit or cause to be deposited in the Note Distribution Account an
aggregate sum sufficient to pay the amounts then becoming due under the
Notes, such sum to be held in trust for the benefit of the Persons entitled
thereto and (unless the Paying Agent is Indenture Trustee) shall promptly
notify Indenture Trustee of its action or failure so to act.
Issuer will cause each Paying Agent other than Indenture Trustee to
execute and deliver to Indenture Trustee an instrument in which such Paying
Agent shall agree with Indenture Trustee (and if Indenture Trustee acts as
Paying Agent, it hereby so agrees), subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give Indenture Trustee notice of any default by Issuer of
which it has actual knowledge (or any other obligor upon the Notes) in
the making of any payment required to be made with respect to the
Notes;
(iii) at any time during the continuance of any such default,
upon the written request of Indenture Trustee, forthwith pay to
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to
Indenture Trustee all sums held by it in trust for the payment of
Notes if at any time it ceases to meet the standards required to be
met by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order
direct any Paying Agent to pay to Indenture Trustee all sums held in trust
by such Paying Agent, such sums to be held by Indenture Trustee upon the
same trusts as those upon which the sums were held by such Paying Agent;
and upon such a payment by any Paying Agent to Indenture Trustee, such
Paying Agent shall be released from all further liability with respect to
such money.
Subject to applicable laws with respect to the escheat of funds, any
money held by Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed
for two years after such amount has become due and payable shall be
discharged from such trust and be paid to Issuer; and the Holder of such
Note shall thereafter, as an unsecured general creditor, look only to
Issuer for payment thereof (but only to the extent of the amounts so paid
to Issuer), and all liability of Indenture Trustee or such Paying Agent
with respect to such trust money shall thereupon cease; provided that
Indenture Trustee or such Paying Agent, before being required to make any
such repayment, shall on Issuer Request and at the expense of Issuer cause
to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in
The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then
remaining will be repaid to Issuer. Indenture Trustee shall also adopt and
employ, on Issuer Request and at the expense of Issuer, any other
reasonable means of notification of such repayment (including, but not
limited to, mailing notice of such repayment to Holders whose Notes have
been called but have not been surrendered for redemption or whose right to
or interest in moneys due and payable but not claimed is determinable from
the records of Indenture Trustee or of any Paying Agent, at the last
address of record for each such Holder).
SECTION 3.4 Existence. Except as otherwise permitted by the
provisions of Section 3.10, Issuer will keep in full effect its existence,
rights and franchises as a business trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other state or of the United
States of America, in which case Issuer will keep in full effect its
existence, rights and franchises under the laws of such other jurisdiction)
and will obtain and preserve its qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Notes, the
Collateral and each other instrument or agreement included in the Trust
Estate.
SECTION 3.5 Protection of Trust Estate. Issuer will from time to time
prepare (or shall cause to be prepared), execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other
instruments, and will take such other action necessary or advisable to:
(a) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively
the purposes hereof;
(b) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(c) enforce any of the Collateral; or
(d) preserve and defend title to the Trust Estate and the
rights of Indenture Trustee and the Noteholders in such Trust Estate
against the claims of all persons and parties.
Issuer hereby designates Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement
or other instrument required by Issuer pursuant to this Section as shall be
identified to Indenture Trustee in the Opinion of Counsel delivered in
accordance with Section 3.6(b).
SECTION 3.6 Opinions as to Trust Estate. (a) On the Closing Date,
Issuer shall furnish to Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken
with respect to the recording and filing of this Indenture, any indentures
supplemental hereto, and any other requisite documents, and with respect to
the execution and filing of any financing statements and continuation
statements, as are necessary to perfect and make effective the lien and
security interest of this Indenture and reciting the details of such
action, or stating that, in the opinion of such counsel, no such action is
necessary to make such lien and security interest effective.
(b) Within 120 days after the beginning of each calendar year,
beginning with the first calendar year beginning more than three months
after the Cutoff Date, Issuer shall furnish to Indenture Trustee an Opinion
of Counsel either stating that, in the opinion of such counsel, such action
has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any
other requisite documents and with respect to the execution and filing of
any financing statements and continuation statements as are necessary to
maintain the lien and security interest created by this Indenture and
reciting the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain such lien and security
interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and the execution and
filing of any financing statements and continuation statements that will,
in the opinion of such counsel, be required to maintain the lien and
security interest of this Indenture until January 30 in the following
calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Receivables. (a)
Issuer will not take any action and will use its best efforts not to permit
any action to be taken by others that would release any Person from any of
such Person's material covenants or obligations under any instrument or
agreement included in the Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or
impair the validity or effectiveness of, any such instrument or agreement,
except as ordered by any bankruptcy or other court or as expressly provided
in this Indenture, the Basic Documents or such other instrument or
agreement.
(b) Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a
Person identified to Indenture Trustee in an Officer's Certificate of
Issuer shall be deemed to be action taken by Issuer. Initially, Issuer has
contracted with Servicer and the Administrator and the Administrative Agent
to assist Issuer in performing its duties under this Indenture.
(c) Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture, the Basic Documents and in the
instruments and agreements included in the Trust Estate, including but not
limited to preparing (or causing to prepared) and filing (or causing to be
filed) all UCC financing statements and continuation statements required to
be filed by the terms of this Indenture and the Sale and Servicing
Agreement in accordance with and within the time periods provided for
herein and therein. Except as otherwise expressly provided therein, Issuer
shall not waive, amend, modify, supplement or terminate any Basic Document
or any provision thereof without the consent of Indenture Trustee or the
Holders of at least a majority of the Outstanding Amount of the Notes.
(d) If Issuer shall have knowledge of the occurrence of a Servicer
Termination Event under the Sale and Servicing Agreement, Issuer shall
promptly notify Indenture Trustee and the Rating Agencies thereof in
accordance with Section 11.4, and shall specify in such notice the action,
if any, Issuer is taking in respect of such default. If a Servicer
Termination Event shall arise from the failure of Servicer to perform any
of its duties or obligations under the Sale and Servicing Agreement with
respect to the Receivables, Issuer shall take all reasonable steps
available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination
to Servicer of Servicer's rights and powers pursuant to Section 8.1 of the
Sale and Servicing Agreement, Issuer shall appoint a successor servicer
(the "Successor Servicer"), and such Successor Servicer shall accept its
appointment by a written assumption. In the event that a Successor Servicer
has not been appointed and accepted its appointment at the time when
Servicer ceases to act as Servicer, Indenture Trustee without further
action shall automatically be appointed the Successor Servicer.
Notwithstanding Section 8.2(c) of the Sale and Servicing Agreement,
Indenture Trustee may resign as Servicer by giving written notice of such
resignation to Issuer and in such event will be released from such duties
and obligations, such release not to be effective until the date a new
servicer enters into a servicing agreement with Issuer as provided below.
Upon delivery of any such notice to Issuer, Issuer shall obtain a new
servicer as the Successor Servicer under the Sale and Servicing Agreement.
Any Successor Servicer other than Indenture Trustee shall (i) be an
established financial institution having a net worth of not less than
$50,000,000 and whose regular business includes the servicing of motor
vehicle loans and (ii) enter into a servicing agreement with Issuer having
substantially the same provisions as the provisions of the Sale and
Servicing Agreement applicable to Servicer. If within 30 days after the
delivery of the notice referred to above, Issuer shall not have obtained
such a new servicer, Indenture Trustee may appoint, or may petition a court
of competent jurisdiction to appoint, a Successor Servicer. In connection
with any such appointment, Indenture Trustee may make such arrangements for
the compensation of such successor as it and such successor shall agree,
subject to the limitations set forth below and in the Sale and Servicing
Agreement, and in accordance with Section 8.2 of the Sale and Servicing
Agreement, Issuer shall enter into an agreement with such successor for the
servicing of the Receivables. If Indenture Trustee shall succeed to
Servicer's duties as servicer of the Receivables as provided herein, it
shall do so in its individual capacity and not in its capacity as Indenture
Trustee and, accordingly, the provisions of Article VI shall be
inapplicable to Indenture Trustee in its duties as the successor to
Servicer and the servicing of the Receivables and the Indenture Trustee
shall be entitled to receive the Servicing Fee pursuant to Section 4.8 of
the Sale and Servicing Agreement. In case Indenture Trustee shall become
successor to Servicer under the Sale and Servicing Agreement, Indenture
Trustee shall be entitled to appoint as Servicer any one of its Affiliates,
or delegate any of its responsibilities as Servicer to agents, subject to
the terms of the Sale and Servicing Agreement, provided that such
appointment or delegation shall not affect or alter in any way the
liability of Indenture Trustee as a successor for the performance of the
duties and obligations of Servicer in accordance with the terms hereof.
(f) Upon any termination of Servicer's rights and powers pursuant to
the Sale and Servicing Agreement, Issuer shall promptly notify Indenture
Trustee. As soon as a Successor Servicer (other than Indenture Trustee) is
appointed, Issuer shall notify Indenture Trustee of such appointment,
specifying in such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment
granted to Indenture Trustee under this Indenture or the rights of
Indenture Trustee hereunder, Issuer agrees that, unless such action is
specifically permitted hereunder or under the Basic Documents, it will not,
without the prior written consent of Indenture Trustee or the Holders of at
least a majority in Outstanding Amount of the Notes, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of
any Collateral or the Basic Documents, or waive timely performance or
observance by Servicer or Seller under the Sale and Servicing Agreement;
provided that no such amendment shall (i) except for amendments and
modifications of the Receivables permitted under the Sale and Servicing
Agreement, increase or reduce in any manner the amount of, or accelerate or
delay the timing of, distributions that are required to be made for the
benefit of the Noteholders, or (ii) reduce the aforesaid percentage of the
Notes which are required to consent to any such amendment, without the
consent of the Holders of all the Outstanding Notes. If any such amendment,
modification, supplement or waiver shall be so consented to by Indenture
Trustee or such Holders, Issuer agrees, promptly following a request by
Indenture Trustee to do so, to execute and deliver, in its own name and at
its own expense, such agreements, instruments, consents and other documents
as Indenture Trustee may deem necessary or appropriate in the
circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding,
Issuer shall not:
(a) except as expressly permitted by this Indenture or the
Basic Documents, sell, transfer, exchange or otherwise dispose of any
of the properties or assets of Issuer, including those included in the
Trust Estate, unless directed to do so by Indenture Trustee;
(b) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code) or assert
any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Trust
Estate; or
(c) dissolve or liquidate in whole or in part; or
(d) (i) permit the validity or effectiveness of this Indenture
to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any
Person to be released from any covenants or obligations with respect
to the Notes under this Indenture except as may be expressly permitted
hereby, (ii) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien of this
Indenture) to be created on or extend to or otherwise arise upon or
burden the Trust Estate or any part thereof or any interest therein or
the proceeds thereof (other than tax liens, mechanics' liens and other
liens that arise by operation of law, in each case on a Financed
Vehicle and arising solely as a result of an action or omission of the
related Obligor) or (iii) permit the lien of this Indenture not to
constitute a valid first priority (other than with respect to any such
tax, mechanics' or other lien) security interest in the Trust Estate.
SECTION 3.9 Annual Statement as to Compliance. Issuer will deliver to
Indenture Trustee, within 120 days after the end of each fiscal year of
Issuer (commencing with April 29, 1998), and otherwise in compliance with
the requirements of TIA Section 314(a)(4) an Officer's Certificate stating,
as to the Authorized Officer signing such Officer's Certificate, that
(a) a review of the activities of Issuer during such year and
of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based
on such review, Issuer has complied with all conditions and covenants
under this Indenture throughout such year, or, if there has been a
default in the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officer and the
nature and status thereof.
SECTION 3.10 Issuer May Consolidate, Etc. Only on Certain Terms. (a)
Issuer shall not consolidate or merge with or into any other Person, unless
(i) the Person (if other than Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America or any state and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to Indenture Trustee, the due and punctual payment of the
principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the
part of Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) Issuer shall have delivered to Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act).
(b) Except as expressly contemplated by the Basic Documents, Issuer
shall not convey or transfer all or substantially all of its properties or
assets, including those included in the Trust Estate, to any Person, unless
(i) the Person that acquires by conveyance or transfer the
properties and assets of Issuer the conveyance or transfer of which is
hereby restricted shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America
or any state, (B) expressly assume, by an indenture supplemental
hereto, executed and delivered to Indenture Trustee, the due and
punctual payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of Issuer to be performed or observed, all as
provided herein, (C) expressly agree by means of such supplemental
indenture that all right, title and interest so conveyed or
transferred shall be subject and subordinate to the rights of Holders
of the Notes, (D) unless otherwise provided in such supplemental
indenture, expressly agree to indemnify, defend and hold harmless
Issuer against and from any loss, liability or expense arising under
or related to this Indenture and the Notes and (E) expressly agree by
means of such supplemental indenture that such Person (or if a group
of persons, then one specified Person) shall prepare (or cause to be
prepared) and make all filings with the Commission (and any other
appropriate Person) required by the Exchange Act in connection with
the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) Issuer shall have delivered to Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act).
SECTION 3.11 Successor or Transferee. (a) Upon any consolidation or
merger of Issuer in accordance with Section 3.10(a), the Person formed by
or surviving such consolidation or merger (if other than Issuer) shall
succeed to, and be substituted for, and may exercise every right and power
of, Issuer under this Indenture with the same effect as if such Person had
been named as Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
Issuer pursuant to Section 3.10(b), Norwest Auto Trust 1996-A will be
released from every covenant and agreement of this Indenture to be observed
or performed on the part of Issuer with respect to the Notes immediately
upon the delivery of written notice to Indenture Trustee stating that
Norwest Auto Trust 1996-A is to be so released.
SECTION 3.12 No Other Business. Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Receivables in the manner contemplated by this Indenture and the Basic
Documents and activities incidental thereto.
SECTION 3.13 No Borrowing. Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14 Servicer's Obligations. Issuer shall cause Servicer to
comply with the Sale and Servicing Agreement, including Sections 4.9, 4.10
and 4.11 thereof.
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by the Sale and Servicing Agreement or this
Indenture, Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability
of so doing or otherwise), endorse or otherwise become contingently liable,
directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any stock, obligations, assets or securities of, or
any other interest in, or make any capital contribution to, any other
Person.
SECTION 3.16 Capital Expenditures. Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
SECTION 3.17 Restricted Payments. Issuer shall not, directly or
indirectly, (a) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a
combination thereof, to Owner Trustee or any owner of a beneficial interest
in Issuer or otherwise with respect to any ownership or equity interest or
security in or of Issuer or to Servicer or Administrator, (b) redeem,
purchase, retire or otherwise acquire for value any such ownership or
equity interest or security or (c) set aside or otherwise segregate any
amounts for any such purpose; provided that Issuer may make, or cause to be
made distributions to Servicer, Administrator, Owner Trustee, Indenture
Trustee and the Certificateholders as permitted by, and to the extent funds
are available for such purpose under, the Sale and Servicing Agreement or
Trust Agreement. Issuer will not, directly or indirectly, make payments to
or distributions from the Collection Account except in accordance with this
Indenture and the Basic Documents.
SECTION 3.18 Notice of Events of Default. Issuer agrees to give
Indenture Trustee and the Rating Agencies prompt written notice of each
Event of Default hereunder and each Event of Servicing Termination or
default on the part of Seller of its obligations under the Sale and
Servicing Agreement.
SECTION 3.19 Further Instruments and Acts. Upon request of Indenture
Trustee, Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
SECTION 3.20 Removal of Administrator or Administrative Agent. For so
long as any Notes are Outstanding, the Issuer shall not remove the
Administrator or Administrative Agent without cause unless the Rating
Agency Condition shall have been satisfied in connection therewith.
ARTICLE IV SATISFACTION AND DISCHARGE.
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to
(a) rights of registration of transfer and exchange, (b) substitution of
mutilated, destroyed, lost or stolen Notes, (c) rights of Noteholders to
receive payments of principal thereof and interest thereon, (d) Sections
3.3, 3.4, 3.5, 3.8, 3.10, 3.12, 3.13, and 3.18, (e) the rights, obligations
and immunities of Indenture Trustee hereunder (including the rights of
Indenture Trustee under Section 6.7 and the obligations of Indenture
Trustee under Section 4.2) and (f) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with
Indenture Trustee payable to all or any of them, and Indenture Trustee, on
demand of and at the expense of Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to
the Notes, when
(i) either
(A) all Notes theretofore authenticated and delivered
(other than (1) Notes that have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section 2.5
and (2) Notes for which payment money has theretofore been
deposited in trust or segregated and held in trust by Issuer and
thereafter repaid to Issuer or discharged from such trust, as
provided in Section 3.3) have been delivered to Indenture
Trustee for cancellation; or
(B) all Notes not theretofore delivered to Indenture
Trustee for cancellation
(1) have become due and payable,
(2) will become due and payable at the Final
Scheduled Distribution Date within one year, or
(3) are to be called for redemption within one year
under arrangements satisfactory to Indenture Trustee for
the giving of notice of redemption by Indenture Trustee in
the name, and at the expense, of Issuer,
and Issuer, in the case of clauses (1), (2) or (3), has
irrevocably deposited or caused to be irrevocably deposited with
Indenture Trustee cash or direct obligations of or obligations
guaranteed by the United States of America (which will mature
prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to
Indenture Trustee for cancellation when due to the Final
Scheduled Distribution Date or Redemption Date (if Notes shall
have been called for redemption pursuant to Section 10.1(a)), as
the case may be;
(ii) Issuer has paid or caused to be paid all other sums
payable hereunder by Issuer;
(iii) Issuer has delivered to Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or
Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of
Section 11.1(a) and each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this
Indenture have been complied with; and
(iv) Issuer has delivered to the Indenture Trustee an Opinion
of Counsel to the effect that the satisfaction and discharge of the
Notes pursuant to this Section will not cause any Noteholder to be
treated as having sold or exchanged any of its Notes for purposes of
Section 1001 of the Code.
SECTION 4.2 Application of Trust Money. All moneys deposited with
Indenture Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as
Indenture Trustee may determine, to the Holders of the particular Notes for
the payment or redemption of which such moneys have been deposited with
Indenture Trustee, of all sums due and to become due thereon for principal
and interest; but such moneys need not be segregated from other funds
except to the extent required herein or in the Sale and Servicing Agreement
or required by law.
SECTION 4.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Notes, all moneys then held by any Paying Agent other than Indenture
Trustee under the provisions of this Indenture with respect to such Notes
shall, upon demand of Issuer, be paid to Indenture Trustee to be held and
applied according to Section 3.3 and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
ARTICLE V REMEDIES.
SECTION 5.1 Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any interest on any Note when the
same becomes due and payable, and such default shall continue for a
period of five days;
(b) default in the payment of the principal of or any
installment of the principal of any Note when the same becomes due and
payable;
(c) default in the observance or performance of any material
covenant or agreement of 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 Issuer made in this Indenture or in any
certificate or other writing delivered pursuant hereto or in
connection herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was
incorrect shall not have been eliminated or otherwise cured, for a
period of 30 days (or for such longer period, not in excess of 90
days, as may be reasonably necessary to remedy such default; provided
that such default is capable of remedy within 90 days or less and
Servicer on behalf of Owner Trustee delivers an Officer's Certificate
to Indenture Trustee to the effect that Issuer has commenced, or will
promptly commence and diligently pursue, all reasonable efforts to
remedy such default) after there shall have been given, by registered
or certified mail, to Issuer by Indenture Trustee or to Issuer and
Indenture Trustee by the Holders of at least 25% of the Outstanding
Amount of the Notes, a written notice specifying such default or
incorrect representation or warranty and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
(d) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of Issuer or any
substantial part of the Trust Estate in an involuntary case under any
applicable Federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of
Issuer or for any substantial part of the Trust Estate, or ordering
the winding-up or liquidation of Issuer's affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(e) the commencement by Issuer of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by Issuer to the entry
of an order for relief in an involuntary case under any such law, or
the consent by Issuer to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of Issuer or for any substantial part of the Trust
Estate, or the making by Issuer of any general assignment for the
benefit of creditors, or the failure by Issuer generally to pay its
debts as such debts become due, or the taking of action by Issuer in
furtherance of any of the foregoing.
Issuer shall deliver to Indenture Trustee, within five days after the
occurrence thereof, written notice in the form of an Officer's Certificate
of any event which with the giving of notice and the lapse of time would
become an Event of Default under clause (c), its status and what action
Issuer is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If an
Event of Default should occur and be continuing, then and in every such
case Indenture Trustee or the Holders of Notes representing not less than a
majority of the Outstanding Amount of the Notes may declare all the Notes
to be immediately due and payable, by a notice in writing to Issuer (and to
Indenture Trustee if given by Noteholders), and upon any such declaration
the unpaid principal amount of such Notes, together with accrued and unpaid
interest thereon through the date of acceleration, shall become immediately
due and payable.
At any time after such declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the money due has
been obtained by Indenture Trustee as hereinafter in this, Article V
provided, the Holders of Notes representing a majority of the Outstanding
Amount of the Notes, by written notice to Issuer and Indenture Trustee, may
rescind and annul such declaration and its consequences if:
(a) Issuer has paid or deposited with Indenture Trustee a sum
sufficient to pay
(i) all payments of principal of and interest on all Notes
and all other amounts that would then be due hereunder or upon
such Notes if the Event of Default giving rise to such
acceleration had not occurred; and
(ii) all sums paid or advanced by Indenture Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of Indenture Trustee and its agents
and counsel; and
(b) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. (a) Issuer covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes due and payable,
and such default continues for a period of five days, or (ii) default is
made in the payment of the principal of or any installment of the principal
of any Note when the same becomes due and payable, Issuer will, upon demand
of Indenture Trustee, pay to it, for the benefit of the Holders of the
Notes, the whole amount then due and payable on such Notes for principal
and interest, with interest upon the overdue principal, and, to the extent
payment at such rate of interest shall be legally enforceable, upon overdue
installments of interest, at the rate specified in Section 2.7 and in
addition thereto such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of Indenture Trustee and its agents
and counsel.
(b) In case Issuer shall fail forthwith to pay such amounts upon such
demand, Indenture Trustee, in its own name and as trustee of an express
trust, may institute a proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against Issuer or other obligor upon such Notes and
collect in the manner provided by law out of the property of Issuer or
other obligor upon such Notes, wherever situated, the moneys adjudged or
decreed to be payable.
(c) If an Event of Default occurs and is continuing, Indenture
Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders, by such appropriate proceedings as Indenture Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other
proper remedy or legal or equitable right vested in Indenture Trustee by
this Indenture or by law.
(d) In case there shall be pending, relative to Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust Estate, proceedings under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency
or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of Issuer or its property
or such other obligor or Person, or in case of any other comparable
judicial proceedings relative to Issuer or other obligor upon the Notes, or
to the creditors or property of Issuer or such other obligor, Indenture
Trustee, irrespective of whether the principal of any Notes shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether Indenture Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable
in order to have the claims of Indenture Trustee (including any claim
for reasonable compensation to Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and
all advances made, by Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence, bad faith or willful
misconduct) and of the Noteholders allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes in any election of a trustee, a
standby trustee or person performing similar functions in any such
proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Noteholders and of
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of
Indenture Trustee or the Holders of Notes allowed in any judicial
proceedings relative to Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official
in any such proceeding is hereby authorized by each of such Noteholders to
make payments to Indenture Trustee, and, in the event that Indenture
Trustee shall consent to the making of payments directly to such
Noteholders, to pay to Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances
made, by Indenture Trustee and each predecessor Indenture Trustee except as
a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf
of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other proceedings relative thereto, and any such action or
proceedings instituted by Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders of the Notes.
(g) In any proceedings brought by Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture
to which Indenture Trustee shall be a party), Indenture Trustee shall be
held to represent all the Holders of the Notes, and it shall not be
necessary to make any Noteholder a party to any such proceedings.
SECTION 5.4 Remedies; Priorities. (a) If an Event of Default shall
have occurred and be continuing, Indenture Trustee may do one or more of
the following (subject to Section 5.5):
(i) institute proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from Issuer and any other obligor upon such Notes moneys adjudged due;
(ii) institute proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Trust
Estate;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the
rights and remedies of Indenture Trustee and the Holders of the Notes;
and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law;
provided that Indenture Trustee may not sell or otherwise liquidate the
Trust Estate following an Event of Default, other than an Event of Default
described in Section 5.1(a) or (b), unless (A) the Holders of 100% of the
Outstanding Amount of the Notes and Certificates consent thereto, (B) the
proceeds of such sale or liquidation distributable to the Noteholders and
Certificateholders are sufficient to discharge in full all amounts then due
and unpaid upon such Notes and Certificates for principal and interest or
(C) Indenture Trustee determines that the Trust Estate will not continue to
provide sufficient funds for the payment of principal of and interest on
the Notes as they would have become due if the Notes had not been declared
due and payable, and Indenture Trustee obtains the consent of Holders of
66-2/3% of the Outstanding Amount of the Notes. In determining such
sufficiency or insufficiency with respect to clause (B) and (C), Indenture
Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as
to the feasibility of such proposed action and as to the sufficiency of the
Trust Estate for such purpose.
(b) If Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out such money or property (and other amounts
including amounts held on deposit in the Reserve Account) held as
Collateral for the benefit of the Noteholders in the following order:
FIRST: to Indenture Trustee for amounts due under Section 6.7;
SECOND: to Servicer for due and unpaid Servicing Fees;
THIRD: 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;
FOURTH: 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;
and
FIFTH: to Issuer for distribution to the Certificateholders.
Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section. At least 15 days before
such record date, Issuer shall mail to each Noteholder and Indenture
Trustee a notice that states the record date, the payment date and the
amount to be paid.
SECTION 5.5 Optional Preservation of the Receivables. If the Notes
have been declared to be due and payable under Section 5.2 following an
Event of Default and such declaration and its consequences have not been
rescinded and annulled, Indenture Trustee may, but need not, elect to
maintain possession of the Trust Estate. It is the desire of the parties
hereto and the Noteholders that there be at all times sufficient funds for
the payment of principal of and interest on the Notes, and Indenture
Trustee shall take such desire into account when determining whether or not
to maintain possession of the Trust Estate. In determining whether to
maintain possession of the Trust Estate, Indenture Trustee may, but need
not, obtain and rely upon an opinion of an Independent investment banking
or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Trust Estate for such
purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have any
right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) such Holder has previously given written notice to
Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding Amount
of the Notes have made written request to Indenture Trustee to
institute such proceeding in respect of such Event of Default in its
own name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to Indenture Trustee
indemnity reasonably satisfactory to it against the costs, expenses
and liabilities to be incurred in complying with such request;
(d) Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
proceedings; and
(e) no direction inconsistent with such written request has
been given to Indenture Trustee during such 60-day period by the
Holders of a majority of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of Notes shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided.
In the event Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of
Notes, each representing less than a majority of the Outstanding Amount of
the Notes, Indenture Trustee in its sole discretion may determine what
action, if any, shall be taken, notwithstanding any other provisions of
this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the
Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any,
on such Note on or after the respective due dates thereof expressed in such
Note or in this Indenture (or, in the case of redemption, on or after the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
SECTION 5.8 Restoration of Rights and Remedies. If Indenture Trustee
or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to Indenture
Trustee or to such Noteholder, then and in every such case Issuer,
Indenture Trustee and the Noteholders shall, subject to any determination
in such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had
been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of
Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right
or remedy or constitute a waiver of any such Default or Event of Default or
an acquiescence therein. Every right and remedy given by this Article V or
by law to Indenture Trustee or to the Noteholders may be exercised from
time to time, and as often as may be deemed expedient, by Indenture Trustee
or by the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. 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
Indenture Trustee with respect to the Notes or exercising any trust or
power conferred on Indenture Trustee; provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) subject to the express terms of Section 5.4, any direction
to Indenture Trustee to sell or liquidate the Trust Estate shall be by
the Holders of Notes representing not less than 100% of the
Outstanding Amount of the Notes;
(c) if the conditions set forth in Section 5.5 have been
satisfied and Indenture Trustee elects to retain the Trust Estate
pursuant to such Section, then any direction to Indenture Trustee by
Holders of Notes representing less than 100% of the Outstanding Amount
of the Notes to sell or liquidate the Trust Estate shall be of no
force and effect;
(d) Indenture Trustee may take any other action deemed proper
by Indenture Trustee that is not inconsistent with such direction; and
(e) such direction shall be in writing;
provided, further, that, subject to Section 6.1, Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to
such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of Notes of not less than a majority of the Outstanding Amount of
the Notes may waive any past Default or Event of Default and its
consequences except a Default (a) in payment of principal of or interest on
any of the Notes or (b) in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of the Holder of each
Note. In the case of any such waiver, Issuer, Indenture Trustee and the
Holders of the Notes shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent
or other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against Indenture Trustee for any action taken,
suffered or omitted by it as Indenture Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
(a) any suit instituted by Indenture Trustee, (b) any suit instituted by
any Noteholder, or group of Noteholders, in each case holding in the
aggregate more than 10% of the Outstanding Amount of the Notes or (c) any
suit instituted by any Noteholder for the enforcement of the payment of
principal of or interest on any Note on or after the respective due dates
expressed in such Note and in this Indenture (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any
time hereafter in force, that may affect the covenants or the performance
of this Indenture; and Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any
power herein granted to Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 5.15 Action on Notes. Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of Indenture Trustee or the Noteholders shall be
impaired by the recovery of any judgment by Indenture Trustee against
Issuer or by the levy of any execution under such judgment upon any portion
of the Trust Estate or upon any of the assets of Issuer.
SECTION 5.16 Performance and Enforcement of Certain Obligations. (a)
Promptly following a request from Indenture Trustee to do so and at the
expense of the Administrative Agent, Issuer agrees to take all such lawful
action as Indenture Trustee may request to compel or secure the performance
and observance by Seller and Servicer, as applicable, of each of their
obligations to Issuer under or in connection with the Sale and Servicing
Agreement or by the Seller or any Seller Affiliate, as applicable, of each
of their obligations under or in connection with each Purchase Agreement,
in each case, in accordance with the terms thereof, and to exercise any and
all rights, remedies, powers and privileges lawfully available to Issuer
under or in connection with the Sale and Servicing Agreement and each
Purchase Agreement, as the case may be, to the extent and in the manner
directed by Indenture Trustee, including the transmission of notices of
default on the part of Seller, Servicer or applicable Seller Affiliate
thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by Seller or Servicer of each
of their obligations under the Sale and Servicing Agreement or by the
Seller or any Seller Affiliate, as applicable, of each of their obligations
under or in connection with each Purchase Agreement.
(b) If an Event of Default has occurred and is continuing, Indenture
Trustee may, and, at the direction (which direction shall be in writing or
by telephone (confirmed in writing promptly thereafter)) of the Holders of
66-2/3% of the Outstanding Amount of the Notes shall, exercise all rights,
remedies, powers, privileges and claims of Issuer against Seller or
Servicer under or in connection with the Sale and Servicing Agreement, or
against the Seller or Seller Affiliate under the applicable Purchase
Agreement, including the right or power to take any action to compel or
secure performance or observance by Seller, Servicer or applicable Seller
Affiliate of each of their obligations to Issuer thereunder and to give any
consent, request, notice, direction, approval, extension or waiver under
the Sale and Servicing Agreement or any Purchase Agreement, as applicable,
and any right of Issuer to take such action shall be suspended.
ARTICLE VI INDENTURE TRUSTEE.
SECTION 6.1 Duties of Indenture Trustee. (a) If an Event of Default
has occurred and is continuing, of which a Responsible Officer of Indenture
Trustee has actual knowledge, Indenture Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture
against Indenture Trustee; and
(ii) in the absence of bad faith on its part, Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to Indenture Trustee and conforming to the
requirements of this Indenture; however, Indenture Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
(ii) Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.11.
(d) Indenture Trustee shall not be liable for interest on any money
received by it except as Indenture Trustee may agree in writing with
Issuer.
(e) Money held in trust by Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(f) No provision of this Indenture shall require Indenture Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or indemnity satisfactory to it against such risk
or liability is not assured to it.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to Indenture Trustee
shall be subject to the provisions of this Section and to the provisions of
the TIA.
(h) Indenture Trustee shall take all actions required to be taken by
the Indenture Trustee under the Sale and Servicing Agreement.
SECTION 6.2 Rights of Indenture Trustee. (a) Indenture Trustee may
conclusively rely on any document believed by it to be genuine and to have
been signed or presented by the proper person. Indenture Trustee need not
investigate any fact or matter stated in the document.
(b) Before Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. Indenture
Trustee shall not be liable for any action it takes, suffers or omits to
take in good faith in reliance on the Officer's Certificate or Opinion of
Counsel.
(c) Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for
the supervision of, Norwest Auto Receivables Corporation, Norwest Bank
Minnesota, N.A., or any other such agent, attorney, custodian or nominee
appointed with due care by it hereunder. Indenture Trustee shall have no
duty to monitor the performance of Issuer.
(d) Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers; provided, that Indenture Trustee's conduct does not
constitute wilful misconduct, negligence or bad faith.
(e) Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of
such counsel.
SECTION 6.3 Individual Rights of Indenture Trustee. Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of
Notes and may otherwise deal with Issuer or its Affiliates with the same
rights it would have if it were not Indenture Trustee. Any Paying Agent,
Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4 Indenture Trustee's Disclaimer. Indenture Trustee shall
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, shall not be accountable for
Issuer's use of the proceeds from the Notes, and shall not be responsible
for any statement of Issuer in the Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than Indenture
Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing
and if it is either actually known or written notice of the existence
thereof has been delivered to a Responsible Officer of Indenture Trustee,
Indenture Trustee shall mail to each Noteholder notice of the Default
within 90 days after such knowledge or notice occurs. Except in the case of
a Default in payment of principal of or interest on any Note (including
payments pursuant to the mandatory redemption provisions of such Note),
Indenture Trustee may withhold the notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding the
notice is in the interests of Noteholders.
SECTION 6.6 Reports by Indenture Trustee to Holders. Indenture
Trustee shall deliver to each Noteholder such information as may be
reasonably required to enable such Holder to prepare its Federal and state
income tax returns.
SECTION 6.7 Compensation. The compensation and reimbursement of
expenses of Indenture Trustee shall be governed by the agreement dated
November 13, 1996 between Seller and Indenture Trustee. In addition,
Issuer shall reimburse any expenses incurred by the Indenture Trustee in
pursuing remedies pursuant to Section 5.4. Subject to Section 10.3 of the
Sale and Servicing Agreement, Issuer has caused Seller to agree to
indemnify Indenture Trustee and its officers, directors, employees and
agents against any and all loss, liability or expense (including attorneys'
fees and expenses) incurred by it in connection with the acceptance or the
administration of this trust and the performance of its duties hereunder.
Neither Issuer nor Seller need reimburse any expense or indemnify against
any loss, liability or expense incurred by Indenture Trustee through
Indenture Trustee's own wilful misfeasance, negligence or bad faith or to
the extent arising from the breach by the Indenture Trustee of any of its
representations and warranties set forth herein.
Issuer's payment obligations to Indenture Trustee pursuant to this
Section and the agreement referenced in the preceding paragraph shall
survive the resignation or removal of the Indenture Trustee and the
discharge of this Indenture. When Indenture Trustee incurs expenses after
the occurrence of a Default specified in Section 5.1(d) or (e) with respect
to Issuer, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other
applicable Federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee. Indenture Trustee may
resign at any time by so notifying Issuer. The Holders of a majority in
Outstanding Amount of the Notes may remove Indenture Trustee by so
notifying Indenture Trustee and may appoint a successor Indenture Trustee.
Issuer shall remove Indenture Trustee if:
(a) Indenture Trustee fails to comply with Section 6.11;
(b) Indenture Trustee is adjudged a bankrupt or insolvent;
(c) a receiver or other public officer takes charge of
Indenture Trustee or its property; or
(d) Indenture Trustee otherwise becomes incapable of acting.
If Indenture Trustee resigns or is removed or if a vacancy exists in
the office of Indenture Trustee for any reason (Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), Issuer
shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to Issuer. Thereupon
the resignation or removal of the retiring Indenture Trustee shall become
effective, and the successor Indenture Trustee shall have all the rights,
powers and duties of Indenture Trustee under this Indenture subject to
satisfaction of the Rating Agency Condition. The successor Indenture
Trustee shall mail a notice of its succession to Noteholders. The retiring
Indenture Trustee shall promptly transfer all property held by it as
Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, Issuer or the Holders of a majority in Outstanding
Amount of the Notes may petition any court of competent jurisdiction for
the appointment of a successor Indenture Trustee.
If Indenture Trustee fails to comply with Section 6.11, any Noteholder
may petition any court of competent jurisdiction for the removal of
Indenture Trustee and the appointment of a successor Indenture Trustee.
Any resignation or removal of Indenture Trustee and appointment of a
Successor Indenture Trustee pursuant to any of the provisions of this
Section shall not become effective until acceptance of appointment by the
successor Indenture Trustee pursuant to Section 6.8 and payment of all fees
and expenses owed to the outgoing Indenture Trustee.
Notwithstanding the resignation or removal of Indenture Trustee
pursuant to this Section, Issuer's obligations under Section 6.7 shall
continue for the benefit of the retiring Indenture Trustee.
Indenture Trustee shall not be liable for the acts or omissions of any
successor Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. If Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture
Trustee. Indenture Trustee shall provide the Rating Agencies prior written
notice of any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to Indenture Trustee shall succeed to the trusts created
by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to Indenture Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such
Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to Indenture Trustee may
authenticate such Notes either in the name of any predecessor hereunder or
in the name of the successor to Indenture Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the
Notes or in this Indenture provided that the certificate of Indenture
Trustee shall have.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. (a) Notwithstanding any other provisions of this
Indenture, at any time, for the purpose of meeting any legal requirement of
any jurisdiction in which any part of Issuer may at the time be located,
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part
of the Trust, and to vest in such Person or Persons, in such capacity and
for the benefit of the Noteholders, such title to the Trust, or any part
hereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall
be required to meet the terms of eligibility as a successor trustee under
Section 6.11 and no notice to Noteholders of the appointment of any
co-trustee or separate trustee shall be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon Indenture Trustee shall be conferred or imposed upon and
exercised or performed by Indenture Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without Indenture
Trustee joining in such act), except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed Indenture Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to Issuer or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at
the direction of Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder, including acts
or omissions of predecessor or successor trustees; and
(iii) Indenture Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to Indenture Trustee
shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article VI. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with Indenture Trustee or separately, as may be
provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the
conduct of, affecting the liability of, or affording protection to,
Indenture Trustee. Every such instrument shall be filed with Indenture
Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
Indenture Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall invest in and be exercised by Indenture Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. Indenture Trustee shall
at all times satisfy the requirements of TIA 310(a). Indenture Trustee
shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition and shall
have a long term debt rating of investment grade or better by the Rating
Agencies or shall otherwise be acceptable to the Rating Agencies. Indenture
Trustee shall comply with TIA 310(b), including the optional provision
permitted by the second sentence of TIA 310(b)(9); provided that there
shall be excluded from the operation of TIA 310(b)(1) any indenture or
indentures under which other securities of Issuer are outstanding if the
requirements for such exclusion set forth in TIA 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against Issuer.
Indenture Trustee shall comply with TIA 311(a), excluding any creditor
relationship listed in TIA 311(b). A Indenture Trustee who has resigned
or been removed shall be subject to TIA 311(a) to the extent indicated.
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS.
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses
of Noteholders. Issuer will furnish or cause to be furnished to Indenture
Trustee (a) not more than five days after the earlier of (i) each Record
Date and (ii) three months after the last Record Date, a list, in such form
as Indenture Trustee may reasonably require, of the names and addresses of
the Holders as of such Record Date, (b) at such other times as Indenture
Trustee may request in writing, within 30 days after receipt by Issuer of
any such request, a list of similar form and content as of a date not more
than 10 days prior to the time such list is furnished; provided that so
long as (i) Indenture Trustee is Note Registrar, or (ii) the Notes are
Book-Entry Notes, no such list shall be required to be furnished.
SECTION 7.2 Preservation of Information; Communications to
Noteholders. (a) Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders contained
in the most recent list furnished to Indenture Trustee as provided in
Section 7.1 and the names and addresses of Holders received by Indenture
Trustee in its capacity as Note Registrar. Indenture Trustee may destroy
any list furnished to it as provided in such Section 7.1 upon receipt of a
new list so furnished.
(b) Noteholders may communicate pursuant to TIA 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes. Upon receipt by the Indenture Trustee of any request by three or
more Noteholders or by one or more Noteholders of Notes evidencing not less
than 25% of the Outstanding Amount of Notes to receive a copy of the
current list of Noteholders (whether or not made pursuant to TIA 312(b)),
the Indenture Trustee shall promptly notify the Administrative Agent
thereof by providing to the Administrative Agent a copy of such request and
a copy of the list of Noteholders furnished to the requesting Noteholder(s)
in response thereto.
(c) Issuer, Indenture Trustee and Note Registrar shall have the
protection of TIA 312(c).
SECTION 7.3 Reports by Issuer. (a) Issuer shall:
(i) file with Indenture Trustee, within 15 days after Issuer is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which Issuer may be
required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act;
(ii) file with Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports with
respect to compliance by Issuer with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to Indenture Trustee (and Indenture Trustee shall
transmit by mail to all Noteholders described in TIA 313(c)) such
summaries of any information, documents and reports required to be
filed by Issuer pursuant to clauses (i) and (ii) of this Section
7.3(a) as may be required by rules and regulations prescribed from
time to time by the Commission.
(b) Unless Issuer otherwise determines, the fiscal year of Issuer
shall end on December 31 of each year.
SECTION 7.4 Reports by Indenture Trustee. If required by TIA
313(a), within 60 days after each March 31, beginning with March 31, 1998,
Indenture Trustee shall mail to each Noteholder as required by TIA 313(c)
a brief report dated as of such date that complies with TIA 313(a).
Indenture Trustee also shall comply with TIA 313(b)(1). A copy of each
report at the time of its mailing to Noteholders shall be filed by
Indenture Trustee with the Commission and each stock exchange, if any, on
which the Notes are listed. Issuer shall notify Indenture Trustee if and
when the Notes are listed on any stock exchange.
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES.
SECTION 8.1 Collection of Money. Except as otherwise expressly
provided herein, Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance
of any fiscal agent or other intermediary, all money and other property
payable to or receivable by Indenture Trustee pursuant to this Indenture.
Indenture Trustee shall apply all such money received by it as provided in
this Indenture. Except as otherwise expressly provided in this Indenture,
if any default occurs in the making of any payment or performance under any
agreement or instrument that is part of the Trust Estate, Indenture Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings. Any such action shall be without prejudice to any right to
claim a Default or Event of Default under this Indenture and any right to
proceed thereafter as provided in Article V.
SECTION 8.2 Trust Accounts. (a) On or prior to the Closing Date,
Issuer shall cause Servicer to establish, in the name of Indenture Trustee,
for the benefit of the Noteholders and the Certificateholders, the Trust
Accounts as provided in Section 5.1 of the Sale and Servicing Agreement.
(b) On or before each Transfer Date, the Total Distribution Amount
with respect to the preceding Collection Period will be deposited in the
Collection Account as provided in the Sale and Servicing Agreement. On each
Transfer Date, the Noteholders' Distributable Amount with respect to the
preceding Collection Period will be transferred from the Collection Account
and/or the Reserve Account to the Note Distribution Account as provided in
the Sale and Servicing Agreement.
(c) On each Distribution Date, the Class A-1 Final Payment Date and
Redemption Date, Indenture Trustee shall distribute all amounts on deposit
in the Note Distribution Account to Noteholders in respect of the Notes to
the extent of amounts due and unpaid on the Notes for principal and
interest in the following amounts and in the following order of priority
(except as otherwise provided in Section 5.4(b)):
(i) accrued and unpaid interest on the Notes (i) in the Class
A-1 Noteholders' Interest Distributable Amount, to Class A-1
Noteholders, (ii) in the Class A-2 Noteholders' Interest Distributable
Amount, to Class A-2 Noteholders, (iii) in the Class A-3 Noteholders'
Interest Distributable Amount, to Class A-3 Noteholders and (iv) in
the Class A-4 Noteholders' Interest Distributable Amount, to Class A-4
Noteholders; provided that if there are not sufficient funds in the
Note Distribution Account (after giving effect to the transfers
thereto on any Transfer Date) to pay the entire amount of accrued and
unpaid interest then due on the Notes for the related Distribution
Date or Class A-1 Final Payment Date, the amount of the Note
Distribution Account shall be applied to the payment of interest on
each class of Notes pro rata on the basis of the total amount of
interest due on such class of Notes for such Distribution Date and, if
applicable, the Class A-1 Final Payment Date;
(ii) payment of principal to the Holders of the Class A-1 Notes
until the Outstanding Amount of the Class A-1 Notes is reduced to
zero; provided that the amounts in the Note Distribution Account shall
be applied to the payment of principal on all the Class A-1 Notes on a
pro rata basis;
(iii) payment of principal to the Holders of the Class A-2
Notes until the Outstanding Amount of the Class A-2 Notes is reduced
to zero; provided that the amounts in the Note Distribution Account
shall be applied to the payment of principal on all the Class A-2
Notes on a pro rata basis;
(iv) payment of principal to the Holders of the Class A-3 Notes
until the Outstanding Amount of the Class A-3 Notes is reduced to
zero; provided that the amounts in the Note Distribution Account shall
be applied to the payment of principal on all the Class A-3 Notes on a
pro rata basis; and
(v) payment of principal to the Holders of the Class A-4 Notes
until the Outstanding Amount of the Class A-4 Notes is reduced to
zero; provided that the amounts in the Note Distribution Account shall
be applied to the payment of principal on all the Class A-4 Notes on a
pro rata basis.
SECTION 8.3 General Provisions Regarding Accounts. (a) So long as
no Default or Event of Default shall have occurred and be continuing, all
or a portion of the funds in the Trust Accounts shall be invested in
Eligible Investments and reinvested by Indenture Trustee upon direction of
the Servicer, subject to the provisions of Section 5.1(b) of the Sale and
Servicing Agreement. In accordance with Section 5.1(b) of the Sale and
Servicing Agreement, on each Distribution Date, all interest and other
investment income (net of losses and investment expenses) on funds on
deposit in the Trust Accounts shall be distributed to the Seller by the
Indenture Trustee. Issuer will not direct Indenture Trustee to make any
investment of any funds or to sell any investment held in any of the Trust
Accounts unless the security interest Granted and perfected in such account
will continue to be perfected in such investment or the proceeds of such
sale, in either case without any further action by any Person, and, in
connection with any direction to Indenture Trustee to make any such
investment or sale, if requested by Indenture Trustee, Issuer shall deliver
to Indenture Trustee an Opinion of Counsel, acceptable to Indenture
Trustee, to such effect.
(b) Subject to Section 6.1(c), Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in any of the Trust
Accounts resulting from any loss on any Eligible Investment included
therein except for losses attributable to Indenture Trustee's failure to
make payments on such Eligible Investments issued by Indenture Trustee, in
its commercial capacity as principal obligor and not as trustee, in
accordance with their terms.
(c) If (i) Servicer shall have failed to give investment directions
for any funds on deposit in the Trust Accounts to Indenture Trustee by
11:00 a.m. Eastern Time (or such other time as may be agreed by Issuer and
Indenture Trustee) on any Business Day; or (ii) a Default or Event of
Default shall have occurred and be continuing with respect to the Notes but
the Notes shall not have been declared due and payable pursuant to Section
5.2, or (iii) if such Notes shall have been declared due and payable
following an Event of Default, amounts collected or receivable from the
Trust Estate are being applied in accordance with Section 5.5 as if there
had not been such a declaration; then Indenture Trustee shall, to the
fullest extent practicable, invest and reinvest funds in the Trust Accounts
in one or more Eligible Investments; provided, however, in the event of
clause (c)(i) above, Indenture Trustee shall invest solely in Eligible
Investments identified in clause (d) of the definition thereof. Indenture
Trustee shall not be liable for losses in respect of such investments in
Eligible Investments that comply with the requirements of the Basic
Documents.
SECTION 8.4 Release of Trust Estate. (a) Subject to the payment of
its fees and expenses pursuant to Section 6.7, Indenture Trustee may, and
when required by the provisions of this Indenture shall, execute
instruments to release property from the lien of this Indenture, or convey
Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by Indenture
Trustee as provided in this Article VIII shall be bound to ascertain
Indenture Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any moneys.
(b) Indenture Trustee shall, at such time as there are no Notes
outstanding and all sums due Indenture Trustee pursuant to Section 6.7 have
been paid, release any remaining portion of the Trust Estate that secured
the Notes from the lien of this Indenture and release to Issuer or any
other Person entitled thereto any funds then on deposit in the Trust
Accounts. Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.4(b) only upon receipt of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and
(if required by the TIA) Independent Certificates in accordance with TIA
314(c) and 314(d)(1) meeting the applicable requirements of Section 11.1.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, acknowledges that
from time to time the Indenture Trustee shall release the lien of this
Indenture on any Receivable to be sold to (i) Seller in accordance with
Section 3.3 of the Sale and Servicing Agreement and (ii) to Servicer in
accordance with Section 4.7 of the Sale and Servicing Agreement.
SECTION 8.5 Opinion of Counsel. Indenture Trustee shall receive at
least seven days' notice when requested by Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments
involved, and Indenture Trustee may also require as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory to
Indenture Trustee, stating the legal effect of any such action, outlining
the steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such
action will not materially and adversely impair the security for the Notes
or the rights of the Noteholders in contravention of the provisions of this
Indenture; provided that such Opinion of Counsel shall not be required to
express an opinion as to the fair value of the Trust Estate. Counsel
rendering any such opinion may rely, without independent investigation, on
the accuracy and validity of any certificate or other instrument delivered
to Indenture Trustee in connection with any such action.
ARTICLE IX SUPPLEMENTAL INDENTURES.
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.
(a)Without the consent of the Holders of any Notes but with prior notice to
the Rating Agencies by Issuer, as evidenced to Indenture Trustee, Issuer
and Indenture Trustee, when authorized by an Issuer Order, at any time and
from time to time, may enter into one or more indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as
in force at the date of the execution thereof), in form satisfactory to
Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to Issuer, and the
assumption by any such successor of the covenants of Issuer herein and
in the Notes contained;
(iii) to add to the covenants of Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein
conferred upon Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided that such action shall not materially and
adversely affect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI;
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA; or
(viii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to give effect to the
amendments contemplated by clauses (ii), (iii) and (iv) of Section
10.1(a) of the Sale and Servicing Agreement.
Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(b) Issuer and Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Holders of the Notes but
with prior notice to the Rating Agencies by Issuer, as evidenced to
Indenture Trustee, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided that such action shall not, as evidenced by an Opinion
of Counsel, adversely affect in any material respect the interests of any
Noteholder.
SECTION 9.2 Supplemental Indentures with Consent of Noteholders.
Issuer and Indenture Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies and with the consent of the
Holders of not less than a majority of the Outstanding Amount of the Notes,
by Act of such Holders delivered to Issuer and Indenture Trustee, enter
into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of
the provisions of, this Indenture or of modifying in any manner the rights
of the Holders of the Notes under this Indenture; provided that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(i) change the date of payment of any installment of principal
of or interest on any Note, or reduce the principal amount thereof,
the interest rate thereon or the Redemption Price with respect
thereto, change the provision of this Indenture relating to the
application of collections on, or the proceeds of the sale of, the
Trust Estate to payment of principal of or interest on the Notes, or
change any place of payment where, or the coin or currency in which,
any Note or the interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as provided in
Article V, to the payment of any such amount due on the Notes on or
after the respective due dates thereof (or, in the case of redemption,
on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences
provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct Indenture Trustee to direct Issuer to sell or
liquidate the Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Basic Documents cannot be modified
or waived without the consent of the Holder of each Outstanding Note
affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Distribution Date or the
Class A-1 Final Payment Date (including the calculation of any of the
individual components of such calculation) or to affect the rights of
the Holders of Notes to the benefit of any provisions for the
mandatory redemption of the Notes contained herein; or
(vii) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Trust Estate or, except as otherwise permitted or contemplated herein
or in the Basic Documents, terminate the lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Note
of the security provided by the lien of this Indenture.
Indenture Trustee may determine whether or not any Notes would be
affected by any supplemental indenture and any such determination shall be
conclusive upon the Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. Indenture Trustee shall not be
liable for any such determination made in good faith.
It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Promptly after the execution by Issuer and Indenture Trustee of any
supplemental indenture pursuant to this Section, Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of
such supplemental indenture. Any failure of Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts
created by this Indenture, Indenture Trustee shall be entitled to receive,
and subject to Sections 6.1 and 6.2, shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. Indenture Trustee
may, but shall not be obligated to, enter into any such supplemental
indenture that affects Indenture Trustee's own rights, duties, liabilities
or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties, liabilities and
immunities under this Indenture of Indenture Trustee, Issuer and the
Holders of the Notes shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture shall be
and be deemed to be part of the terms and conditions of this Indenture for
any and all purposes.
SECTION 9.5 Conformity With Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as
then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by Issuer shall,
bear a notation in form approved by Indenture Trustee as to any matter
provided for in such supplemental indenture. If Issuer or Indenture Trustee
shall so determine, new Notes so modified as to conform, in the opinion of
Indenture Trustee and Issuer, to any such supplemental indenture may be
prepared and executed by Issuer and authenticated and delivered by
Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X REDEMPTION OF NOTES.
SECTION 10.1 Redemption. (a) The Class A-4 Notes are subject to
redemption in whole, but not in part, at the direction of Seller or
Servicer pursuant to Section 9.1(a) of the Sale and Servicing Agreement, on
any Transfer Date on which Seller or Servicer exercises its option to
purchase the Trust Estate pursuant to said Section 9.1(a), for a purchase
price equal to the Redemption Price; provided that Issuer has available
funds sufficient to pay the Redemption Price. Servicer shall furnish the
Rating Agencies notice of such redemption. If the Class A-4 Notes are to be
redeemed pursuant to this Section 10.1(a), Servicer shall furnish notice of
such election to Indenture Trustee not later than 25 days prior to the
Redemption Date and Issuer shall deposit with Indenture Trustee in the Note
Distribution Account the Redemption Price of the Class A-4 Notes to be
redeemed whereupon all such Class A-4 Notes shall be due and payable on the
Redemption Date upon the furnishing of a notice complying with Section 10.2
to each Holder of the Class A-4 Notes.
(b) If the assets of Issuer are sold pursuant to Section 9.2 of the
Trust Agreement, all amounts on deposit in the Note Distribution Account
shall be paid to the Noteholders up to the Outstanding Amount of the Notes
and all accrued and unpaid interest thereon. If amounts are to be paid to
Noteholders pursuant to this Section 10.1(b), Servicer shall, to the extent
practicable, furnish notice of such event to Indenture Trustee not later
than 25 days prior to the Redemption Date whereupon all such amounts shall
be payable on the Redemption Date.
SECTION 10.2 Form of Redemption Notice. (a) Notice of redemption
under Section 10.1(a) shall be given by Indenture Trustee not less than
fifteen (15) days prior to the applicable Redemption Date by facsimile or
by first-class mail, postage prepaid, transmitted or mailed prior to the
applicable Redemption Date to each Holder of Class A-4 Notes, as of the
close of business on the Record Date preceding the applicable Redemption
Date, at such Holder's address appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such
Redemption Date is not applicable and that payments shall be made only
upon presentation and surrender of such Class A-4 Notes and the place
where such Class A-4 Notes are to be surrendered for payment of the
Redemption Price (which shall be the office or agency of Issuer to be
maintained as provided in Section 3.2); and
(iv) that interest on the Class A-4 Notes shall cease to accrue
on the Redemption Date.
Notice of redemption of the Class A-4 Notes shall be given by
Indenture Trustee in the name and at the expense of Issuer. Failure to give
notice of redemption, or any defect therein, to any Holder of any Class A-4
Note shall not impair or affect the validity of the redemption of any other
Class A-4 Note.
(b) Prior notice of redemption under Sections 10.1(b) is not
required to be given to Noteholders.
SECTION 10.3 Notes Payable on Redemption Date. The Class A-4 Notes to
be redeemed shall, following notice of redemption as required by Section
10.2 (in the case of redemption pursuant to Section 10.1(a)), on the
Redemption Date become due and payable at the Redemption Price and (unless
Issuer shall default in the payment of the Redemption Price) no interest
shall accrue on the Redemption Price for any period after the date to which
accrued interest is calculated for purposes of calculating the Redemption
Price.
ARTICLE XI MISCELLANEOUS.
SECTION 11.1 Compliance Certificates and Opinions, etc. (a) Upon any
application or request by Issuer to Indenture Trustee to take any action
under any provision of this Indenture, Issuer shall furnish to Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have
been complied with, (ii) an Opinion of Counsel stating that in the opinion
of such counsel all such conditions precedent, if any, have been complied
with and (iii) (if required by the TIA) an Independent Certificate from a
firm of certified public accountants meeting the applicable requirements of
this Section, except that, in the case of any such application or request
as to which the furnishing of such documents is specifically required by
any provision of this Indenture, no additional certificate or opinion need
be furnished.
Every Officer's Certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this
Indenture, Issuer shall, in addition to any obligation imposed in Section
11.1(a) or elsewhere in this Indenture, furnish to Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within 90 days of such
deposit) to Issuer of the Collateral or other property or securities to be
so deposited.
(ii) Whenever Issuer is required to furnish to Indenture
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (i), Issuer
shall also deliver to Indenture Trustee an Independent Certificate as
to the same matters, if the fair value to Issuer of the securities to
be so deposited and of all other such securities made the basis of any
such withdrawal or release since the commencement of the then-current
fiscal year of Issuer, as set forth in the certificates delivered
pursuant to clause (i) and this clause (ii), is 10% or more of the
Outstanding Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited, if the fair
value thereof to Issuer as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the
Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any Purchased
Receivables or Defaulted Receivables, whenever any property or
securities are to be released from the lien of this Indenture, Issuer
shall also furnish to Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such release) of
the property or securities proposed to be released and stating that in
the opinion of such person the proposed release will not impair the
security under this Indenture in contravention of the provisions
hereof.
(iv) Whenever Issuer is required to furnish to Indenture
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (iii), Issuer
shall also furnish to Indenture Trustee an Independent Certificate as
to the same matters if the fair value of the property or securities
and of all other property other than Purchased Receivables and
Defaulted Receivables, or securities released from the lien of this
Indenture since the commencement of the then current calendar year, as
set forth in the certificates required by clause (iii) and this clause
(iv), equals 10% or more of the Outstanding Amount of the Notes, but
such certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less than one
percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section, Issuer may (A) collect, liquidate, sell or otherwise dispose
of Receivables as and to the extent permitted or required by the Basic
Documents and (B) make cash payments out of the Trust Accounts as and
to the extent permitted or required by the Basic Documents.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an Authorized Officer of Issuer may be
based, insofar as it relates to legal matters, upon 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 his or
her certificate or opinion is based are erroneous. Any such certificate of
an Authorized Officer or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of Servicer, Seller,
Administrator, Administrative Agent or Issuer, stating that the information
with respect to such factual matters is in the possession of Servicer,
Seller, Administrator, Administrative Agent or Issuer, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to Indenture Trustee, it is provided that Issuer
shall deliver any document as a condition of the granting of such
application, or as evidence of Issuer's compliance with any term hereof, it
is intended that the truth and accuracy, at the time of the granting of
such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall
in such case be conditions precedent to the right of Issuer to have such
application granted or to the sufficiency of such certificate or report.
The foregoing shall not, however, be construed to affect Indenture
Trustee's right to rely upon the truth and accuracy of any statement or
opinion contained in any such document as provided in Article VI.
SECTION 11.3 Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Noteholders may be embodied in
and evidenced by one or more instruments of substantially similar tenor
signed by such Noteholders in person or by agents duly appointed in
writing; and except as herein otherwise expressly provided such action
shall become effective when such instrument or instruments are delivered to
Indenture Trustee, and, where it is hereby expressly required, to Issuer.
Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of Indenture Trustee and Issuer, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any customary manner of Indenture
Trustee.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of
every Note issued upon the registration thereof or in exchange therefor or
in lieu thereof, in respect of anything done, omitted or suffered to be
done by Indenture Trustee or Issuer in reliance thereon, whether or not
notation Of such action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by
this Indenture to be made upon, given or furnished to or filed with:
(a) Indenture Trustee by any Noteholder, Administrator,
Administrative Agent or Issuer shall be sufficient for every purpose
hereunder if personally delivered, delivered by overnight courier or
mailed certified mail, return receipt requested and shall be deemed to
have been duly given upon receipt to Indenture Trustee at its
Corporate Trust Office, or
(b) Issuer by Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if personally delivered,
delivered by overnight courier or mailed certified mail, return
receipt requested and shall be deemed to have been duly given upon
receipt to Issuer addressed to: Norwest Auto Trust 1996-A, in care of
Norwest Auto Receivables Corporation at Norwest Center, Sixth and
Marquette, Minneapolis, Minnesota, 55479-1026, Attention: Corporate
Secretary, with a copy to Administrator addressed to: Wilmington Trust
Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890 Attention: Corporate Trust Administration, or at any
other address previously furnished in writing to Indenture Trustee by
Issuer or Administrator. Issuer shall promptly transmit any notice
received by it from the Noteholders to Indenture Trustee.
Notices required to be given to the Rating Agencies by Issuer,
Indenture Trustee or Owner Trustee shall be in writing, personally
delivered, delivered by overnight courier or mailed certified mail, return
receipt requested to (i) in the case of Moody's, at the following address:
Moody's Investors Service, Inc., 99 Church Street, New York, New York
10004, (ii) in the case of S&P, at the following address: Standard & Poor's
Ratings Services, 26 Broadway (15th Floor), New York, New York 10004,
Attention of Asset Backed Surveillance Department; and (iii) in the case of
Fitch, at the following address: Fitch Investors Service, L.P., One State
Street Plaza, New York, New York 10004 or as to each of the foregoing, at
such other address as shall be designated by written notice to the other
parties.
SECTION 11.5 Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid to each Noteholder
affected by such event, at his address as it appears on the Note Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to
Noteholders is given by mail, neither the failure to mail such notice nor
any defect in any notice so mailed to any particular Noteholder shall
affect the sufficiency of such notice with respect to other Noteholders,
and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Noteholders shall be filed with
Indenture Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as the Seller shall direct the Indenture
Trustee shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance
constitute a Default or Event of Default.
SECTION 11.6 Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, Issuer
may enter into any agreement with any Holder of a Note providing for a
method of payment, or notice by Indenture Trustee or any Paying Agent to
such Holder, that is different from the methods provided for in this
Indenture for such payments or notices, provided that such methods are
reasonable and consented to by Indenture Trustee (which consent shall not
be unreasonably withheld). Issuer will furnish to the trustee a copy of
each such agreement and Indenture Trustee will cause payments to be made
and notices to be given in accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
The provisions of TIA 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of Indenture Trustee
in this Indenture shall bind its successors.
SECTION 11.10 Separability. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Noteholders, and any
other party secured hereunder, and any other person with an ownership
interest in any part of the Trust Estate, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 11.12 Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date on which nominally due, and no
interest shall accrue for the period from and after any such nominal date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and
the same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to
be effected by Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to Indenture Trustee or any other counsel
reasonably acceptable to Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any
other person secured hereunder or for the enforcement of any right or
remedy granted to Indenture Trustee under this Indenture.
SECTION 11.16 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of Issuer, Seller, Servicer,
Owner Trustee or Indenture Trustee on the Notes or under this Indenture or
any certificate or other writing delivered in connection herewith or
therewith, against (i) Seller, Servicer, Indenture Trustee or Owner Trustee
in its individual capacity, (ii) any owner of a beneficial interest in
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of Seller, Servicer, Indenture Trustee or Owner Trustee
in its individual capacity, any holder of a beneficial interest in Issuer,
Seller, Servicer, Owner Trustee or Indenture Trustee or of any successor or
assign of Seller, Servicer, Indenture Trustee or Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed
(it being understood that Indenture Trustee and Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such
entity. For all purposes of this Indenture, in the performance of any
duties or obligations of Issuer hereunder, Owner Trustee shall be subject
to, and entitled to the benefits of, the terms and provisions of Article
VI, VII and VIII of the Trust Agreement.
SECTION 11.17 No Petition. Indenture Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and
agree that they will not at any time institute against Seller or Issuer, or
join in any institution against Seller or Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, this
Indenture or any of the Basic Documents.
SECTION 11.18 Inspection. Issuer agrees that, on reasonable prior
notice, it will permit any representative of Indenture Trustee, during
Issuer's normal business hours, to examine all the books of account,
records, reports, and other papers of Issuer, to make copies and extracts
therefrom, to cause such books to be audited by Independent certified
public accountants, and to discuss Issuer's affairs, finances and accounts
with Issuer's officers, employees, and independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. Indenture Trustee shall and shall cause its representatives to
hold in confidence all such information except to the extent disclosure may
be required by law (and all reasonable applications for confidential
treatment are unavailing) and except to the extent that Indenture Trustee
may reasonably determine that such disclosure is consistent with its
obligations hereunder.
<PAGE>
IN WITNESS WHEREOF, Issuer and Indenture Trustee have caused this
Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
NORWEST AUTO TRUST 1996-A,
By: WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Owner Trustee,
By: /s/ Emmett R. Harmon
----------------------------------
Name: Emmett R. Harmon
Title: Vice President
THE CHASE MANHATTAN BANK,
not in its individual capacity
but solely as Indenture Trustee,
By: /s/ James J. Fevola
---------------------------------------
Name: James J. Fevola
Title: Second Vice President
<PAGE>
EXHIBIT A
FORM OF A-1 NOTES
REGISTERED $____________<F3>
No. R-____ CUSIP NO. 669377 AB 9
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or
its agent for registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NORWEST AUTO TRUST 1996-A
5.465% CLASS A-1 ASSET BACKED NOTES
Norwest Auto Trust 1996-A, a trust organized and existing under the
laws of the State of Delaware (including any successor, the "Issuer"), for
value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of __________________ DOLLARS ($___________),
partially payable on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction the numerator of which is the
initial principal amount of this Note and the denominator of which is
$350,000,000 (the "Fraction") by (ii) the aggregate amount, if any, payable
from the Note Distribution Account in respect of principal on the A-1 Notes
pursuant to Section 3.1 of the Indenture; provided that the entire unpaid
principal amount of this Note shall be due and payable on the earlier of
the Final Scheduled Distribution Date for the Class A-1 Notes and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture. The
Issuer will pay interest on this Note on each Distribution Date and the
Class A-1 Final Payment Date until the principal of this Note is paid or
made available for payment in an amount equal to the product of the Class
A-1 Noteholders' Interest Distributable Amount for the related Transfer
Date multiplied by the Fraction, subject to certain limitations contained
in Section 3.1 and Section 8.2 of the Indenture. Such principal of and
interest on this Note shall be paid in the manner specified in the
Indenture.
<F3> Denominations of $1,000 and integral multiples of $1,000
in excess thereof.
The principal of and interest on this Note are payable in Dollars.
All payments made by the Issuer with respect to this Note shall be applied
first to interest due and payable on this Note as provided above and then
to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set
forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Note shall not be entitled
to any benefit under the Indenture referred to on the reverse hereof, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: November 13, 1996
NORWEST AUTO TRUST 1996-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under the
Trust Agreement
By:________________________________________
Name:__________________________________
Title:_________________________________
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: November 13, 1996
THE CHASE MANHATTAN BANK,
not in its individual capacity,
but solely as Indenture Trustee
By:______________________________
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 5.465% Class A-1 Asset Backed Notes (herein called the
"A-1 Notes" or the "Notes"), all issued under an Indenture dated as of
November 13, 1996 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and The Chase Manhattan Bank,
not in its individual capacity but solely as trustee (the "Indenture
Trustee"), which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders
of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are not otherwise defined herein and that are
defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes and the Class A-2 Notes, Class A-3 Notes and Class A-4 Notes
are and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class A-1 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of Issuer, Seller, Servicer, Owner Trustee or Indenture Trustee
on the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) Seller,
Servicer, Indenture Trustee or Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director, employee or agent of Seller,
Servicer, Indenture Trustee or Owner Trustee in its individual capacity,
any holder of a beneficial interest in Issuer, Seller, Servicer, Owner
Trustee or Indenture Trustee or of any successor or assign of Seller,
Servicer, Indenture Trustee or Owner Trustee in its individual capacity,
except as any such Person may have expressly agreed (it being understood
that Indenture Trustee and Owner Trustee have no such obligations in their
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the Noteholders and the
Note Owners that, for purposes of Federal and State income tax and any
other tax measured in whole or in part by income, the Notes will qualify as
indebtedness of the Issuer. The Noteholders, by acceptance of a Note, agree
to treat, and to take no action inconsistent with the treatment of, the
Notes for such tax purposes as indebtedness of the Issuer.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that they will not at any time institute against Seller, or the Trust, or
join in any institution against Seller, or Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, this
Indenture or any of the Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency, herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Wilmington Trust Company or The
Chase Manhattan Bank, in its individual capacity, any owner of a beneficial
interest in the Issuer, nor any of their respective partners,
beneficiaries, agents, officers, directors, employees, 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, it being expressly understood that
said covenants, obligations and indemnifications have been made by the
Owner Trustee for the sole purposes of binding the interests of the Owner
Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained
in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto ____________________________
_________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements
of the Note Registrar, which requirements include
membership or participation in STAMP or such other
"signature guarantee program" as may be determined
by the Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
_________________________
*/ 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.
<PAGE>
EXHIBIT B
FORM OF A-2 NOTES
REGISTERED $____________<F4>
No. R-____ CUSIP NO. 669377 AC 7
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or
its agent for registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NORWEST AUTO TRUST 1996-A
5.800% CLASS A-2 ASSET BACKED NOTES
Norwest Auto Trust 1996-A, a trust organized and existing under the
laws of the State of Delaware (including any successor, the "Issuer"), for
value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of __________________ DOLLARS ($___________),
partially payable on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction the numerator of which is the
initial principal amount of this Note and the denominator of which is
$340,000,000 (the "Fraction") by (ii) the aggregate amount, if any, payable
from the Note Distribution Account in respect of principal on the A-2 Notes
pursuant to Section 3.1 of the Indenture; provided that the entire unpaid
principal amount of this Note shall be due and payable on the earlier of
the Final Scheduled Distribution Date for the Class A-2 Notes and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture. No
payments of principal of the A-2 Notes will be made until the principal of
the A-1 Notes has been paid in full. The Issuer will pay interest on this
Note on each Distribution Date until the principal of this Note is paid or
made available for payment in an amount equal to the product of the Class
A-2 Noteholders' Interest Distributable Amount for the related Transfer
Date multiplied by the Fraction, subject to certain limitations contained
in Section 3.1 and Section 8.2 of the Indenture. Such principal of and
interest on this Note shall be paid in the manner specified in the
Indenture.
<F4> Denominations of $1,000 and integral multiples of $1,000
in excess thereof.
The principal of and interest on this Note are payable in Dollars.
All payments made by the Issuer with respect to this Note shall be applied
first to interest due and payable on this Note as provided above and then
to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set
forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Note shall not be entitled
to any benefit under the Indenture referred to on the reverse hereof, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: November 13, 1996
NORWEST AUTO TRUST 1996-A
By: THE WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under the
Trust Agreement
By:______________________________________
Name:________________________________
Title:_______________________________
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: November 13, 1996
THE CHASE MANHATTAN BANK,
not in its individual capacity,
but solely as Indenture Trustee
By:_____________________________
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 5.800% Class A-2 Asset Backed Notes (herein called the
"A-2 Notes" or the "Notes"), all issued under an Indenture dated as of
November 13, 1996 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and The Chase Manhattan Bank,
not in its individual capacity but solely as trustee (the "Indenture
Trustee"), which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders
of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are not otherwise defined herein and that are
defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes and the Class A-1 Notes, Class A-3 Notes and Class A-4 Notes
are and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class A-2 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of Issuer, Seller, Servicer, Owner Trustee or Indenture Trustee
on the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) Seller,
Servicer, Indenture Trustee or Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director, employee or agent of Seller,
Servicer, Indenture Trustee or Owner Trustee in its individual capacity,
any holder of a beneficial interest in Issuer, Seller, Servicer, Owner
Trustee or Indenture Trustee or of any successor or assign of Seller,
Servicer, Indenture Trustee or Owner Trustee in its individual capacity,
except as any such Person may have expressly agreed (it being understood
that Indenture Trustee and Owner Trustee have no such obligations in their
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the Noteholders and the
Note Owners that, for purposes of Federal and State income tax and any
other tax measured in whole or in part by income, the Notes will qualify as
indebtedness of the Issuer. The Noteholders, by acceptance of a Note, agree
to treat, and to take no action inconsistent with the treatment of, the
Notes for such tax purposes as indebtedness of the Issuer.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that they will not at any time institute against Seller, the Trust, or join
in any institution against Seller, or Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, this
Indenture or any of the Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency, herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Wilmington Trust Company or The
Chase Manhattan Bank, in its individual capacity, any owner of a beneficial
interest in the Issuer, nor any of their respective partners,
beneficiaries, agents, officers, directors, employees, 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, it being expressly understood that
said covenants, obligations and indemnifications have been made by the
Owner Trustee for the sole purposes of binding the interests of the Owner
Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained
in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto _______________________________
_______________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Note Registrar, which requirements include
membership or participation in STAMP or such other
"signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
_________________________
*/ 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.
<PAGE>
EXHIBIT C
FORM OF A-3 NOTES
REGISTERED $____________<F5>
No. R-___ CUSIP NO. 669377 AD 5
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or
its agent for registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NORWEST AUTO TRUST 1996-A
5.900% CLASS A-3 ASSET BACKED NOTES
Norwest Auto Trust 199_-_, a trust organized and existing under the
laws of the State of Delaware (including any successor, the "Issuer"), for
value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of __________________ DOLLARS ($___________),
partially payable on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction the numerator of which is the
initial principal amount of this Note and the denominator of which is
$220,000,000 (the "Fraction") by (ii) the aggregate amount, if any, payable
from the Note Distribution Account in respect of principal on the A-3 Notes
pursuant to Section 3.1 of the Indenture; provided that the entire unpaid
principal amount of this Note shall be due and payable on the earlier of
the Final Scheduled Distribution Date for the Class A-3 Notes and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture. No
payments of principal of the Class A-3 Notes will be made until the
principal of the Class A-1 Notes and Class A-2 Notes has been paid in full.
The Issuer will pay interest on this Note on each Distribution Date until
the principal of this Note is paid or made available for payment in an
amount equal to the product of the Class A-3 Noteholders' Interest
Distributable Amount for the related Transfer Date multiplied by the
Fraction, subject to certain limitations contained in Section 3.1 and
Section 8.2 of the Indenture. Such principal of and interest on this Note
shall be paid in the manner specified in the Indenture.
<F5> Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
The principal of and interest on this Note are payable in Dollars. All
payments made by the Issuer with respect to this Note shall be applied
first to interest due and payable on this Note as provided above and then
to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set
forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Note shall not be entitled
to any benefit under the Indenture referred to on the reverse hereof, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: November 13, 1996
NORWEST AUTO TRUST 1996-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under the
Trust Agreement
By:________________________
Name:_______________________
Title:______________________
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: November 13, 1996
THE CHASE MANHATTAN BANK,
not in its individual capacity,
but solely as Indenture Trustee
By:_____________________________
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 5.900% Class A-3 Asset Backed Notes (herein called the
"A-3 Notes" or the "Notes"), all issued under an Indenture dated as of
November 13, 1996 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and The Chase Manhattan Bank,
not in its individual capacity but solely as trustee (the "Indenture
Trustee"), which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders
of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are not otherwise defined herein and that are
defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes and the Class A-1, Class A-2 Notes and Class A-4 Notes are
and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class A-3 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of Issuer, Seller, Servicer, Owner Trustee or Indenture Trustee
on the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) Seller,
Servicer, Indenture Trustee or Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director, employee or agent of Seller,
Servicer, Indenture Trustee or Owner Trustee in its individual capacity,
any holder of a beneficial interest in Issuer, Seller, Servicer, Owner
Trustee or Indenture Trustee or of any successor or assign of Seller,
Servicer, Indenture Trustee or Owner Trustee in its individual capacity,
except as any such Person may have expressly agreed (it being understood
that Indenture Trustee and Owner Trustee have no such obligations in their
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the Noteholders and the
Note Owners that, for purposes of Federal and State income tax and any
other tax measured in whole or in part by income, the Notes will qualify as
indebtedness of the Issuer. The Noteholders, by acceptance of a Note, agree
to treat, and to take no action inconsistent with the treatment of, the
Notes for such tax purposes as indebtedness of the Issuer.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that they will not at any time institute against Seller, or the Trust, or
join in any institution against Seller, or Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, this
Indenture or any of the Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency, herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Wilmington Trust Company or The
Chase Manhattan Bank, in its individual capacity, any owner of a beneficial
interest in the Issuer, nor any of their respective partners,
beneficiaries, agents, officers, directors, employees, 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, it being expressly understood that
said covenants, obligations and indemnifications have been made by the
Owner Trustee for the sole purposes of binding the interests of the Owner
Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained
in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto _______________________________
__________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Note Registrar, which requirements include
membership or participation in STAMP or such other
"signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
_________________________
*/ 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.
<PAGE>
EXHIBIT D
FORM OF A-4 NOTES
REGISTERED $____________<F6>
No. R-___ CUSIP NO. 669377 AE 3
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or
its agent for registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
NORWEST AUTO TRUST 1996-A
6.100% CLASS A-4 ASSET BACKED NOTES
Norwest Auto Trust 1996-A, a trust organized and existing under the
laws of the State of Delaware (including any successor, the "Issuer"), for
value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of __________________ DOLLARS ($___________),
partially payable on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction the numerator of which is the
initial principal amount of this Note and the denominator of which is
$120,140,000 (the "Fraction") by (ii) the aggregate amount, if any, payable
from the Note Distribution Account in respect of principal on the A-4 Notes
pursuant to Section 3.1 of the Indenture; provided that the entire unpaid
principal amount of this Note shall be due and payable on the earlier of
the Final Scheduled Distribution Date for the Class A-4 Notes and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture. No
payments of principal of the Class A-4 Notes will be made until the
principal of the Class A-1 Notes, Class A-2 Notes and Class A-3 Notes has
been paid in full. The Issuer will pay interest on this Note on each
Distribution Date until the principal of this Note is paid or made
available for payment in amount equal to the product of the Class A-4
Noteholders' Interest Distributable Amount for the related Transfer Date
multiplied by the Fraction, subject to certain limitations contained in
Section 3.1 and Section 8.2 of the Indenture. Such principal of and
interest on this Note shall be paid in the manner specified in the
Indenture.
<F6> Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
The principal of and interest on this Note are payable in such
Dollars. All payments made by the Issuer with respect to this Note shall
be applied first to interest due and payable on this Note as provided above
and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set
forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee by manual signature, this Note shall not be entitled
to any benefit under the Indenture referred to on the reverse hereof, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Dated: November 13, 1996
NORWEST AUTO TRUST 1996-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee under the
Trust Agreement
By:____________________________
Name:___________________________
Title:__________________________
<PAGE>
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: November 13, 1996
THE CHASE MANHATTAN BANK,
not in its individual capacity,
but solely as Indenture Trustee
By:___________________________
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its 6.100% Class A-4 Asset Backed Notes (herein called the
"A-4 Notes" or the "Notes"), all issued under an Indenture dated as of
November 13, 1996 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and The Chase Manhattan Bank,
not in its individual capacity but solely as trustee (the "Indenture
Trustee"), which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders
of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are not otherwise defined herein and that are
defined in the Indenture shall have the meanings assigned to them in or
pursuant to the Indenture.
The Notes and the Class A-1 Notes, Class A-2 Notes and Class A-3 Notes
are and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class A-4 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case of
a Note Owner, a beneficial interest in the Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of Issuer, Seller, Servicer, Owner Trustee or Indenture Trustee
on the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) Seller,
Servicer, Indenture Trustee or Owner Trustee in its individual capacity,
(ii) any owner of a beneficial interest in Issuer or (iii) any partner,
owner, beneficiary, agent, officer, director, employee or agent of Seller,
Servicer, Indenture Trustee or Owner Trustee in its individual capacity,
any holder of a beneficial interest in Issuer, Seller, Servicer, Owner
Trustee or Indenture Trustee or of any successor or assign of Seller,
Servicer, Indenture Trustee or Owner Trustee in its individual capacity,
except as any such Person may have expressly agreed (it being understood
that Indenture Trustee and Owner Trustee have no such obligations in their
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the Noteholders and the
Note Owners that, for purposes of Federal and State income tax and any
other tax measured in whole or in part by income, the Notes will qualify as
indebtedness of the Issuer. The Noteholders, by acceptance of a Note, agree
to treat, and to take no action inconsistent with the treatment of, the
Notes for such tax purposes as indebtedness of the Issuer.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that they will not at any time institute against Seller, the Trust, or join
in any institution against Seller, or Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, this
Indenture or any of the Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency, herein
prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither Wilmington Trust Company or The
Chase Manhattan Bank, in its individual capacity, any owner of a beneficial
interest in the Issuer, nor any of their respective partners,
beneficiaries, agents, officers, directors, employees, 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, it being expressly understood that
said covenants, obligations and indemnifications have been made by the
Owner Trustee for the sole purposes of binding the interests of the Owner
Trustee in the assets of the Issuer. The Holder of this Note by the
acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained
in the Indenture or in this Note.
<PAGE>
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
_________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto _______________________________
____________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: _____________ _______________________________ */
Signature Guaranteed:
________________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Note Registrar, which requirements include
membership or participation in STAMP or such other
"signature guarantee program" as may be determined by
the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
_________________________
*/ 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.
<PAGE>
EXHIBIT 4.2
NORWEST AUTO TRUST 1996-A
TRUST AGREEMENT
between
NORWEST AUTO RECEIVABLES CORPORATION
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of November 13, 1996
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS......................................... 1
SECTION 1.1. Capitalized Terms........................... 1
SECTION 1.2. Other Interpretive Provisions............... 1
ARTICLE II ORGANIZATION....................................... 1
SECTION 2.1. Name........................................ 1
SECTION 2.2. Office...................................... 2
SECTION 2.3. Purposes and Powers......................... 2
SECTION 2.4. Appointment of Owner Trustee................ 3
SECTION 2.5. Initial Capital Contribution of Trust Estate 3
SECTION 2.6. Declaration of Trust........................ 3
SECTION 2.7. Transfer of Interest to Depositor; Liability
of the Holder of the Depositor Certificate.. 3
SECTION 2.8. Title to Issuer Property.................... 4
SECTION 2.9. Situs of Issuer............................. 4
SECTION 2.10. Representations and Warranties of Depositor 4
SECTION 2.11. Federal Income Tax Allocations............. 5
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS............. 7
SECTION 3.1. Initial Ownership........................... 7
SECTION 3.2. The Certificates............................ 7
SECTION 3.3. Authentication of Certificates.............. 7
SECTION 3.4. Registration of Transfer and Exchange of
Certificates................................ 8
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen
Certificates................................ 8
SECTION 3.6. Persons Deemed Certificateholders........... 9
SECTION 3.7. Access to List of Certificateholders' Names
and Addresses............................... 9
SECTION 3.8. Maintenance of Office or Agency............. 9
SECTION 3.9. Appointment of Paying Agent................. 10
SECTION 3.10. Disposition by the Holder of Depositor
Certificate................................. 10
SECTION 3.11. Book-Entry Certificates.................... 11
SECTION 3.13. Definitive Certificates.................... 12
ARTICLE IV ACTIONS BY OWNER TRUSTEE........................... 12
SECTION 4.1. Prior Notice to Owners with Respect to
Certain Matters............................. 12
SECTION 4.2. Action by Certificateholders with Respect to
Certain Matters............................. 13
SECTION 4.3. Action by Certificateholders with Respect to
Bankruptcy.................................. 14
SECTION 4.4. Restrictions on Certificateholders' Power... 14
SECTION 4.5. Majority Control............................ 14
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.......... 14
SECTION 5.1. Establishment of Certificate Distribution
Account..................................... 14
SECTION 5.2. Application of Funds in Certificate
Distribution Account........................ 14
SECTION 5.3. Method of Payment........................... 15
SECTION 5.4. No Segregation of Monies; No Interest....... 16
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue
Service and Others.......................... 16
SECTION 5.6. Signature on Returns; Tax Matters Partner... 16
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE.............. 17
SECTION 6.1. General Authority........................... 17
SECTION 6.2. General Duties.............................. 17
SECTION 6.3. Action upon Instruction..................... 17
SECTION 6.4. No Duties Except as Specified in this
Agreement or in Instructions................ 18
SECTION 6.5. No Action Except under Specified Documents
or Instructions............................. 19
SECTION 6.6. Restrictions................................ 19
ARTICLE VII CONCERNING OWNER TRUSTEE.......................... 19
SECTION 7.1. Acceptance of Trusts and Duties............. 19
SECTION 7.2. Furnishing of Documents..................... 21
SECTION 7.3. Representations and Warranties.............. 21
SECTION 7.4. Reliance; Advice of Counsel................. 22
SECTION 7.5. Not Acting in Individual Capacity........... 22
SECTION 7.6. Owner Trustee Not Liable for Certificates
or Receivables.............................. 23
SECTION 7.7. Owner Trustee May Own Certificates
and Notes................................... 23
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE.................... 23
SECTION 8.1. Owner Trustee's Fees and Expenses........... 23
SECTION 8.2. Indemnification............................. 24
SECTION 8.3. Payments to Owner Trustee................... 24
ARTICLE IX TERMINATION OF TRUST AGREEMENT..................... 25
SECTION 9.1. Termination of Trust Agreement.............. 25
SECTION 9.2. Dissolution upon Bankruptcy of Depositor.... 26
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES................................. 26
SECTION 10.1. Eligibility Requirements for Owner Trustee. 26
SECTION 10.2. Resignation or Removal of Owner Trustee.... 27
SECTION 10.3. Successor Owner Trustee.................... 28
SECTION 10.4. Merger or Consolidation of Owner Trustee... 28
SECTION 10.5. Appointment of Co-Owner Trustee or Separate
Owner Trustee.............................. 29
ARTICLE XI MISCELLANEOUS...................................... 30
SECTION 11.1. Supplements and Amendments................. 30
SECTION 11.2. No Legal Title to Owner Trust Estate in
Certificateholders.......................... 32
SECTION 11.3. Limitations on Rights of Others............ 32
SECTION 11.4. Notices.................................... 32
SECTION 11.5. Severability............................... 32
SECTION 11.6. Separate Counterparts...................... 33
SECTION 11.7. Successors and Assigns..................... 33
SECTION 11.8. No Petition................................ 33
SECTION 11.9. No Recourse................................ 33
SECTION 11.10. Headings.................................. 33
SECTION 11.11. GOVERNING LAW............................. 33
SECTION 11.12. Certificate Transfer Restrictions......... 34
EXHIBITS
Exhibit A Form of Certificate
Exhibit B Form of Certificate of Trust
<PAGE>
TRUST AGREEMENT dated as of November 13, 1996 between NORWEST AUTO
RECEIVABLES CORPORATION, a Delaware corporation, as Depositor, and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Owner Trustee.
ARTICLE I DEFINITIONS.
SECTION 1.1. Capitalized Terms. Capitalized terms are used in this
Agreement as defined in Appendix X to the Sale and Servicing Agreement
among the trust established by this Agreement, Norwest Auto Receivables
Corporation, as Seller, and Norwest Bank Minnesota, N.A., as Servicer,
dated as of November 13, 1996, as the same may be amended and supplemented
from time to time.
SECTION 1.2. Other Interpretive Provisions. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or
other document delivered pursuant hereto unless otherwise defined therein.
For purposes of this Agreement and all such certificates and other
documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in
this Agreement to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles; (b)
terms defined in Article 9 of the UCC as in effect in the State of Delaware
and not otherwise defined in this Agreement are used as defined in that
Article; (c) the words "hereof," "herein" and "hereunder" and words of
similar import refer to this Agreement as a whole and not to any particular
provision of this Agreement; (d) references to any Article, Section,
Schedule or Exhibit are references to Articles, Sections, Schedules and
Exhibits in or to this Agreement (or the certificate or other document in
which the reference is made), and references to any paragraph, subsection,
clause or other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition; (e) the term "including" means "including without limitation";
(f) except as otherwise provided herein, references to any law or
regulation refer to that law or regulation as amended from time to time and
include any successor law or regulation; (g) references to any Person
include that Person's successors and assigns; and (h) headings are for
purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
ARTICLE II ORGANIZATION.
SECTION 2.1. Name. The trust created hereby shall be known as
"Norwest Auto Trust 1996-A", in which name Owner Trustee may conduct the
business of such trust, make and execute contracts and other instruments on
behalf of such trust and sue and be sued.
SECTION 2.2. Office. The office of Issuer shall be in care of Owner
Trustee at the Corporate Trust Office or at such other address as Owner
Trustee may designate by written notice to the Certificateholders and
Depositor.
SECTION 2.3. Purposes and Powers. The purpose of Issuer is, and
Issuer shall have the power and authority, to engage in the following
activities:
(a) to issue the Notes pursuant to the Indenture and the
Certificates pursuant to this Agreement, and to sell, transfer and
exchange the Notes and the Certificates and to pay interest on and
principal of the Notes and distributions on the Certificates;
(b) to acquire the property and assets set forth in the Sale
and Servicing Agreement from Depositor pursuant to the terms thereof,
to make deposits to and withdrawals from the Reserve Account and to
pay the organizational, start-up and transactional expenses of Issuer;
(c) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the terms of the Sale
and Servicing Agreement any portion of the Trust Estate released from
the Lien of, and remitted to Issuer pursuant to, the Indenture;
(d) to enter into and perform its obligations under the Basic
Documents to which it is a party;
(e) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholders and the Noteholders.
Issuer is hereby authorized to engage in the foregoing activities. Issuer
shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the Basic Documents.
SECTION 2.4. Appointment of Owner Trustee. Depositor hereby appoints
Owner Trustee as trustee of Issuer effective as of the date hereof, to have
all the rights, powers and duties set forth herein.
SECTION 2.5. Initial Capital Contribution of Trust Estate. Depositor
hereby sells, assigns, transfers, conveys and sets over to Owner Trustee,
as of the date hereof, the sum of $1. Owner Trustee hereby acknowledges
receipt in trust from Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial Owner Trust Estate and
shall be deposited in the Certificate Distribution Account.
SECTION 2.6. Declaration of Trust. Owner Trustee hereby declares that
it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the
Certificateholders, subject to the obligations of Issuer under the Basic
Documents. It is the intention of the parties hereto that Issuer constitute
a business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. It is the
intention of the parties hereto that, solely for income and franchise tax
purposes, Issuer shall be treated as a partnership, the partners of such
partnership being the Certificateholders (including the Depositor, as
general partner), and the Notes constituting indebtedness of the
partnership. The parties agree that, unless otherwise required by
appropriate tax authorities, Issuer will file or cause to be filed annual
or other necessary returns, reports and other forms consistent with the
characterization of Issuer as a partnership for such tax purposes.
Effective as of the date hereof, Owner Trustee shall have all rights,
powers and duties set forth herein and to the extent not inconsistent
herewith, in the Business Trust Statute with respect to accomplishing the
purposes of Issuer. Owner Trustee shall file the Certificate of Trust with
the Secretary of State of Delaware.
SECTION 2.7. Transfer of Interest to Depositor; Liability of the
Holder of the Depositor Certificate. (a) Depositor shall retain a 1%
interest in the Certificates issued by Issuer. Depositor shall pay
organizational expenses of Issuer as they may arise or shall, upon the
request of Owner Trustee, promptly reimburse Owner Trustee for any such
expenses paid by Owner Trustee. Notwithstanding Section 3803 of the
Business Trust Statute, Depositor shall also be liable directly to and will
indemnify the injured party for all losses, claims, damages, liabilities
and expenses of Issuer (including Expenses, to the extent not paid out of
the Owner Trust Estate) to the extent that Depositor would be liable if
Issuer were a partnership under the Delaware Revised Uniform Limited
Partnership Act in which the Depositor were a general partner; provided
that the Depositor shall not be liable for any losses incurred by a
Certificateholder in the capacity of an investor in the Certificates or a
Noteholder in the capacity of an investor in the Notes. In addition, any
third party creditors of Issuer (other than in connection with the
obligations described in the preceding sentence for which Depositor shall
not be liable) shall be deemed third party beneficiaries of this paragraph.
The obligations of the holder of the Depositor under this paragraph shall
be evidenced by the Certificates described in Section 3.10, which for
purposes of the Business Trust Statute shall be deemed to be a separate
class of Certificates from all other Certificates issued by the Trust.
(b) No Holder or Owner, other than to the extent set forth in clause
(a), shall have any personal liability for any liability or obligation of
the Trust.
SECTION 2.8. Title to Issuer Property. Legal title to all the Owner
Trust Estate shall be vested at all times in Issuer as a separate legal
entity except where applicable law in any jurisdiction requires title to
any part of the Owner Trust Estate to be vested in a trustee or trustees,
in which case title shall be deemed to be vested in Owner Trustee, a
co-trustee and/or a separate trustee, as the case may be.
SECTION 2.9. Situs of Issuer. Issuer will be located and administered
in the State of Delaware. All bank accounts maintained by Owner Trustee on
behalf of Issuer shall be located in the State of Delaware or the State of
New York. Payments will be received by Issuer only in Delaware or New York,
and payments will be made by Issuer only from Delaware or New York. The
only office of Issuer will be at the Corporate Trust Office in Delaware.
SECTION 2.10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Owner Trustee that:
(a) Depositor is duly organized and validly existing as a
Delaware corporation with power and authority to own its properties
and to conduct its business as such properties are currently owned and
such business is presently conducted.
(b) Depositor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such
qualifications.
(c) Depositor has the corporate power and authority to execute
and deliver this Agreement and to carry out its terms; Depositor has
full power and authority to sell and assign the property to be sold
and assigned to and deposited with Issuer and Depositor has duly
authorized such sale and assignment and deposit to Issuer by all
necessary corporate action; and the execution, delivery and
performance of this Agreement has been duly authorized by Depositor by
all necessary corporate action.
(d) This Agreement constitutes a legal, valid, and binding
obligation of the Depositor, enforceable against the Depositor in
accordance with its terms, subject, as to enforceability, to
applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws and to general
equitable principles.
(e) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the certificate of incorporation or by-laws of Depositor, or any
material indenture, agreement or other instrument to which Depositor
is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the best
of Depositor's knowledge, any order, rule or regulation applicable to
Depositor of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over Depositor or its properties.
(f) There are no proceedings or investigations pending or, to
the Depositor's best knowledge, threatened before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties: (i) asserting the invalidity of this Agreement, the
Indenture, any of the other Basic Documents, the Notes or the
Certificates, (ii) seeking to prevent the issuance of the Notes or the
Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Indenture or any of the other
Basic Documents, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Depositor or
its obligations under, or the validity or enforceability of, this
Agreement or (iv) which might adversely affect the federal income tax
attributes, or applicable state tax franchise or income tax
attributes, of the Notes and the Certificates.
SECTION 2.11. Federal Income Tax Allocations. The Certificateholders
acknowledge that it is their intent and that they understand that it is the
intent of Depositor and Servicer that, for the purposes of federal income,
state and local income and franchise tax and any other income taxes, Issuer
will be treated as a partnership and the Certificateholders (including
Depositor) will be treated as partners in that partnership. Depositor and
the other Certificateholders by acceptance of a Certificate agree to such
treatment and agree to take no action inconsistent with such treatment.
For purposes of federal income, state and local income and franchise tax
and any other income taxes each month:
(a) amounts paid to Certificateholders pursuant to Section
5.2(a)(i) shall be treated as "guaranteed payments" within the meaning
of Section 707(c) of the Code;
(b) to the extent that the characterization as "guaranteed
payments" provided for in paragraph (a) of this Section is not
respected, gross ordinary income of Issuer for such month as
determined for federal income tax purposes shall be allocated among
the Certificateholders as of the first Record Date following the end
of such month, in proportion to the principal amount of the
Certificates on such date, in an amount equal to the sum of (i) the
Certificateholders' Monthly Interest Distributable Amount for such
month, (ii) interest on the excess, if any, of the Certificateholders'
Interest Distributable Amount for the preceding Distribution Date over
the amount in respect of interest at the Certificate Rate that is
actually deposited in the Certificate Distribution Account on such
preceding Distribution Date, to the extent permitted by law, at the
Certificate Rate from such preceding Distribution Date through the
current Distribution Date, and (iii) the portion of the market
discount on the Receivables accrued during such month that is
allocable to the excess of the initial aggregate principal amount of
the Certificates over their initial aggregate issue price; and
(c) thereafter all remaining items of income, gain, loss or
deduction of Issuer for such month as determined for federal income
tax purposes shall be allocated to Depositor;
If the gross ordinary income of Issuer for any month is insufficient for
the allocations described in clause (b), subsequent gross ordinary income
shall first be allocated to make up such shortfall before being allocated
as provided in clause (c). Net losses of Issuer, if any, for any month as
determined for Federal income tax purposes (and each item of income, gain,
loss, credit and deduction entering into the computation thereof) shall be
allocated to Depositor to the extent Depositor is reasonably expected as
determined by Servicer to bear the economic burden of such net losses, then
net losses shall be allocated among the Certificateholders as of the first
Record Date following the end of such month in proportion to their
ownership of principal amount of Certificates on such Record Date until the
principal balance of the Certificates is reduced to zero. Depositor is
authorized to modify the allocations in this paragraph if necessary or
appropriate, in its sole discretion, for the allocations to fairly reflect
the economic income, gain or loss to Depositor, the Certificateholders, or
as otherwise required by the Code.
ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS.
SECTION 3.1. Initial Ownership. Upon the formation of Issuer by the
contribution by Depositor pursuant to Section 2.5 and until the issuance of
the Certificates, Depositor shall be the sole beneficiary of the Trust.
SECTION 3.2. The Certificates. The Certificates shall be issued in
denominations of $1,000 and integral multiples thereof; provided that (a)
Certificates may be issued to Depositor pursuant to Section 2.7 in such
denominations as to represent at least 1% of the initial Certificate
Balance and (b) one Certificate may be issued that includes any residual
portion of the initial Certificate Balance in a denomination other than an
integral multiple of $1,000. The Certificates shall be executed on behalf
of Issuer by manual or facsimile signature of an authorized officer of
Owner Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of Issuer, shall be validly issued
and entitled to the benefit of this Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to
the authentication and delivery of such Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates. A
transferee of a Certificate shall become a Certificateholder, and shall be
entitled to the rights and subject to the obligations of a
Certificateholder hereunder, upon due registration of such Certificate in
such transferee's name pursuant to Section 3.4.
SECTION 3.3. Authentication of Certificates. Concurrently with the
initial sale of the Receivables to Issuer pursuant to the Sale and
Servicing Agreement, Owner Trustee shall cause the Certificates in an
aggregate principal amount equal to the initial Certificate Balance to be
executed on behalf of Issuer, authenticated and delivered to or upon the
written order of Depositor, signed by its chairman of the board, its
president or any vice president, its secretary, or any assistant secretary,
or its treasurer or any assistant treasurer, without further corporate
action by Depositor, in authorized denominations. No Certificate shall
entitle its Holder to any benefit under this Agreement, or be valid for any
purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed
by Owner Trustee, by manual signature; such authentication shall constitute
conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication.
SECTION 3.4. Registration of Transfer and Exchange of Certificates.
Certificate Registrar shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 3.8, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, Owner Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Owner Trustee shall be the
initial Certificate Registrar.
Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.8, Owner Trustee shall
execute, authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Certificates in authorized denominations of
a like class and aggregate face amount dated the date of authentication by
Owner Trustee or any authenticating agent. At the option of a Holder,
Certificates may be exchanged for other Certificates of the same class in
authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.8.
Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of
transfer in form satisfactory to Owner Trustee and Certificate Registrar
duly executed by the Certificateholder or his attorney duly authorized in
writing, with such signature guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company. Each Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by Owner Trustee in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Certificates, but Owner Trustee or Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of
Certificates.
The preceding provisions of this Section 3.4 notwithstanding, Owner
Trustee shall not make and the Certificate Registrar need not register any
transfer or exchange of Certificates for a period of fifteen (15) days
preceding any Distribution Date for any payment with respect to the
Certificates.
SECTION 3.5. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate shall be surrendered to Certificate
Registrar, or if Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b)
there shall be delivered to Certificate Registrar and Owner Trustee such
security or indemnity as may be required by them to save each of them
harmless, then in the absence of notice that such Certificate shall have
been acquired by a bona fide purchaser, Owner Trustee on behalf of Issuer
shall execute and Owner Trustee shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like class, tenor and denomination. In
connection with the issuance of any new Certificate under this Section,
Owner Trustee or Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant
to this Section shall constitute conclusive evidence of an ownership
interest in Issuer, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
SECTION 3.6. Persons Deemed Certificateholders. Every Person by
virtue of becoming a Certificateholder or Owner in accordance with this
Agreement shall be deemed to be bound by the terms of this Agreement. Prior
to due presentation of a Certificate for registration of transfer, Owner
Trustee or Certificate Registrar may treat the Person in whose name any
Certificate shall be registered in the Certificate Register as the owner of
such Certificate for the purpose of receiving distributions pursuant to
Section 5.2 and for all other purposes whatsoever, and neither Owner
Trustee nor Certificate Registrar shall be bound by any notice to the
contrary.
SECTION 3.7. Access to List of Certificateholders' Names and
Addresses. Owner Trustee shall furnish or cause to be furnished to
Servicer, Depositor or Indenture Trustee, within 15 days after receipt by
Owner Trustee of a request therefor from Servicer, Depositor or Indenture
Trustee in writing, a list, in such form as Servicer, Depositor or
Indenture Trustee may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Holders of Certificates or one or more Holders of Certificates evidencing
not less than 25% of the Certificate Balance apply in writing to Owner
Trustee, and such application states that the applicants desire to
communicate with other Certificateholders with respect to their rights
under this Agreement or under the Certificates and such application is
accompanied by a copy of the communication that such applicants propose to
transmit, then Owner Trustee shall, within five Business Days after the
receipt of such application, afford such applicants access during normal
business hours to the current list of Certificateholders. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed not to
hold Depositor, Certificate Registrar or Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
SECTION 3.8. Maintenance of Office or Agency. Issuer shall maintain
in the Borough of Manhattan, The City of New York, an office or offices or
agency or agencies where Certificates may be surrendered for registration
of transfer or exchange and where notices and demands to or upon Issuer in
respect of the Certificates and the Basic Documents may be served. Issuer
initially designates Harris Trust Company of New York, 77 Water Street, 4th
Floor, New York, New York 10005 as its trust office for such purposes.
Owner Trustee shall give prompt written notice to Depositor and to the
Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
SECTION 3.9. Appointment of Paying Agent. Paying Agent shall make
distributions to Certificateholders from the Certificate Distribution
Account pursuant to Section 5.2 and shall report the amounts of such
distributions to Owner Trustee. Any Paying Agent shall have the revocable
power to withdraw funds from the Certificate Distribution Account for the
purpose of making the distributions referred to above. Owner Trustee may
revoke such power and remove Paying Agent if Owner Trustee determines in
its sole discretion that Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. Paying Agent
shall initially be Owner Trustee. Paying Agent shall be permitted to resign
upon 30 days' written notice to Owner Trustee and Servicer. In the event
that Owner Trustee shall no longer be Paying Agent, Owner Trustee shall
appoint a successor to act as Paying Agent (which shall be a bank or trust
company). Owner Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by Owner Trustee to execute and deliver
to Owner Trustee an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with Owner Trustee that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Certificateholders in trust for
the benefit of the Certificateholders entitled thereto until such sums
shall be paid to such Certificateholders. Paying Agent shall return all
unclaimed funds to Owner Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to Owner
Trustee. The provisions of Sections 7.1, 7.3, 7.4 and 8.1 shall apply to
Owner Trustee also in its role as Paying Agent, for so long as Owner
Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 3.10. Disposition by the Holder of Depositor Certificate. On
and after the Closing Date, Depositor shall retain beneficial and record
ownership of Certificates representing at least 1% of the initial
Certificate Balance. Any attempted transfer of any Certificate that would
reduce such interest of Depositor below 1% of the Certificate Balance shall
be void. Owner Trustee shall cause any Certificate issued to Depositor to
contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
SECTION 3.11. Book-Entry Certificates. The Certificates, upon
original issuance, will be issued in the form of a typewritten Certificate
or Certificates representing Book-Entry Certificates, to be delivered to
The Depository Trust Company, the initial Clearing Agency, by or on behalf
of Issuer; provided that one Definitive Certificate may be issued to
Depositor pursuant to Sections 2.7 and 3.10. Such Book-Entry Certificate or
Certificates shall initially be registered on the Certificate Register in
the name of Cede & Co., the nominee of the initial Clearing Agency, and no
beneficial owner (other than Depositor) will receive a Definitive
Certificate representing such beneficial owner's interest in such
Certificate, except as provided in Section 3.13. Unless and until
Definitive Certificates have been issued to beneficial owners pursuant to
Section 3.13:
(a) the provisions of this Section shall be in full force and
effect;
(b) Certificate Registrar, each Paying Agent and Owner Trustee
shall be entitled to deal with the Clearing Agency for all purposes of
this Agreement relating to the Book-Entry Certificates (including the
payment of principal of and interest on the Book-Entry Certificates
and the giving of instructions or directions to Owners of Book-Entry
Certificates) as the sole Holder of Book-Entry Certificates and shall
have no obligations to Owners thereof;
(c) to the extent that the provisions of this Section conflict
with any other provisions of this Agreement, the provisions of this
Section shall control;
(d) the rights of Owners of the Book-Entry Certificates shall
be exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Owners and the
Clearing Agency and/or Clearing Agency Participants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive
Certificates are issued pursuant to Section 3.13, the initial Clearing
Agency will make book-entry transfers among Clearing Agency
Participants and receive and transmit payments of principal of and
interest on the Book-Entry Certificates to such Clearing Agency
Participants; and
(e) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates
evidencing a specified percentage of the Certificate Balance, the
Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in
the Book-Entry Certificates and has delivered such instructions to
Owner Trustee.
SECTION 3.12. Notices to Clearing Agency. Whenever a notice or other
communication to Owners is required under this Agreement, unless and until
Definitive Certificates shall have been issued to Owners pursuant to
Section 3.13, Owner Trustee and each Paying Agent shall give all such
notices and communications specified herein to be given to Owners to the
Clearing Agency, and shall have no obligations to Owners, except to
Depositor.
SECTION 3.13. Definitive Certificates. If (a) Servicer advises Owner
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Certificates,
and Servicer is unable to locate a qualified successor, (b) Servicer at its
option advises Owner Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence
of an Event of Default, Owners of Certificates representing beneficial
interests aggregating at least a majority of the Certificate Balance advise
the Clearing Agency and Owner Trustee in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best
interest of Owners of Certificates, then the Clearing Agency shall notify
all Owners and Owner Trustee of the occurrence of any such event and of the
availability of the Definitive Certificates to Owners requesting the same.
Upon surrender to Owner Trustee of the typewritten Certificate or
Certificates representing the Book Entry Certificates by the Clearing
Agency, accompanied by registration instructions, Owner Trustee shall
execute and authenticate, or cause to be authenticated, the Definitive
Certificates in accordance with the instructions of the Clearing Agency.
Neither Certificate Registrar nor Owner Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, Owner Trustee and each Paying Agent shall
recognize the Holders of the Definitive Certificates as Certificateholders.
The Definitive Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to Owner
Trustee, as evidenced by its execution thereof.
ARTICLE IV ACTIONS BY OWNER TRUSTEE.
SECTION 4.1. Prior Notice to Owners with Respect to Certain Matters.
With respect to the following matters, Owner Trustee shall not take action
unless at least 30 days before the taking of such action, Owner Trustee
shall have notified the Certificateholders in writing of the proposed
action and the Certificateholders shall not have notified Owner Trustee in
writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by Issuer
(except claims or lawsuits brought in connection with the collection
of the Receivables) and the compromise of any material action, claim
or lawsuit brought by or against Issuer (except with respect to the
aforementioned claims or lawsuits for collection of the Receivables);
(b) the election by Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any Noteholder is not required
and such amendment materially adversely affects the interest of the
Certificateholders;
(e) the amendment, change or modification of the Sale and
Servicing Agreement, Administrative Agent Agreement or the
Administration Agreement, except to cure any ambiguity or defect or to
amend or supplement any provision in a manner that would not
materially adversely affect the interests of the Certificateholders;
or
(f) the appointment pursuant to the Indenture of a successor
Indenture Trustee or the consent to the assignment by the Note
Registrar, Paying Agent or Indenture Trustee or Certificate Registrar
of its obligations under the Indenture or this Agreement, as
applicable.
Owner Trustee shall notify the Certificateholders in writing of any
appointment of a successor Paying Agent or Certificate Registrar within
five Business Days thereof.
SECTION 4.2. Action by Certificateholders with Respect to Certain
Matters. Owner Trustee shall not have the power, except upon the direction
of the Certificateholders, to (a) remove Servicer under the Sale and
Servicing Agreement pursuant to Section 8.1 thereof, (b) except as
expressly provided in the Basic Documents, sell the Receivables after the
termination of the Indenture, (c) remove the Administrator under the
Administration Agreement, (d) appoint a successor Administrator, or (e)
remove the Administrative Agent or appoint a successor Administrative Agent
under the Administrative Agent Agreement. Owner Trustee shall take the
actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholders.
SECTION 4.3. Action by Certificateholders with Respect to Bankruptcy.
Owner Trustee shall not have the power to commence a voluntary proceeding
in bankruptcy relating to Issuer until the Outstanding Amount of all the
Notes has been reduced to zero and without the unanimous prior approval of
all Certificateholders and the delivery to Owner Trustee by each such
Certificateholder of a certificate certifying that such Certificateholder
reasonably believes that Issuer is insolvent.
SECTION 4.4. Restrictions on Certificateholders' Power. The
Certificateholders shall not direct Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligation of Issuer or Owner Trustee under this Agreement or any of the
Basic Documents or would be contrary to Section 2.3 nor shall Owner Trustee
be obligated to follow any such direction, if given.
SECTION 4.5. Majority Control. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement
may be taken by the Holders of Certificates evidencing not less than a
majority of the Certificate Balance. Except as expressly provided herein,
any written notice of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Holders of Certificates
evidencing not less than a majority of the Certificate Balance at the time
of the delivery of such notice.
ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.
SECTION 5.1. Establishment of Certificate Distribution Account. Owner
Trustee, for the benefit of the Certificateholders, shall establish and
maintain in the name of Issuer an Eligible Deposit Account (the
"Certificate Distribution Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Certificateholders. Except as otherwise provided herein, the Certificate
Distribution Account shall be under the sole dominion and control of Owner
Trustee for the benefit of the Certificateholders.
SECTION 5.2. Application of Funds in Certificate Distribution
Account. (a)On each Distribution Date, Owner Trustee will, based on the
information contained in Servicer's Report delivered on the related
Determination Date pursuant to Section 4.9 of the Sale and Servicing
Agreement, distribute to Certificateholders, to the extent of the funds
available, amounts deposited in the Certificate Distribution Account
pursuant to Section 5.5 of the Sale and Servicing Agreement on such
Distribution Date in the following order of priority:
(i) first, to the Certificateholders, on a pro rata basis, an
amount equal to the Certificateholders' Interest Distributable Amount;
and
(ii) second, to the Certificateholders, on a pro rata basis, an
amount equal to the Certificateholders' Principal Distributable
Amount.
(b) On each Distribution Date, Owner Trustee shall send, or cause to
be sent, to each Certificateholder the statement provided to Owner Trustee
by Servicer pursuant to Section 5.6 of the Sale and Servicing Agreement on
such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is
legally owed by Issuer (but such authorization shall not prevent Owner
Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome
of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by Issuer and remitted to the
appropriate taxing authority. If there is a possibility that withholding
tax is payable with respect to a distribution (such as a distribution to a
non-United States Certificateholder), Owner Trustee may in its sole
discretion withhold such amounts in accordance with this clause (c). In the
event that an Owner wishes to apply for a refund of any such withholding
tax, Owner Trustee shall reasonably cooperate with such Certificateholder
in making such claim so long as such Certificateholder agrees to reimburse
Owner Trustee for any out-of-pocket expenses incurred.
SECTION 5.3. Method of Payment. Subject to Section 9.1(c),
distributions required to be made to Certificateholders on any Distribution
Date shall be made to each Certificateholder of record on the preceding
Record Date either by wire transfer, in immediately available funds, to the
account of such Holder at a bank or other entity having appropriate
facilities therefor, if (a) such Certificateholder shall have provided to
Certificate Registrar appropriate written instructions at least five
Business Days prior to such Distribution Date and such Holder's
Certificates in the aggregate evidence a denomination of not less than
$1,000,000 or (b) such Certificateholder is the Depositor, or an Affiliate
thereof, or, if not, by check mailed to such Certificateholder at the
address of such Holder appearing in the Certificate Register; provided
that, unless Definitive Certificates have been issued pursuant to Section
3.13, with respect to Certificates registered on the Record Date in the
name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), distributions will be made by wire transfer in immediately
available funds to the account designated by such nominee. Notwithstanding
the foregoing, the final distribution in respect of any Certificate
(whether on the Final Scheduled Distribution Date or otherwise) will be
payable only upon presentation and surrender of such Certificate at the
office or agency maintained for that purpose by Owner Trustee pursuant to
Section 3.8.
SECTION 5.4. No Segregation of Monies; No Interest. Subject to
Sections 5.1 and 5.2, monies received by Owner Trustee or any Paying Agent
hereunder need not be segregated in any manner except to the extent
required by law or the Indenture or the Sale and Servicing Agreement and
may be deposited under such general conditions as may be prescribed by law,
and neither Owner Trustee nor any Paying Agent shall not be liable for any
interest thereon.
SECTION 5.5. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. Issuer shall
(a) maintain (or cause to be maintained) the books of Issuer on a calendar
year basis on the accrual method of accounting, (b) deliver (or cause to be
delivered) to each Certificateholder, as may be required by the Code and
applicable Treasury Regulations, such information as may be required
(including Schedule K-1) to enable each Certificateholder to prepare its
Federal and state income tax returns, (c) prepare and file such tax returns
relating to Issuer (including a partnership information return, Form 1065),
and make such elections as may from time to time be required or appropriate
under any applicable state or Federal statute or rule or regulation
thereunder so as to maintain the Trust's characterization as a partnership
for Federal income tax purposes, (d) cause such tax returns to be signed in
the manner required by law and (e) collect or cause to be collected any
withholding tax as described in and in accordance with Section 5.2(c) with
respect to income or distributions to Certificateholders. Issuer shall
cooperate with the Depositor in making all elections pursuant to this
Section as directed in writing by the Depositor. Issuer shall elect under
Section 1278 of the Code to include in income currently any market discount
that accrues with respect to the Receivables. Issuer shall not make the
election provided under Section 754 of the Code.
SECTION 5.6. Signature on Returns; Tax Matters Partner. (a)
Notwithstanding the provisions of Section 5.5, Depositor shall sign on
behalf of Issuer the tax returns of Issuer, unless applicable law requires
Owner Trustee to sign such documents, in which case such documents shall be
signed by Owner Trustee at the written direction of Depositor.
(b) Depositor shall be the "tax matters partner" of Issuer pursuant
to the Code.
ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE.
SECTION 6.1. General Authority. Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which Issuer is
named as a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which Issuer is named
as a party and any amendment thereto, in each case, in such form as
Depositor shall approve as evidenced conclusively by Owner Trustee's
execution thereof, and on behalf of Issuer at the written direction of
Depositor, to direct Indenture Trustee to authenticate and deliver Class
A-1 Notes in the aggregate principal amount of $350,000,000, Class A-2
Notes in the aggregate principal amount of $340,000,000, Class A-3 Notes in
the aggregate principal amount of $220,000,000 and Class A-4 Notes in the
aggregate principal amount of $120,140,000. In addition to the foregoing,
Owner Trustee is authorized, but shall not be obligated, to take all
actions required of Issuer pursuant to the Basic Documents. Owner Trustee
is further authorized from time to time to take such action as Servicer,
Administrative Agent or Administrator recommends or directs in writing with
respect to the Basic Documents, except to the extent that this Agreement
expressly requires the consent of Certificateholders for such action.
SECTION 6.2. General Duties. It shall be the duty of Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant
to the terms of this Agreement and the other Basic Documents and to
administer Issuer in the interest of Owners, subject to the Basic Documents
and in accordance with the provisions of this Agreement. Notwithstanding
the foregoing, Owner Trustee shall be deemed to have discharged its duties
and responsibilities hereunder and under the Basic Documents to the extent
Administrator or the Administrative Agent has agreed in the Administration
Agreement or the Administrative Agent Agreement to perform any act or to
discharge any duty of Owner Trustee or Issuer hereunder or under any Basic
Document, and Owner Trustee shall not be liable for the default or failure
of Administrator to carry out its obligations under the Administration
Agreement or the Administrative Agent to carry out its obligations under
the Administrative Agent Agreement.
SECTION 6.3. Action upon Instruction. (a) Subject to Article IV, the
Certificateholders may, by written instruction, direct Owner Trustee in the
management of Issuer. Such direction may be exercised at any time by
written instruction of the Certificateholders pursuant to Article IV.
(b) Owner Trustee shall not be required to take any action hereunder
or under any Basic Document if Owner Trustee shall have been advised by
counsel that such action is likely to result in liability on the part of
Owner Trustee or is contrary to the terms hereof or of any Basic Document
or is otherwise contrary to law.
(c) Whenever Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or
any Basic Document, Owner Trustee shall promptly give notice (in such form
as shall be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted, and to the
extent Owner Trustee acts in good faith in accordance with any written
instruction of the Certificateholders received, Owner Trustee shall not be
liable on account of such action to any Person. If Owner Trustee shall not
have received appropriate instruction within ten days of such notice (or
within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action, not inconsistent
with this Agreement or the Basic Documents, as it shall deem to be in the
best interests of the Certificateholders, and shall have no liability to
any Person for such action or inaction.
(d) If Owner Trustee is unsure as to the application of any provision
of this Agreement or any Basic Document or any such provision is ambiguous
as to its application, or is, or appears to be, in conflict with any other
applicable provision, or in the event that this Agreement permits any
determination by Owner Trustee or is silent or is incomplete as to the
course of action that Owner Trustee is required to take with respect to a
particular set of facts, Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Certificateholders
requesting instruction and, to the extent that Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may
be necessary under the circumstances) it may, but shall be under no duty
to, take or refrain from taking such action, not inconsistent with this
Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and shall have no liability to any
Person for such action or inaction.
SECTION 6.4. No Duties Except as Specified in this Agreement or in
Instructions. Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose
of, or otherwise deal with the Owner Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which Owner Trustee is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by Owner Trustee pursuant to Section 6.3; and no
implied duties or obligations shall be read into this Agreement or any
Basic Document against Owner Trustee. Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
prepare or file any Commission filing for Issuer or to record this
Agreement or any Basic Document. Owner Trustee nevertheless agrees that it
will, at its own cost and expense, promptly take all action as may be
necessary to discharge any Liens on any part of the Owner Trust Estate that
result from actions by, or claims against, Owner Trustee that are not
related to the ownership or the administration of the Owner Trust Estate.
SECTION 6.5. No Action Except under Specified Documents or
Instructions. Owner Trustee shall not manage, control, use, sell, dispose
of or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon
Owner Trustee pursuant to this Agreement, (ii) in accordance with the Basic
Documents and (iii) in accordance with any document or instruction
delivered to Owner Trustee pursuant to Section 6.3.
SECTION 6.6. Restrictions. Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of Issuer set forth in Section
2.3 or (b) that, to the actual knowledge of the Owner Trustee, would (i)
affect the treatment of the Notes as indebtedness for federal income or
state income or franchise tax purposes, (ii) be deemed to cause a taxable
exchange of the Notes for federal income or state income or franchise tax
purposes or (iii) cause Issuer or any portion thereof to be taxable as an
association or publicly traded partnership taxable as a corporation for
federal income or state income or franchise tax purposes. The
Certificateholders shall not direct Owner Trustee to take action that would
violate the provisions of this Section.
ARTICLE VII CONCERNING OWNER TRUSTEE.
SECTION 7.1. Acceptance of Trusts and Duties. Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. Owner
Trustee also agrees to disburse all moneys actually received by it
constituting part of the Owner Trust Estate upon the terms of the Basic
Documents and this Agreement. Owner Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct, bad faith or negligence or (ii)
in the case of the inaccuracy of any representation or warranty contained
in Section 7.3 expressly made by Owner Trustee. In particular, but not by
way of limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) Owner Trustee shall not be liable for any error of judgment
made by a Responsible Officer of Owner Trustee;
(b) Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of Depositor, Servicer, Administrator, Administrative
Agent or any Certificateholder;
(c) no provision of this Agreement or any Basic Document shall
require Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers
hereunder or under any Basic Document if Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or amounts
distributable on the Certificates;
(e) Owner Trustee shall not be responsible for or in respect of
the validity or sufficiency of this Agreement or for the due execution
hereof by Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Owner Trust Estate or for
or in respect of the validity or sufficiency of the Basic Documents,
other than the certificate of authentication on the Certificates, and
Owner Trustee shall in no event assume or incur any liability, duty or
obligation to any Noteholder or to any Certificateholder, other than
as expressly provided for herein and in the Basic Documents;
(f) Owner Trustee shall not be liable for the default or
misconduct of Indenture Trustee, Servicer, Administrative Agent or
Administrator under any of the Basic Documents or otherwise and Owner
Trustee shall have no obligation or liability to perform the
obligations of Issuer under this Agreement or the Basic Documents that
are required to be performed by Indenture Trustee under the Indenture,
Servicer under the Sale and Servicing Agreement, Administrative Agent
under the Administrative Agent Agreement or Administrator under the
Administration Agreement; and
(g) Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any Basic Document, at
the request, order or direction of any of the Certificateholders,
unless such Certificateholders have offered to Owner Trustee security
or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by Owner Trustee therein or thereby.
The right of Owner Trustee to perform any discretionary act enumerated
in this Agreement or in any Basic Document shall not be construed as a
duty, and Owner Trustee shall not be answerable for other than its
negligence, bad faith or willful misconduct in the performance of any
such act.
SECTION 7.2. Furnishing of Documents. Owner Trustee shall furnish to
the Certificateholders promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to
Owner Trustee under the Basic Documents.
SECTION 7.3. Representations and Warranties. Owner Trustee hereby
represents and warrants to Depositor, for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware and
having an office within the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement, and this Agreement
will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Agreement on its behalf.
(c) This Agreement constitutes a legal, valid and binding
obligation of Owner Trustee, enforceable against Owner Trustee in
accordance with its respective terms, subject, as to enforceability,
to applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws affecting enforcement
of the rights of creditors of banks generally and to equitable
limitations on the availability of specific remedies.
(d) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of Owner Trustee or
any judgment or order binding on it, or constitute any default under
its charter documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound.
SECTION 7.4. Reliance; Advice of Counsel. (a) Owner Trustee shall
incur no liability to anyone in acting upon any signature, instrument,
notice, resolution, request, consent, order, certificate, report, opinion,
bond or other document or paper believed by it to be genuine and believed
by it to be signed by the proper party or parties. Owner Trustee may accept
a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full
force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer, secretary or other authorized officers of
the relevant party, as to such fact or matter, and such certificate shall
constitute full protection to Owner Trustee for any action taken or omitted
to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
Basic Documents, Owner Trustee (i) may act directly or through its agents
or attorneys pursuant to agreements entered into with any of them, but
Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys selected with reasonable care and (ii) may consult with
counsel, accountants and other skilled persons knowledgeable in the
relevant area to be selected with reasonable care and employed by it. Owner
Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons and according to such opinion or
advice not contrary to this Agreement or any Basic Document.
SECTION 7.5. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against Owner Trustee by reason
of the transactions contemplated by this Agreement or any Basic Document
shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
SECTION 7.6. Owner Trustee Not Liable for Certificates or
Receivables. The recitals contained herein and in the Certificates (other
than the signature and countersignature of Owner Trustee on the
Certificates) shall be taken as the statements of Depositor and Owner
Trustee assumes no responsibility for the correctness thereof. Owner
Trustee makes no representations as to the validity or sufficiency of this
Agreement, of any Basic Document or of the Certificates (other than the
signature and countersignature of Owner Trustee on the Certificates) or the
Notes, or of any Receivable or related documents. Owner Trustee shall at no
time have any responsibility or liability for or with respect to the
legality, validity and enforceability of any Receivable, or the perfection
and priority of any security interest created by any Receivable in any
Financed Vehicle or the maintenance of any such perfection and priority, or
for or with respect to the sufficiency of the Owner Trust Estate or its
ability to generate the payments to be distributed to Certificateholders
under this Agreement or the Noteholders under the Indenture, including: the
existence, condition and ownership of any Financed Vehicle; the existence
and enforceability of any insurance thereon; the existence and contents of
any Receivable on any computer or other record thereof; the validity of the
assignment of any Receivable to Issuer or of any intervening assignment;
the completeness of any Receivable; the performance or enforcement of any
Receivable; the compliance by Depositor or Servicer with any warranty or
representation made under any Basic Document or in any related document or
the accuracy of any such warranty or representation or any action of
Indenture Trustee, Administrator, Administrative Agent or Servicer or any
subservicer taken in the name of Owner Trustee.
SECTION 7.7. Owner Trustee May Own Certificates and Notes. Owner
Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with Depositor, Indenture
Trustee, Administrator, Administrative Agent and Servicer in banking
transactions with the same rights as it would have if it were not Owner
Trustee.
ARTICLE VIII COMPENSATION OF OWNER TRUSTEE.
SECTION 8.1. Owner Trustee's Fees and Expenses. Owner Trustee shall
receive from the Depositor as compensation for its services hereunder such
fees as have been separately agreed upon before the date hereof between
Depositor and Owner Trustee, and Owner Trustee shall be entitled to be
reimbursed by Depositor for its other reasonable expenses hereunder,
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
SECTION 8.2. Indemnification. Depositor shall be liable as primary
obligor for, and shall indemnify Owner Trustee and its successors, assigns,
agents and servants (collectively, the "Indemnified Parties") from and
against, any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind
and nature whatsoever (collectively, "Expenses") which may at any time be
imposed on, incurred by, or asserted against Owner Trustee or any
Indemnified Party in any way relating to or arising out of this Agreement,
the Basic Documents, the Owner Trust Estate, the administration of the
Owner Trust Estate or the action or inaction of Owner Trustee hereunder,
except only that Depositor shall not be liable for or required to indemnify
Owner Trustee from and against Expenses arising or resulting from any of
the matters described in the third sentence of Section 7.1. The indemnities
contained in this Section shall survive the resignation or termination of
Owner Trustee or the termination of this Agreement. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim
or demand shall be brought or asserted against any Indemnified Party in
respect of which indemnity may be sought pursuant to this Section 7.2, such
Indemnified Party shall promptly notify Depositor in writing, and Depositor
upon request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party
and any others Depositor may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding.
Depositor shall not be liable for any settlement of any claim or proceeding
effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, Depositor agrees to
indemnify any Indemnified Party from and against any loss or liability by
reason of such settlement or judgment. Depositor shall not, without the
prior written consent of the Indemnified Party, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified
Party is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on
claims that are the subject matter of such proceeding.
SECTION 8.3. Payments to Owner Trustee. Any amounts paid to Owner
Trustee pursuant to this Article VIII shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
ARTICLE IX TERMINATION OF TRUST AGREEMENT.
SECTION 9.1. Termination of Trust Agreement. (a) This Agreement
(other than Article VIII) and Issuer shall terminate and be of no further
force or effect, (i) upon the final distribution by Owner Trustee of all
moneys or other property or proceeds of the Owner Trust Estate in
accordance with the terms of the Indenture, the Sale and Servicing
Agreement and Article V or (ii) at the time provided in Section 9.2. The
bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder or Owner, other than Depositor as described in Section
9.2, shall not (x) operate to terminate this Agreement or Issuer, nor (y)
entitle such Certificateholder's or Owner's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for
a partition or winding up of all or any part of Issuer or Owner Trust
Estate nor (z) otherwise affect the rights, obligations and liabilities of
the parties hereto.
(b) Except as provided in clause (a), neither Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of Issuer, specifying the Distribution
Date upon which the Certificateholders shall surrender their Certificates
to Paying Agent for payment of the final distribution and cancellation,
shall be given by Owner Trustee by letter to Certificateholders mailed
within five Business Days of receipt of notice of such termination from
Servicer given pursuant to Section 9.1(c) of the Sale and Servicing
Agreement, stating (i) the Distribution Date upon or with respect to which
final payment of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of Paying Agent therein
designated, (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of Paying Agent therein specified. Owner Trustee
shall give such notice to Certificate Registrar (if other than Owner
Trustee) and Paying Agent at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates,
Paying Agent shall cause to be distributed to Certificateholders amounts
distributable on such Distribution Date pursuant to Section 5.2.
If all of the Certificateholders shall not surrender their
Certificates for cancellation within six months after the date specified in
the above mentioned written notice, Owner Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the
Certificates shall not have been surrendered for cancellation, Owner
Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the funds and other assets that shall remain subject to this Agreement. Any
funds remaining in Issuer after exhaustion of such remedies shall be
distributed, subject to applicable escheat laws, by Owner Trustee to
Depositor.
(d) Upon the winding up of Issuer and its termination, Owner Trustee
shall cause the Certificate of Trust to be canceled by filing a certificate
of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
SECTION 9.2. Dissolution upon Bankruptcy of Depositor.
Notwithstanding the provisions of Section 3808 of the Business Trust
Statute, in the event that an Insolvency Event shall occur with respect to
Depositor, this Agreement shall be terminated in accordance with Section
9.1, 90 days after the date of such Insolvency Event, unless, before the
end of such 90-day period, Owner Trustee shall have received written
instructions from Noteholders holding a majority of the outstanding
principal balance of each of the Class A-1 Notes, Class A-2 Notes, Class
A-3 Notes and the Class A-4 Notes and Certificateholders holding a majority
of the Certificate Balance (other than Depositor) to the effect that each
such party disapproves of the liquidation of the Receivables and
termination of Issuer. Promptly after the occurrence of any Insolvency
Event with respect to Depositor, (i) Depositor shall give Indenture Trustee
and Owner Trustee written notice of such Insolvency Event, (ii) Owner
Trustee shall, upon the receipt of such written notice from Depositor, give
prompt written notice to the Certificateholders and Indenture Trustee of
the occurrence of such event and (iii) Indenture Trustee shall, upon
receipt of written notice of such Insolvency Event from Owner Trustee or
Depositor, give prompt written notice to the Noteholders of the occurrence
of such event; provided that any failure to give a notice required by this
sentence shall not prevent or delay, in any manner, a termination of Issuer
pursuant to the first sentence of this Section 9.2. Upon a termination
pursuant to this Section, Owner Trustee shall direct Indenture Trustee
promptly to sell the assets of the Owner Trust Estate (other than any
Eligible Deposit Account) in a commercially reasonable manner and on
commercially reasonable terms. The proceeds of such a sale of the assets of
Issuer shall be treated as collections under the Sale and Servicing
Agreement and shall be distributed in accordance with Section 9.1(b)
thereof.
ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
OWNER TRUSTEES.
SECTION 10.1. Eligibility Requirements for Owner Trustee. Owner
Trustee shall at all times be a corporation (i) authorized to exercise
corporate trust powers, (ii) having a combined capital and surplus of at
least $50,000,000 and (iii) subject to supervision or examination by
Federal or state authorities. If such corporation shall publish reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time Owner Trustee
shall cease to be eligible in accordance with the provisions of this
Section, Owner Trustee shall resign immediately in the manner and with the
effect specified in Section 10.2. In addition, at all times Owner Trustee
or a co-trustee shall be a person that satisfies the requirements of
Section 3807(a) of the Business Trust Statute (the "Delaware Trustee").
SECTION 10.2. Resignation or Removal of Owner Trustee. Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to Administrative Agent. Upon receiving such
notice of resignation, Administrative Agent shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Owner Trustee and one
copy to the successor Owner Trustee. If no successor Owner Trustee shall
have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Owner Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee; provided, however, that such right to appoint or
to petition for the appointment of any such successor shall in no event
relieve the resigning Owner Trustee from any obligations otherwise imposed
on it under the Basic Documents until such successor has in fact assumed
such appointment.
If at any time Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.1 and shall fail to resign after written
request therefor by Administrative Agent, or if at any time Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent,
or a receiver of Owner Trustee or of its property shall be appointed, or
any public officer shall take charge or control of Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then Administrative Agent may remove Owner Trustee. If
Administrative Agent shall remove Owner Trustee under the authority of the
immediately preceding sentence, Administrative Agent shall promptly appoint
a successor Owner Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the outgoing Owner Trustee so
removed and one copy to the successor Owner Trustee and payment of all fees
owed to the outgoing Owner Trustee.
Any resignation or removal of Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.3 and payment of all fees and expenses
owed to the outgoing Owner Trustee and the filing of a certificate of
amendment to the Certificate of Trust if required by the Business Trust
Statute. Administrative Agent shall provide notice of such resignation or
removal of Owner Trustee to each of the Rating Agencies.
SECTION 10.3. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.2 shall execute, acknowledge and deliver
to Administrative Agent and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become
effective and such successor Owner Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like
effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of its fees and expenses deliver to the
successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and Administrative Agent and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things
as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties
and obligations.
No successor Owner Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Owner
Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Owner Trustee pursuant
to this Section, Administrative Agent shall mail notice of the successor of
such Owner Trustee to all Certificateholders, Indenture Trustee, the
Noteholders and the Rating Agencies. If Administrative Agent shall fail to
mail such notice within 10 days after acceptance of appointment by the
successor Owner Trustee, the successor Owner Trustee shall cause such
notice to be mailed at the expense of Administrative Agent.
SECTION 10.4. Merger or Consolidation of Owner Trustee. Any
corporation into which Owner 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 Owner Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of Owner Trustee, shall, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding, be the successor of Owner
Trustee hereunder; provided that such corporation shall be eligible
pursuant to Section 10.1; and provided further that Owner Trustee shall
mail notice of such merger or consolidation to the Rating Agencies not less
than fifteen days prior to the effective date thereof.
SECTION 10.5. Appointment of Co-Owner Trustee or Separate Owner
Trustee. Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Owner Trust Estate or any Financed Vehicle may at
the time be located, Administrative Agent and Owner Trustee acting jointly
shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by Owner Trustee to act as co-trustee,
jointly with Owner Trustee, or separate trustee or separate trustees, of
all or any part of the Owner Trust Estate, and to vest in such Person, in
such capacity, such title to Issuer, or any part thereof, and, subject to
the other provisions of this Section, such powers, duties, obligations,
rights and trusts as Administrative Agent and Owner Trustee may consider
necessary or desirable. If Administrative Agent shall not have joined in
such appointment within 15 days after the receipt by it of a request so to
do, Owner Trustee alone shall have the power to make such appointment. If
Delaware Trustee shall become incapable of acting, resign or be removed,
unless Owner Trustee is qualified to act as Delaware Trustee, a successor
co-trustee shall promptly be appointed in the manner specified in this
Section 10.5 to act as Delaware Trustee. No co-trustee or separate trustee
under this Agreement shall be required to meet the terms of eligibility as
a successor trustee pursuant to Section 10.1 and no notice of the
appointment of any co-trustee or separate trustee shall be required
pursuant to Section 10.3.
Each 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 Owner Trustee shall be conferred upon and exercised or
performed by Owner 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 Owner 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, Owner Trustee
shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the
holding of title to Issuer or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) Administrative Agent and Owner Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee
or co-trustee.
Any notice, request or other writing given to Owner Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article. 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 Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including
every provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, Owner Trustee. Each such
instrument shall be filed with Owner Trustee and a copy thereof given to
Administrative Agent.
Any separate trustee or co-trustee may at any time appoint Owner
Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect
of this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XI MISCELLANEOUS.
SECTION 11.1. Supplements and Amendments. (a) This Agreement may be
amended by Depositor and Owner Trustee, with prior written notice to the
Rating Agencies, without the consent of any of the Noteholders or the
Certificateholders:
(i) to cure any ambiguity or defect, to correct or
supplement any provisions in this Agreement or for the purpose
of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of
modifying in any manner the rights of the Noteholders or the
Certificateholders provided that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder or
Certificateholder.
(ii) to enable all or a portion of Issuer to qualify as a
partnership for federal income tax purposes under applicable
regulations on the classification of entities as partnerships or
corporations under the Code adopted as final regulations, and to
the extent such regulations eliminate or modify the need
therefor, to modify or eliminate such provisions relating to the
intended availability of partnership treatment of Issuer for
federal income tax purposes; it being a condition to any such
amendment that each Rating Agency shall have notified the
Depositor, the Servicer, Indenture Trustee and the Owner Trustee
in writing that the amendment will not result in a reduction or
withdrawal of the rating of any outstanding Notes or
Certificates with respect to which it is a Rating Agency;
(iii) (A) to add, modify or eliminate such provisions as
may be necessary or advisable in order to enable all or a
portion of Issuer to qualify as, and to permit an election to be
made to cause all or a portion of Issuer to be treated as, a
"financial asset securitization investment trust" as described
in the provisions of the "Small Business Job Protection Act of
1996," or to enable all or a portion of the Issuer to qualify
and an election to be made for similar treatment under such
comparable subsequent federal income tax provisions as may
ultimately be enacted into law, and (B) in connection with any
such election, to modify or eliminate existing provisions set
forth in this Agreement relating to the intended federal income
tax treatment of the Notes or Certificates and Issuer in the
absence of the election; it being a condition to any such
amendment that each Rating Agency shall have notified the
Depositor, the Servicer, Indenture Trustee and the Owner Trustee
in writing that the amendment will not result in a reduction or
withdrawal of the rating of any outstanding Notes or
Certificates with respect to which it is a Rating Agency; and
(iv) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable (a) the transfer to
Issuer of all or any portion of the Receivables to be
derecognized under GAAP by Depositor to Issuer, (b) Issuer to
avoid becoming a member of Seller's consolidated group under
GAAP or (c) the Depositor, any Seller Affiliate or any of their
Affiliates to otherwise comply with or obtain more favorable
treatment under any law or regulation or any accounting rule or
principle; it being a condition to any such amendment that each
Rating Agency shall have notified the Depositor, the Servicer,
Indenture Trustee and the Owner Trustee in writing that the
amendment will not result in a reduction or withdrawal of the
rating of any outstanding Notes or Certificates with respect to
which it is a Rating Agency.
(b) This Agreement may also be amended from time to time by Depositor
and Owner Trustee, with prior written notice to the Rating Agencies, with
the consent of the Holders of Notes evidencing not less than a majority of
the Outstanding Amount of the Notes and, to the extent affected thereby,
the consent of the Holders of Certificates evidencing not less than a
majority of the Certificate Balance for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders; provided that no such amendment
shall (a) increase or reduce in any manner the amount of, or accelerate or
delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (b) reduce the aforesaid
percentage of the Outstanding Amount of the Notes and the Certificate
Balance required to consent to any such amendment, without the consent of
the Holders of all the outstanding Notes and Holders of all outstanding
Certificates.
(c) Promptly after the execution of any such amendment or consent,
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, Indenture Trustee and each
of the Rating Agencies.
(d) It shall not be necessary for the consent of Certificateholders,
the Noteholders or Indenture Trustee pursuant to this Section to approve
the particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner
of obtaining such consents (and any other consents of Certificateholders
provided for in this Agreement or in any other Basic Document) and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as Owner Trustee may
prescribe.
(e) Promptly after the execution of any amendment to the Certificate
of the Trust, Owner Trustee shall cause the filing of such amendment with
the Secretary of State.
(f) Prior to the execution of any amendment to this Agreement or the
Certificate of the Trust, Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and that all
conditions precedent to the execution and delivery of such amendment have
been satisfied. Owner Trustee may, but shall not be obligated to, enter
into any such amendment which affects Owner Trustee's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 11.2. No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to
any part of the Owner Trust Estate. The Certificateholders shall be
entitled to receive distributions with respect to their undivided ownership
interest therein only in accordance with Articles V and IX. No transfer, by
operation of law or otherwise, of any right, title or interest of the
Certificateholders to and in their ownership interest in the Owner Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Owner Trust Estate.
SECTION 11.3. Limitations on Rights of Others. Except for Section
2.7, the provisions of this Agreement are solely for the benefit of Owner
Trustee, Depositor, Administrative Agent, Certificateholders, Servicer and,
to the extent expressly provided herein, Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
SECTION 11.4. Notices. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt personally delivered, delivered by overnight
courier or mailed certified mail, return receipt requested and shall be
deemed to have been duly given upon receipt, if to Owner Trustee, addressed
to the Corporate Trust Office; if to Depositor, addressed to Norwest
Center, Sixth and Marquette, Minneapolis, Minnesota 55479-1026, Attention:
Corporate Secretary; or, as to each party, at such other address as shall
be designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at
the address of such Holder as shown in the Certificate Register. Any notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.5. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
SECTION 11.6. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 11.7. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of,
Depositor, Owner Trustee and its successors and each Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.8. No Petition. Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement,
each Certificateholder or Certificate Owner, by accepting a Certificate,
and Indenture Trustee and each Noteholder or Note Owner by accepting the
benefits of this Agreement, hereby covenants and agrees that they will not
at any time institute against Depositor or the Trust, or join in any
institution against Depositor or the Trust of any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the
Certificates, the Notes, this Agreement or any of the Basic Documents.
SECTION 11.9. No Recourse. Each Certificateholder or Certificate
Owner by accepting a Certificate acknowledges that such Certificateholder's
or Certificate Owner's Certificates represent beneficial interests in
Issuer only and do not represent interests in or obligations of Seller,
Servicer, Administrative Agent, Depositor, Owner Trustee, Indenture Trustee
or any Affiliate thereof and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated in this
Agreement, the Certificates or the Basic Documents.
SECTION 11.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12. Certificate Transfer Restrictions. The Certificates
may not be acquired by or for the account of or with assets of (i) an
employee benefit plan (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974 ("ERISA")) that is subject to the
provisions of Title 1 of ERISA, (ii) a plan described in Section 4975(e)(1)
of the Code, or (iii) any entity whose underlying assets include plan
assets by reason of a plan's investment in the entity (each, a "Benefit
Plan"). By accepting and holding a Certificate, the Holder thereof shall be
deemed to have represented and warranted that it is not a Benefit Plan and
is not purchasing Certificates on behalf of a Benefit Plan.
SECTION 11.13. Servicer. Servicer is authorized to execute on behalf
of Issuer all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of Issuer to prepare, file or deliver
pursuant to the Basic Documents. Upon written request, Owner Trustee shall
execute and deliver to Servicer a power of attorney appointing Servicer as
Issuer's agent and attorney-in-fact to execute all such documents, reports,
filings, instruments, certificates and opinions.
SECTION 11.14. Maintenance of Net Worth. For so long as any Notes or
Certificates shall remain outstanding, Depositor shall maintain its net
worth (exclusive of its interest in Issuer) at least equal to $5,320,000.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized as of the day and year first above written.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Emmett R. Harmon
------------------------------
Name: Emmett R. Harmon
Title: Vice President
NORWEST AUTO RECEIVABLES
CORPORATION, as Depositor
By: /s/ Joseph Ernst
------------------------------
Name: Joseph Ernst
Title: Vice President
Acknowledged and Accepted
with respect to Section 9.2
of this Trust Agreement:
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By: /s/ James J. Fevola
- --------------------------
Name: James J. Fevola
Title: Second Vice President
<PAGE>
EXHIBIT A
NUMBER $
R- CUSIP NO. 669377 AF 0
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS CERTIFICATE IS DISTRIBUTABLE IN INSTALLMENTS AS
SET FORTH IN THE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF
THIS CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.]
[THIS CERTIFICATE IS NOT TRANSFERABLE]<F7>
NORWEST AUTO TRUST 1996-A
6.300% ASSET BACKED CERTIFICATE
evidencing a beneficial ownership interest in certain distributions of
Issuer, as defined below, the property of which includes a pool of Motor
Vehicle Loans sold to Issuer by Norwest Auto Receivables Corporation.
(This Certificate does not represent an interest in or obligation of
Norwest Auto Receivables Corporation or any of its Affiliates, except to
the extent described below.)
<F7> To be inserted on the Certificate to be held by Depositor.
<PAGE>
THIS CERTIFIES THAT ____________________________ is the registered owner of
__________________________ DOLLARS nonassessable, fully-paid, beneficial
ownership interest in certain distributions of Norwest Auto Trust 1996-A
(the "Issuer") formed by Norwest Auto Receivables Corporation, a Delaware
corporation ("Seller"). This Certificate has a Certificate Rate of 6.300%
per annum.
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
_______________________ _________________________
or
as Owner Trustee as Owner Trustee
By____________________________
Authenticating Agent
By_____________________
Issuer was created pursuant to a Trust Agreement dated as of November
13, 1996 (the "Trust Agreement"), between Seller and Wilmington Trust
Company, as owner trustee ("Owner Trustee"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not
otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in Appendix X to the Sale and Servicing Agreement
among Issuer, Norwest Auto Receivables Corporation, as Seller, The Chase
Manhatten Bank, as Indenture Trustee, Wilmington Trust Company, as Owner
Trustee, and Norwest Bank Minnesota, N.A., as Servicer, dated as of
November 13, 1996, as the same may be amended or supplemented from time to
time.
This Certificate is one of the duly authorized Certificates designated
as "6.300% Asset Backed Certificates" (herein called the "Certificates").
Also issued under the Indenture dated as of November 13, 1996, between
Issuer and The Chase Manhattan Bank, as indenture trustee, are four classes
of Notes designated as "Class A-1 5.465% Asset Backed Notes" (the "Class
A-1 Notes"), "Class A-2 5.800% Asset Backed Notes" (the "Class A-2 Notes"),
"Class A-3 5.900% Asset Backed Notes" (the "Class A-3 Notes") and "Class
A-4 6.10% Asset Backed Notes" (the "Class A-4 Notes" and, together with the
Class A-1 Notes, Class A-2 Notes, and Class A-3 Notes, the "Notes"). The
Holder of this Certificate shall be entitled to receive distributions on
each Distribution Date in an amount equal to the result obtained by
multiplying (i) a fraction the numerator of which is the initial
Certificate Balance of this Certificate and the denominator of which is
$34,606,052.70 (the "Fraction") by (ii) the aggregate amount, if any,
payable from the Certificate Distribution Amount pursuant to Section 5.2 of
the Trust Agreement. Issuer will distribute interest on this Certificate
on each Distribution Date until the initial Certificate Balance of the
Certificate is paid or made available for payment in an amount equal to the
product of the Certificateholders' Interest Distributable Amount for the
related Transfer Date multiplied by the Fraction, subject to the
limitations contained in Section 5.2 of the Trust Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the holder of
this Certificate by virtue of the acceptance hereof assents and by which
such holder is bound.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to
the rights of the Noteholders as described in the Sale and Servicing
Agreement, the Indenture and the Trust Agreement, as applicable.
It is the intent of Seller, Servicer, Depositor and Certificateholders
that, for purposes of Federal income taxes, Issuer will be treated as a
partnership and the Certificateholders (including Depositor) will be
treated as partners in that partnership. Depositor and the other
Certificateholders by acceptance of a Certificate, agree to treat, and to
take no action inconsistent with the treatment of, the Certificates for
such tax purposes as partnership interests in the Trust.
Each Certificateholder and Certificate Owner, by its acceptance of a
Certificate, covenants and agrees that such Certificateholder and
Certificate Owner will not at any time institute against Depositor, or join
in any institution against Depositor of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States Federal or state bankruptcy or similar law in
connection with any obligations relating to the Certificates, the Notes,
the Trust Agreement or any of the Basic Documents.
The Certificates do not represent an obligation of, or an interest in,
Seller, Servicer, Administrator, Administrative Agent Depositor, Owner
Trustee or any Affiliates of any of them and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated herein or in the Trust Agreement, the Indenture or the Basic
Documents.
The Certificates may not be acquired by or for the account of or with
the assets of (a) an employee benefit plan (as defined in Section 3(3) of
ERISA) that is subject to the provisions of Title 1 of ERISA, (b) a plan
described in Section 4975(e)(1) of the Code or (c) any entity whose
underlying assets include plan assets by reason of a plan's investment in
the entity (each, a "Benefit Plan"). By accepting and holding this
Certificate, the Holder hereof shall be deemed to have represented and
warranted that it is not a Benefit Plan and is not purchasing on behalf of
a Benefit Plan.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of Owner Trustee, by manual signature,
this Certificate shall not entitle the holder hereof to any benefit under
the Trust Agreement or the Sale and Servicing Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
<PAGE>
IN WITNESS WHEREOF, Owner Trustee, on behalf of Issuer and not in its
individual capacity, has caused this Certificate to be duly executed.
NORWEST AUTO TRUST 1996-A
By: WILMINGTON TRUST COMPANY
not in its individual capacity,
but solely as Owner Trustee
Dated: November 13, 1996 By:___________________________________
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
______________________________________________________________________________
(Please print or type name and address, including postal zip
code, of assignee)
______________________________________________________________________________
the within Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
____________________________________________________________ Attorney to
transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:
________________________*
Signature Guaranteed:
_________________________*
____________________________
* NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within
Certificate in every particular, without alteration, enlargement or
any change whatever. Such signature must be guaranteed by a member
firm of the New York Stock Exchange or a commercial bank or trust
company.
<PAGE>
EXHIBIT B
[FORM OF]
CERTIFICATE OF TRUST OF
NORWEST AUTO TRUST 1996-A
THIS Certificate of Trust of Norwest Auto Trust 1996-A (the "Trust"),
dated as of November __, 1996, is being duly executed and filed by
Wilmington Trust Company, a Delaware banking corporation, as trustee, to
form a business trust under the Delaware Business Trust Act (12 Del. Code,
Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is NORWEST
AUTO TRUST 1996-A.
2. Delaware Trustee. The name and business address of the trustee
of the Trust resident in the State of Delaware is Wilmington Trust Company,
Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890-0001, Attention: Corporate Trust Administration.
3. This Certificate of Trust will be effective November 13, 1996.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY, not in
its individual capacity, but solely
as owner trustee of the Trust.
By:____________________________
Name:
Title:
<PAGE>
EXHIBIT 99.1
=============================================================================
SALE AND SERVICING
AGREEMENT
between
NORWEST AUTO TRUST 1996-A
as
Issuer
NORWEST AUTO RECEIVABLES CORPORATION,
as
Seller
NORWEST BANK MINNESOTA, N.A.,
as Servicer
THE CHASE MANHATTAN BANK
as Indenture Trustee
Dated as of November 13, 1996
==============================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I. DEFINITIONS.............................................. 1
SECTION 1.1. Definitions...................................... 1
SECTION 1.2. Other Interpretive Provisions.................... 1
ARTICLE II. CONVEYANCE OF RECEIVABLES............................... 2
SECTION 2.1. Conveyance of Receivables........................ 2
ARTICLE III. THE RECEIVABLES........................................ 3
SECTION 3.1. Representations and Warranties as to Each
Receivable..................................... 3
SECTION 3.2. Representations and Warranties as to the
Receivables in the Aggregate and Actions
of Seller...................................... 7
SECTION 3.3. Repurchase upon Breach........................... 8
SECTION 3.4. Custodian of Receivable Files.................... 8
ARTICLE IV. ADMINISTRATION AND SERVICING OF RECEIVABLES............. 11
SECTION 4.1. Duties of Servicer............................... 11
SECTION 4.2. Collection of Receivable Payments................ 13
SECTION 4.3. Realization upon Receivables..................... 13
SECTION 4.4. Physical Damage Insurance........................ 14
SECTION 4.5. Maintenance of Security Interests in Financed
Vehicles....................................... 16
SECTION 4.6. Covenants of Servicer............................ 16
SECTION 4.7. Purchase by Servicer upon Breach................. 17
SECTION 4.8. Servicing Fee.................................... 17
SECTION 4.9. Servicer's Report................................ 18
SECTION 4.10. Annual Statement as to Compliance; Notice of
Default....................................... 18
SECTION 4.11. Annual Independent Certified Public Accountants'
Report....................................... 19
SECTION 4.12. Access to Certain Documentation and Information
Regarding Receivables.......................... 19
SECTION 4.13. Servicer Expenses............................... 19
ARTICLE V. DISTRIBUTION; RESERVE ACCOUNT; STATEMENTS
TO CERTIFICATEHOLDERS AND NOTEHOLDERS................. 20
SECTION 5.1. Establishment of Trust Accounts.................. 20
SECTION 5.2. Collections...................................... 22
SECTION 5.3. Advances......................................... 23
SECTION 5.4. Additional Deposits.............................. 24
SECTION 5.5. Distributions.................................... 24
SECTION 5.6. Statements to Certificateholders and Noteholders. 25
SECTION 5.7. Net Deposits..................................... 27
SECTION 5.8. Reserve Account.................................. 27
ARTICLE VI. SELLER.................................................. 31
SECTION 6.1. Representations of Seller........................ 31
SECTION 6.2. Continued Existence.............................. 33
SECTION 6.3. Liability of Seller; Indemnities................. 33
SECTION 6.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller......................... 34
SECTION 6.5. Limitation on Liability of Seller and Others..... 35
ARTICLE VII. SERVICER............................................... 36
SECTION 7.1. Representations of Servicer...................... 36
SECTION 7.2. Indemnities of Servicer.......................... 38
SECTION 7.3. Merger or Consolidation of, or Assumption of
the Obligations of, Servicer................... 39
SECTION 7.4. Limitation on Liability of Servicer and Others... 40
SECTION 7.5. Norwest Bank Not To Resign as Servicer........... 40
SECTION 7.6. Existence........................................ 41
SECTION 7.7. Servicer May Own Notes or Certificates........... 41
ARTICLE VIII. DEFAULT............................................... 41
SECTION 8.1. Servicer Termination Event....................... 41
SECTION 8.2. Appointment of Successor......................... 43
SECTION 8.3. Payment of Servicing Fee......................... 44
SECTION 8.4. Notification to Noteholders and
Certificateholders............................. 44
SECTION 8.5. Waiver of Past Defaults.......................... 44
ARTICLE IX. TERMINATION............................................. 45
SECTION 9.1. Optional Purchase of All Receivables............. 45
ARTICLE X. MISCELLANEOUS PROVISIONS................................. 46
SECTION 10.1. Amendment....................................... 46
SECTION 10.2. Protection of Title to Trust Property........... 48
SECTION 10.3. Litigation and Indemnities...................... 51
SECTION 10.4. Notices......................................... 51
SECTION 10.5. Assignment...................................... 52
SECTION 10.6. Limitations on Rights of Others................. 52
SECTION 10.7. Severability.................................... 52
SECTION 10.8. Separate Counterparts........................... 52
SECTION 10.9. Headings........................................ 52
SECTION 10.10. Governing Law.................................. 52
SECTION 10.11. Assignment to Indenture Trustee................ 53
SECTION 10.12. Nonpetition Covenant........................... 53
SECTION 10.13. Limitation of Liability of Owner Trustee and
Indenture Trustee............................ 53
SECTION 10.14. Further Assurances.............................. 54
SECTION 10.15. No Waiver; Cumulative Remedies................. 54
SCHEDULES
Schedule A - Location of Receivables
EXHIBITS
Exhibit A - Form of Servicer's Report
APPENDIX
Appendix X - Definitions
<PAGE>
SALE AND SERVICING AGREEMENT dated as of November, 13, 1996 (this
"Agreement") among NORWEST AUTO TRUST 1996-A, a Delaware business trust
("Issuer"), NORWEST AUTO RECEIVABLES CORPORATION, a Delaware corporation
(in its capacity as seller, "Seller"), NORWEST BANK MINNESOTA, N.A., (in
its capacity as servicer, "Servicer") and THE CHASE MANHATTAN BANK, a New
York banking corporation (in its capacity as indenture trustee, "Indenture
Trustee").
WHEREAS, Issuer desires to purchase from Seller a portfolio of
receivables arising in connection with Motor Vehicle Loans purchased or
originated by the Seller Affiliates and sold to Seller under the Purchase
Agreements;
WHEREAS, Seller is willing to sell such receivables to Issuer; and
WHEREAS, Servicer is willing to service such receivables.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS.
SECTION 1.1. Definitions. Capitalized terms are used in this
Agreement as defined in Appendix X.
SECTION 1.2. Other Interpretive Provisions. For purposes of this
Agreement, unless the context otherwise requires: (a) accounting terms not
otherwise defined in this Agreement, and accounting terms partly defined in
this Agreement to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles; (b)
terms defined in Article 9 of the UCC and not otherwise defined in this
Agreement are used as defined in that Article; (c) the words "hereof,"
"herein" and "hereunder" and words of similar import refer to this
Agreement as a whole and not to any particular provision of this Agreement;
(d) references to any Article, Section, Schedule or Exhibit are references
to Articles, Sections, Schedules and Exhibits in or to this Agreement and
references to any paragraph, subsection, clause or other subdivision within
any Section or definition refer to such paragraph, subsection, clause or
other subdivision of such Section or definition; (e) the term "including"
means "including without limitation"; (f) except as otherwise expressly
provided herein, references to any law or regulation refer to that law or
regulation as amended from time to time and include any successor law or
regulation; (g) references to any Person include that Person's successors
and assigns; and (h) headings are for purposes of reference only and shall
not otherwise affect the meaning or interpretation of any provision hereof.
ARTICLE II. CONVEYANCE OF RECEIVABLES.
SECTION 2.1. Conveyance of Receivables. In consideration of Issuer's
delivery to, or upon the order of, Seller of Notes and Certificates, in
aggregate principal amounts equal to the initial principal amount of the
Notes and the initial Certificate Balance, respectively, Seller does hereby
sell, transfer, assign, set over and otherwise convey to Issuer, without
recourse, subject to the obligations herein (collectively the "Trust
Property"):
(a) all right, title and interest of Seller in and to the
Receivables, and all moneys received thereon after the Cutoff Date;
(b) all right, title and interest of Seller in the security
interests in the Financed Vehicles granted by Obligors pursuant to the
Receivables and any other interest of Seller in the Financed Vehicles
and any other property that shall secure the Receivables;
(c) the interest of Seller in any proceeds with respect to the
Receivables from claims on any Insurance Policies covering Financed
Vehicles or the Obligors or from claims under any lender's single
interest insurance policy naming any Seller Affiliate as an insured;
(d) rebates of premiums and other amounts relating to Insurance
Policies (including any force placed Physical Damage Insurance Policy)
and other items financed under the Receivables, in each case, to the
extent the Servicer would, in accordance with its customary practices,
apply such amounts to the Principal Balance of the related Receivable;
(e) the interest of Seller in any proceeds from (i) any
Receivable repurchased by a Dealer pursuant to a Dealer Agreement, as
a result of a breach of representation or warranty in the related
Dealer Agreement, (ii) a default by an Obligor resulting in the
repossession of the Financed Vehicle under the applicable Motor
Vehicle Loan or (iii) any Dealer Recourse or other rights of Seller
Affiliates under Dealer Agreements (other than rights to rebates of
unamortized premiums paid or payable to Dealers) relating to the
Receivables;
(f) all right, title and interest in all funds on deposit from
time to time in the Certificate Distribution Account and the Trust
Accounts, and in all investments and proceeds thereof (but excluding
all investment income thereon);
(g) all right, title and interest of Seller under each Purchase
Agreement, including the right of Seller to cause a Seller Affiliate
to repurchase Receivables from Seller;
(h) all right, title and interest of Seller in any instrument
or document relating to the Receivables; and
(i) the proceeds of any and all of the foregoing.
The sale, transfer, assignment, setting over and conveyance made
hereunder shall not constitute and is not intended to result in an
assumption by Issuer of any obligation of any Seller Affiliates to the
Obligors, the Dealers or any other Person in connection with the
Receivables and the other assets and properties conveyed hereunder or any
agreement, document or instrument related thereto.
ARTICLE III. THE RECEIVABLES.
SECTION 3.1. Representations and Warranties as to Each Receivable.
Seller hereby makes the following representations and warranties as to each
Receivable conveyed by it to Issuer hereunder on which Issuer shall rely in
acquiring the Receivables. Unless otherwise indicated, such representations
and warranties shall speak as of the Closing Date, but shall survive the
sale, transfer and assignment of the Receivables to Issuer and the pledge
thereof to Indenture Trustee pursuant to the Indenture.
(a) Characteristics of Receivables. The Receivable has been
fully and properly executed by the parties thereto and (i) has been
originated by a Dealer in the ordinary course of such Dealer's
business, (ii) such Receivable requires physical damage insurance to
be maintained on the related Financed Vehicle, (iii) is secured by a
valid, subsisting, binding and enforceable first priority security
interest in favor of a Seller Affiliate in the Financed Vehicle
(subject to administrative delays and clerical errors on the part of
the applicable government agency and to any statutory or other lien
arising by operation of law after the Closing Date which is prior to
such security interest), which security interest is assignable
together with such Receivable, and has been so assigned to Seller, and
subsequently assigned by Seller to Indenture Trustee, (iv) contains
customary and enforceable provisions such that the rights and remedies
of the holder thereof are adequate for realization against the
collateral of the benefits of the security, (v) provides for interest
at the Contract Rate specified in the Schedule of Receivables, (vi)
was originated in the United States and (vii) constitutes "chattel
paper" as defined in the UCC.
(b) Individual Characteristics. The Receivables have the
following individual characteristics as of the Cutoff Date: (i) each
Receivable is secured by either a new or used automobile or light duty
truck; (ii) each Receivable has a Contract Rate of at least 7.00% and
not more than 22.00%; (iii) each Receivable had a remaining number of
scheduled payments, as of the Cutoff Date, of not less than 13 and not
more than 72; (iv) each Receivable had a Principal Balance at
origination of not less than $500.00 and not more than $71,376.00 and
an Initial Principal Balance of not less than $508.79 nor more than
$57,051.06; (v) no Receivable was more than 30 days past due as of the
Cutoff Date; (vi) no Financed Vehicle had been repossessed as of the
Cutoff Date; (vii) no Receivable is subject to a force-placed physical
damage insurance policy on the related Financed Vehicle; (viii) each
Receivable is a Simple Interest Receivable; and (ix) the Dealer of the
Financed Vehicle has no participation in, or other right to receive,
any proceeds of the Receivable. The Receivables were selected using
selection procedures that were not intended by any Seller Affiliate or
Seller to be adverse to the Holders.
(c) Schedule of Receivables. The information set forth in the
Schedule of Receivables, including (without limitation) the account
number, the Initial Principal Balance, the maturity date and the
Contract Rate, was true and correct as of the close of business on the
Cutoff Date.
(d) Compliance with Law. The Receivable complied at the time
it was originated or made, and will comply as of the Closing Date, in
all material respects with all requirements of applicable federal,
state and local laws, and regulations thereunder, including, to the
extent applicable, usury laws, the Federal Truth in Lending Act, the
Equal Credit Opportunity Act, the Fair Credit Billing Act, the Fair
Credit Reporting Act, the Federal Trade Commission Act, the
Magnuson-Moss Warranty Act, the Fair Debt Collection Practices Act,
Federal Reserve Board Regulations B and Z and any other consumer
credit, consumer protection, equal opportunity and disclosure laws.
(e) Binding Obligation. The Receivable constitutes the
genuine, legal, valid and binding payment obligation in writing of the
Obligor, enforceable in all material respects by the holder thereof in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, or other similar laws affecting the
enforcement of creditors' rights generally, and the Receivable is not
subject to any right of rescission, setoff, counterclaim or defense,
including the defense of usury.
(f) Lien in Force. Neither Seller nor any Seller Affiliate
has taken any action which would have the effect of releasing the
related Financed Vehicle from the Lien granted by the Receivable in
whole or in part.
(g) No Amendment or Waiver. No material provision of the
Receivable has been amended, waived, altered or modified in any
respect, except such waivers as would be permitted under this
Agreement, and no amendment, waiver, alteration or modification causes
such Receivable not to conform to the other representations or
warranties contained in this Section.
(h) No Liens. There are no Liens or claims, including Liens
for work, labor, materials or unpaid state or federal taxes, relating
to the Financed Vehicle securing the Receivable, that are or may be
prior to or equal to the Lien granted by the Receivable.
(i) No Default. Except for payment delinquencies continuing
for a period of not more than 30 days as of the Cutoff Date, to the
knowledge of Seller, no default, breach, violation or event permitting
acceleration under the terms of the Receivable exists and no
continuing condition that with notice or lapse of time, or both, would
constitute a default, breach, violation or event permitting
acceleration under the terms of the Receivable has arisen.
(j) Insurance. The Receivable requires the Obligor to insure
the Financed Vehicle under a Physical Damage Insurance Policy, pay the
premiums for such insurance and keep such insurance in full force and
effect.
(k) Good Title. It is the intention of Seller that the
transfer and assignment herein contemplated constitute a sale of the
Receivables from Seller to Issuer and that the beneficial interest in
and title to the Receivables not be part of Seller's estate in the
event of the filing of a bankruptcy petition by or against Seller
under any bankruptcy law. No Receivable has been sold, transferred,
assigned, or pledged by Seller to any Person other than Issuer.
Immediately prior to the transfer and assignment herein contemplated,
Seller had good and marketable title to the Receivable free and clear
of any Lien and had full right and power to transfer and assign the
Receivable to Issuer and immediately upon the transfer and assignment
of the Receivable to Issuer, Issuer shall have good and marketable
title to the Receivable, free and clear of any Lien; and Issuer's
interest in the Receivable resulting from the transfer has been
perfected under the UCC.
(l) Obligations. Each Seller Affiliate has duly fulfilled all
obligations on its part to be fulfilled under, or in connection with,
the Receivable.
(m) Possession. There is only one original executed
Receivable, and immediately prior to the Closing Date, the applicable
Seller Affiliate will have possession of such original executed
Receivable.
(n) No Government Obligor. The Obligor on the Receivable is
not the United States of America or any state thereof or any local
government, or any agency, department, political subdivision or
instrumentality of the United States of America or any state thereof
or any local government.
(o) Marking Records. By the Closing Date, Seller shall have
caused the portions of Seller's and each Seller Affiliate's electronic
master record of Motor Vehicle Loans relating to the Receivables to be
clearly and unambiguously marked to show that the Receivable is owned
by Issuer in accordance with the terms of this Agreement.
(p) No Assignment. As of the Closing Date, Seller shall not
have taken any action to convey any right to any Person that would
result in such Person having a right to payments received under the
Insurance Policies or Dealer Agreements, or payments due under
Receivable, that is senior to, or equal with, that of Issuer.
(q) Lawful Assignment. The Receivable has not been originated
in, and is not subject to the laws of, any jurisdiction under which
the sale, transfer or assignment of such Receivable hereunder or
pursuant to transfers of the Notes or Certificates are unlawful, void
or voidable. Neither Seller nor any Seller Affiliate has entered into
any agreement with any Obligor that prohibits, restricts or conditions
the assignment of any portion of the Receivables.
(r) Dealer Agreements. A Dealer Agreement for each Receivable
is in effect whereby the Dealer warrants title to the Motor Vehicle
and indemnifies the Seller Affiliate that is a party to said Dealer
Agreement against the unenforceability of each Receivable sold
thereunder, and the rights of such Seller Affiliate thereunder, with
regard to the Receivable sold hereunder, have been validly assigned to
and are enforceable against the Dealer by the Seller and then to the
Trust, along with any Dealer Recourse.
(s) Composition of Receivable. No Receivable has a Principal
Balance which includes capitalized interest or late charges.
(t) Database File. The information included in the database
file delivered pursuant to Section 4.9(b) is accurate and complete in
all material respects.
SECTION 3.2. Representations and Warranties as to the Receivables in
the Aggregate and Actions of Seller. Seller hereby makes the following
representations and warranties as to the Receivables conveyed by it to
Issuer hereunder on which Issuer shall rely in acquiring the Receivables.
Unless otherwise indicated, such representations and warranties shall speak
as of the Closing Date, but shall survive the sale, transfer and assignment
of the Receivables to Issuer and the pledge thereof to Indenture Trustee
pursuant to the Indenture.
(a) Amounts. The Initial Pool Balance was $1,064,746,052.70
(b) Aggregate Characteristics. The Receivables had the
following characteristics in the aggregate as of the Cutoff Date: (i)
approximately 47.08% of the Initial Pool Balance was attributable to
purchases of new Financed Vehicles, and approximately 52.92% of the
Initial Pool Balance was attributable to purchases of used Financed
Vehicles; (ii) approximately 44.32% of the Initial Pool Balance was
attributable to Receivables the mailing addresses of the Obligors on
which were at the time of origination located in the State of
Minnesota, 8.59% in the State of Iowa, 13.95% in the State of
Nebraska, 7.89% in the State of Wisconsin, 7.21% in the State of
Indiana, 6.65% in the State of North Dakota, and 6.07% in the State of
South Dakota, and no other state accounts for more than 5.0% of the
Initial Pool Balance; (iii) the weighted average Contract Rate of the
Receivables was 9.79%; (iv) there are 118,295 Receivables being
conveyed by Seller to Issuer; (v) the average Initial Principal
Balance of the Receivables was $9.000.77; and (vi) the weighted
average original number of scheduled payments and weighted average
remaining number of scheduled payments of the Receivables were 56.24
and 42.77, respectively.
SECTION 3.3. Repurchase upon Breach. Seller, Servicer or Owner
Trustee, as the case may be, shall inform the other parties to this
Agreement and Indenture Trustee promptly, in writing, upon the discovery of
any breach or failure to be true of the representations or warranties made
by Seller in Section 3.1, provided that the failure to give such notice
shall not affect any obligation of Seller. If the breach or failure shall
not have been cured by the last day of the Collection Period which includes
the 60th day (or if Seller elects, the 30th day) after the date on which
Seller becomes aware of, or receives written notice from Owner Trustee,
Indenture Trustee or Servicer of, such breach or failure, and such breach
or failure materially and adversely affects the interests of Issuer and the
Holders in any Receivable, Seller shall repurchase each such Receivable
from Issuer as of such last day of such Collection Period at a purchase
price equal to the Purchase Amount for such Receivable as of such last day
of such Collection Period. Notwithstanding the foregoing, any such breach
or failure with respect to the representations and warranties contained in
Section 3.1 will not be deemed to have such a material and adverse effect
with respect to a Receivable if the facts resulting in such breach or
failure do not affect the ability of Issuer to receive and retain payment
in full on such Receivable. In consideration of the purchase of a
Receivable hereunder, Seller shall remit the Purchase Amount of such
Receivable, no later than the close of business on the next Deposit Date,
in the manner specified in Section 5.4. The sole remedy of Issuer, the
Owner Trustee, the Indenture Trustee or the Holders with respect to a
breach or failure to be true of the warranties made by Seller pursuant to
Section 3.1 shall be to require Seller to repurchase Receivables pursuant
to this Section. If Seller fails to timely remit the Purchase Amount of any
Receivable that the Seller is required to repurchase pursuant to this
Section, upon receipt of notice by Norwest Corporation from Servicer, Owner
Trustee or Indenture Trustee, or after discovery of such failure, Norwest
Corporation shall remit or cause to be remitted such Purchase Amount, no
later than the close of business on the next Deposit Date, in the manner
specified in Section 5.4.
SECTION 3.4. Custodian of Receivable Files. (a) Custody. To assure
uniform quality in servicing the Receivables and to reduce administrative
costs, Issuer, upon the execution and delivery of this Agreement, revocably
appoints Custodian, as agent, and Custodian accepts such appointment, to
act as agent on behalf of Issuer to maintain custody of the following
documents or instruments, which are hereby constructively delivered to
Issuer with respect to each Receivable (collectively, a "Receivable File"):
(i) the fully executed original of the Receivable;
(ii) the original credit application, fully executed by the
Obligor;
(iii) the original certificate of title, or such other
documents as the applicable Seller Affiliate, as appropriate, keeps on
file, in accordance with its customary procedures, evidencing the
security interest of such Seller Affiliate in the Financed Vehicle;
and
(iv) any and all other documents or electronic records that
Seller, any Seller Affiliate or Servicer, as the case may be, keeps on
file, in accordance with its customary procedures, relating to the
Receivable, any Insurance Policies, the Obligor or the Financed
Vehicle.
(b) Safekeeping. Servicer, in its capacity as Custodian, shall hold
the Receivable Files as agent on behalf of Issuer and maintain such
accurate and complete accounts, records and computer systems pertaining to
each Receivable as shall enable Servicer and Issuer to comply with the
terms and provisions of this Agreement applicable to them. In performing
its duties as Custodian hereunder, Custodian shall act with reasonable
care, exercising the degree of skill, attention and care that Servicer
exercises with respect to receivable files relating to other similar motor
vehicle loans owned and/or serviced by Custodian and that is consistent
with industry standards. Custodian shall maintain the Receivable Files in
such a manner and in accordance with its customary business practices as
shall enable Owner Trustee to reasonably verify, if Owner Trustee so
elects, the accuracy of the record keeping of Servicer. Servicer shall
promptly report to Owner Trustee any failure on its part to hold the
Receivable Files and maintain its accounts, records and computer systems as
herein provided, and promptly take appropriate action to remedy any such
failure. Custodian hereby acknowledges receipt of the Receivable File for
each Receivable listed on the Schedule of Receivables. Nothing herein shall
be deemed to require Issuer, Owner Trustee or Indenture Trustee to verify
the accuracy of the record keeping of the Servicer.
(c) Maintenance of and Access to Records. Custodian shall maintain
each Receivable File at the location specified in Schedule A to this
Agreement, or at such other office of Custodian within the United States
(or, in the case of any successor Custodian, within the State in which its
principal place of business is located) as shall be specified to Issuer by
30 days' prior written notice. At the reasonable direction of the Owner
Trustee, Custodian shall make available to Owner Trustee, Indenture Trustee
and their respective agents (or, when requested in writing by Owner Trustee
or Indenture Trustee, their respective attorneys or auditors) the
Receivable Files and the related accounts, records and computer systems
maintained by Custodian at such times during the normal business hours of
Custodian for purposes of inspecting, auditing or making copies of
abstracts of the same.
(d) Release of Documents. Upon written instructions from Indenture
Trustee (or, if no Notes are then Outstanding, Owner Trustee), Custodian
shall release any document in the Receivable Files to Indenture Trustee or
Owner Trustee or its respective agent or designee, as the case may be, at
such place or places as Indenture Trustee or Owner Trustee may designate,
as soon thereafter as is practicable. Any document so released shall be
handled by Indenture Trustee or Owner Trustee with due care and returned to
Custodian for safekeeping as soon as Indenture Trustee or Owner Trustee or
its respective agent or designee, as the case may be, shall have no further
need therefor.
(e) Title to Receivables. Custodian agrees that, in respect of any
Receivable File held by Custodian hereunder, Custodian will not at any time
have or in any way attempt to assert any interest in such Receivable File
or the related Receivable, other than solely for the purpose of collecting
or enforcing the Receivable for the benefit of Issuer and that the entire
equitable interest in such Receivable and the related Receivable File shall
at all times be vested in Issuer.
(f) Instructions; Authority to Act. Custodian shall be deemed to
have received proper instructions with respect to the Receivable Files upon
its receipt of written instructions signed by an Authorized Officer of
Indenture Trustee or Owner Trustee, as applicable. A certified copy of
excerpts of certain resolutions of the Board of Directors of Indenture
Trustee or Owner Trustee, as applicable, shall constitute conclusive
evidence of the authority of any such Authorized Officer to act and shall
be considered in full force and effect until receipt by Custodian of
written notice to the contrary given by Indenture Trustee or Owner Trustee,
as applicable.
(g) Custodian's Indemnification. Subject to Section 10.3, Custodian
shall indemnify and hold harmless Issuer, Owner Trustee and Indenture
Trustee, and each of their officers, directors, employees and agents and
the Holders from and against any and all liabilities, obligations, losses,
compensatory damages, payments, costs or expenses (including legal fees if
any) of any kind whatsoever that may be imposed on, incurred or asserted
against Issuer, Owner Trustee, Indenture Trustee or the Holders as the
result of the gross negligence or willful misconduct of Custodian relating
to the maintenance and custody of the Receivable Files; provided that
Custodian shall not be liable hereunder to the extent that such
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses result from the willful misfeasance, bad faith or negligence of
Owner Trustee or Indenture Trustee.
(h) Effective Period and Termination. Servicer's appointment as
Custodian shall become effective as of the Cutoff Date and shall continue
in full force and effect until terminated pursuant to this subsection (h).
If Servicer shall resign as Servicer in accordance with Section 7.5 or if
all of the rights and obligations of Servicer shall have been terminated
under Section 8.1, the appointment of Servicer as Custodian hereunder may
be terminated by Indenture Trustee or by the Holders of Notes evidencing
more than 50% of the aggregate Outstanding Amount of the Notes (or if no
Notes are then Outstanding, the Holders of Certificates representing more
than 50% of the Certificate Balance), in the same manner as Indenture
Trustee or such Holders may terminate the rights and obligations of
Servicer under Section 8.1. The Indenture Trustee, at the direction of
Holders of Notes evidencing more than 50% of the aggregate Outstanding
Amount of the Notes, or, if no Notes are then Outstanding, the Owner
Trustee at the direction of Holders of Certificates more than 50% of the
Certificate Balance, may terminate Servicer's appointment as Custodian
hereunder at any time with cause, or with 30 days' prior notice without
cause, upon written notification to Servicer. As soon as practicable after
any termination of such appointment Servicer shall deliver, or cause to be
delivered, the Receivable Files to Indenture Trustee or Owner Trustee, as
applicable, or its respective agent or designee at such place or places as
Indenture Trustee or Owner Trustee, as applicable, may reasonably
designate. Notwithstanding any termination of Servicer as Custodian
hereunder (other than in connection with a termination resulting from the
termination of Servicer, as such, pursuant to Section 8.1), from and after
the date of such termination, and for so long as Servicer is acting as such
pursuant to this Agreement, Owner Trustee shall provide, or cause the
successor Custodian to provide, access to the Receivable Files to Servicer,
at such times as Servicer shall reasonably request, for the purpose of
carrying out its duties and responsibilities with respect to the servicing
of the Receivables hereunder.
(i) Delegation. Custodian may, at any time without notice or consent,
delegate any or all of its duties to any Seller Affiliate; provided that no
such delegation shall relieve Custodian of its responsibility with respect
to such duties and Custodian shall remain obligated and liable to Issuer
and the Holders for its duties hereunder as if Custodian alone were
performing such duties.
ARTICLE IV. ADMINISTRATION AND SERVICING OF RECEIVABLES.
SECTION 4.1. Duties of Servicer. (a) Servicer is hereby authorized
to act as agent for Issuer and in such capacity shall manage, service,
administer and make collections on the Receivables (other than Purchased
Receivables), and perform the other actions required by Servicer under this
Agreement, with reasonable care. Without limiting the standard set forth in
the preceding sentence, Servicer shall use a degree of skill, attention and
care that is not less than Servicer exercises with respect to comparable
Motor Vehicle Loans that it services for itself or others and that is
consistent with prudent industry standards. Servicer's duties shall
include the collection and posting of all payments, responding to inquiries
by Obligors on the Receivables, or by federal, state or local governmental
authorities, investigating delinquencies, sending payment coupons to
Obligors, reporting required tax information to Obligors, accounting for
Collections, monitoring the status of Physical Damage Insurance Policies
with respect to the Financed Vehicles as provided in Section 4.4(a),
furnishing monthly and annual statements to Owner Trustee and Indenture
Trustee with respect to distributions, providing collection and
repossession services in the event of Obligor default and performing the
other duties specified herein.
Servicer shall also administer and enforce all rights and
responsibilities of the holder of the Receivables provided for in the
Physical Damage Insurance Policies and the Dealer Agreements. Without
limiting the generality of the foregoing, Servicer is hereby authorized and
empowered by Issuer to execute and deliver, on behalf of itself, Indenture
Trustee, Issuer, Owner Trustee and the Holders, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge,
and all other comparable instruments, with respect to the Receivables or to
the Financed Vehicles, all in accordance with this Agreement; provided that
notwithstanding the foregoing, Servicer shall not, except pursuant to an
order from a court of competent jurisdiction, release an Obligor from
payment of any unpaid amount under any Receivable or waive the right to
collect the unpaid balance of any Receivable from the Obligor, except in
connection with a de minimis deficiency claim which Servicer would not
attempt to collect in accordance with its customary procedures. If Servicer
shall commence a legal proceeding to enforce a Receivable, Issuer shall
thereupon be deemed to have automatically assigned such Receivable to
Servicer, which assignment shall be solely for purposes of collection.
Nothing contained in this Agreement shall prevent the Servicer from
providing, or require Servicer to purchase any Receivable if Servicer
provides, to any Obligor any one-month extensions in accordance with its
customary servicing practices.
Owner Trustee shall furnish Servicer with any powers of attorney and
other documents or instruments necessary or appropriate to enable Servicer
to carry out its servicing and administrative duties hereunder.
(b) Servicer may, at any time without notice (except that Servicer
shall give written notice to each Rating Agency of any delegation of the
substantial portion of its servicing business) or consent, delegate (i) any
or all duties under this Agreement to any Person more than 50% of the
voting securities of which are owned, directly or indirectly, by Norwest
Corporation, a Delaware corporation, so long as Norwest Bank acts as
Servicer, or (ii) specific duties to sub-contractors who are in the
business of performing such duties; provided that no such delegation shall
relieve Servicer of its responsibility with respect to such duties and
Servicer shall remain obligated and liable to Issuer and the Holders for
servicing and administering the Receivables in accordance with this
Agreement as if Servicer alone were performing such duties.
SECTION 4.2. Collection of Receivable Payments. (a) Servicer shall
make reasonable efforts to collect all payments called for under the terms
and provisions of the Receivables as and when the same shall become due,
and otherwise act with respect to the Receivables, the Physical Damage
Insurance Policies, the Dealer Agreements and related property in such
manner as will, in the reasonable judgment of Servicer, maximize the amount
to be received by Issuer with respect thereto, in accordance with the
standard of care required by Section 4.1. Servicer shall be entitled to
amend or modify any Receivable in accordance with its customary procedures
if Servicer believes in good faith that such amendment or modification is
in Issuer's best interests; provided that Servicer may not, unless ordered
by a court of competent jurisdiction or otherwise required by applicable
law, (i) extend a Receivable beyond the Final Scheduled Maturity Date or
(ii) amend or modify the Principal Balance or Contract Rate of any
Receivable (except any increase in the Principal Balance made as a result
of any Force Placed Insurance Advance made with respect to such
Receivable). If Servicer fails to comply with the provisions of the
preceding sentence, Servicer shall be required to purchase the Receivable
or Receivables affected thereby, for the Purchase Amount, in the manner
specified in Section 4.7 as of the close of the Collection Period in which
such failure occurs. Servicer may, in its discretion (in accordance with
its customary standards, policies and procedures), waive any prepayment
charge, late payment charge or any other fee that may be collected in the
ordinary course of servicing a Receivable. Nothing contained in this
Agreement shall prevent the Servicer from providing, or require Servicer to
purchase any Receivable if Servicer provides, to any Obligor any one-month
extensions in accordance with its customary servicing practices.
(b) If in the course of collecting payments under the Receivables,
Servicer determines to set off any obligation of Servicer to an Obligor
against an amount payable by the Obligor with respect to such Receivable,
Servicer shall deposit the amount so set off in the Collection Account, no
later than the close of business on the Deposit Date for the Collection
Period in which the set-off occurs. All references herein to payments or
Liquidation Proceeds collected by Servicer shall include amounts set-off by
Servicer.
SECTION 4.3. Realization upon Receivables. On behalf of Issuer,
Servicer shall charge off a Receivable as a Defaulted Receivable in
accordance with its customary standards (and, in no event later than 180
days after a Receivable shall have become delinquent) and shall use
reasonable efforts to repossess and liquidate the Financed Vehicle securing
any Receivable as soon as feasible after default, in accordance with the
standard of care required by Section 4.1. In taking such action, Servicer
shall follow such customary and usual practices and procedures as it shall
deem necessary or advisable in its servicing of Motor Vehicle Loans, and as
are otherwise consistent with the standard of care required under Section
4.1, which shall include exercising any rights under the Dealer Agreements
and selling the Financed Vehicle at public or private sale. Servicer shall
be entitled to recover all reasonable expenses incurred by it in the course
of repossessing and liquidating a Financed Vehicle into cash proceeds or
pursuing any deficiency claim against the related Obligor, but only out of
the cash proceeds of such Financed Vehicle or any deficiency obtained from
the Obligor. The foregoing shall be subject to the provision that, in any
case in which a Financed Vehicle shall have suffered damage, Servicer shall
not expend funds in connection with the repair or the repossession of such
Financed Vehicle unless it shall determine in its discretion that such
repair and/or repossession will increase the Liquidation Proceeds of the
related Receivable by an amount equal to or greater than the amount of such
expenses.
If Servicer elects to commence a legal proceeding to enforce a Dealer
Agreement, the act of commencement shall be deemed to be an automatic
assignment from Issuer to Servicer of the rights under such Dealer
Agreement. If, however, in any enforcement suit or legal proceeding, it is
held that Servicer may not enforce a Dealer Agreement on the grounds that
it is not a real party in interest or a Person entitled to enforce the
Dealer Agreement, Owner Trustee, on behalf of Issuer, at Servicer's
expense, or Seller, at Servicer's expense, shall take such steps as
Servicer deems necessary to enforce the Dealer Agreement, including
bringing suit in Issuer's name or the name of Owner Trustee or Indenture
Trustee.
SECTION 4.4. Physical Damage Insurance. (a) The Receivables require
that each Financed Vehicle be insured under a Physical Damage Insurance
Policy. Servicer shall monitor or cause to be monitored the status of such
physical damage insurance coverage to the extent consistent with its
customary servicing procedures. If Servicer shall determine that an Obligor
has failed to obtain or maintain a Physical Damage Insurance Policy
covering the related Financed Vehicle, Servicer shall use its best efforts
to enforce the rights of the holder of the Receivable under the Receivable
to require the Obligor to obtain such physical damage insurance, provided
that Servicer shall not be required to take such actions if there is in
place a lender's single interest policy with respect to the related
Financed Vehicle that complies with Servicer's customary requirements.
(b) Servicer may sue to enforce or collect upon the Physical Damage
Insurance Policies, in its own name, if possible, or as agent for Issuer.
If Servicer elects to commence a legal proceeding to enforce a Physical
Damage Insurance Policy, the act of commencement shall be deemed to be an
automatic assignment of the rights of Issuer under such Physical Damage
Insurance Policy to Servicer for purposes of collection only. If, however,
in any enforcement suit or legal proceeding it is held that Servicer may
not enforce a Physical Damage Insurance Policy on the grounds that it is
not a real party in interest or a holder entitled to enforce the Physical
Damage Insurance Policy, Owner Trustee, on behalf of Issuer, at Servicer's
expense, or Seller, at Servicer's expense, shall take such steps as
Servicer deems necessary to enforce such Physical Damage Insurance Policy,
including bringing suit in Issuer's name or the name of Owner Trustee or
Indenture Trustee. Servicer shall make all claims and enforce its rights
under any lender's single interest insurance policy (to the extent such
claims or rights relate to Receivables) for the benefit of the Issuer and
shall treat as Collections all related proceeds of such policies.
(c) On behalf of Issuer, Servicer may, in its discretion, in
accordance with its customary servicing practices, force-place a Physical
Damage Insurance Policy on any Financed Vehicle for which Servicer
determines that an Obligor has failed to obtain or maintain a Physical
Damage Insurance Policy. In connection therewith, on behalf of Issuer,
Servicer shall advance from its own funds, the amount of any premium
payable in respect of such Physical Damage Insurance Policy (each, a "Force
Placed Insurance Advance") and cause such policy to name the Issuer as
"loss payee," "additional insured" or otherwise require the insurer to pay
any proceeds of such policy (and, in the event of a cancellation of such
policy, any rebates or refunds of premiums) directly to Issuer. The
Principal Balance of the Receivable secured by the Financed Vehicle to
which such premium relates shall be deemed to be increased by the amount of
such premium as provided under the terms of such Receivable in accordance
with the Servicer's customary practices, and any payments made by the
Obligor thereon in respect of such increased Principal Balance (including
any interest thereon) shall be treated as Collections on the related
Receivable. The Servicer shall promptly send to the Obligor new payment
coupons reflecting the revised Principal Balance and scheduled payments for
such Receivable. In the event Servicer receives notice or otherwise
discovers that the Obligor on such Receivable has obtained the required
Physical Damage Insurance Policy, and Servicer cancels the related force
placed policy obtained by it, the Servicer shall treat any rebates of
premium or other amounts received by it from the insurer as Collections on
the Receivable of such Obligor. On each Transfer Date, prior to the making
of any of the distributions set forth in Section 5.5, Servicer shall be
reimbursed for all Force-Placed Insurance Advances made through the related
Collection Period and not previously reimbursed to the extent of
Collections allocable to principal in accordance with the Servicer's
customary practices.
SECTION 4.5. Maintenance of Security Interests in Financed Vehicles.
Servicer, in accordance with the standard of care required under Section
4.1, shall take such steps as are necessary and as are consistent with its
customary business practices, to maintain perfection of the security
interest created by each Receivable in the related Financed Vehicle for the
benefit of Issuer. Owner Trustee, on behalf of Issuer, hereby authorizes
Servicer, and Servicer hereby agrees, to take such steps as are necessary
and as are consistent with its customary business practices to re-perfect
such security interest on behalf of Issuer in the event Servicer receives
notice of the relocation of a Financed Vehicle. If there has been a
Servicer Termination Event, upon the request of Owner Trustee, Seller and
Servicer, at their expense, shall promptly and duly execute and deliver
such documents and instruments, and take such other actions as may be
necessary, as evidenced by an Opinion of Counsel delivered to Issuer, Owner
Trustee and Indenture Trustee and as are consistent with its customary
business practices, to perfect Owner Trustee's and Indenture Trustee's
interest in the Collateral against all other Persons, including the
delivery of the Receivables and the Receivable Files to Indenture Trustee
(or Owner Trustee, if no Notes are then Outstanding), its agent or
designee, the endorsement and delivery of the Physical Damage Insurance
Policies or the notification of the insurers thereunder, the execution of
transfer instruments, and the endorsement to Indenture Trustee (or Owner
Trustee if no Notes are then Outstanding) and the delivery of the
certificates of title to the Financed Vehicles to the appropriate
department or departments of motor vehicles (or other appropriate
governmental agency).
SECTION 4.6. Covenants of Servicer. Servicer makes the following
covenants on which Issuer relies in acquiring the Receivables:
(a) Security Interest to Remain in Force. Servicer shall not
release any Financed Vehicle from the security interest granted by the
related Receivable in whole or in part, except upon payment in full of
the Receivable or as otherwise contemplated herein.
(b) No Impairment. Servicer shall not impair in any material
respect the rights of the Holders in the Receivables, the Dealer
Agreements or the Physical Damage Insurance Policies or, subject to
clause (c), otherwise amend or alter the terms thereof if, as a result
of such amendment or alteration, the interests of Issuer and the
Holders hereunder would be materially adversely affected.
(c) Amendments. Servicer shall not amend or otherwise modify
any Receivable (including the grant of any extension thereunder),
except in accordance with Section 4.2 and 4.4(c).
SECTION 4.7. Purchase by Servicer upon Breach. Seller, Servicer or
Owner Trustee, as the case may be, shall inform the other parties to this
Agreement and Indenture Trustee promptly, in writing, upon the discovery of
any breach by Servicer of its covenants under Section 4.5 or 4.6; provided
that the failure to give such notice shall not affect any obligation of
Servicer. If the breach shall not have been cured by the last day of the
Collection Period which includes the 60th day (or the 30th day, if Servicer
so elects) after the date on which Servicer becomes aware of, or receives
written notice from Owner Trustee, Indenture Trustee or Seller of, such
breach, and such breach or failure materially and adversely affects the
interests of Issuer and the Holders in any Receivable, Servicer shall
purchase such Receivable from Issuer as of the last day of the Collection
Period at a purchase price equal to the Purchase Amount for such Receivable
as of the last day of such Collection Period provided that in the case of a
breach of the covenant contained in Section 4.6(c), Servicer shall be
obligated to purchase the affected Receivable or Receivables on the Deposit
Date immediately succeeding the Collection Period during which Servicer
becomes aware of, or receives written notice of, such breach. In
consideration of the purchase of a Receivable hereunder, Servicer shall
remit the Purchase Amount of such Receivable in the manner specified in
Section 5.4. The sole remedy of Issuer, Owner Trustee, Indenture Trustee or
the Holders against Servicer with respect to a breach pursuant to Section
4.5 or 4.6 shall be to require Servicer to repurchase Receivables pursuant
to this Section.
SECTION 4.8. Servicing Fee. The servicing fee for (a) the initial
Transfer Date shall be equal to the product of (i) the actual number of
days in the initial Collection Period divided by 360, (ii) the Servicing
Fee Rate, and (iii) the Pool Balance as of the close of business on the
Cutoff Date and (b) for each Transfer Date thereafter shall equal the
product of (i) one-twelfth, (ii) the Servicing Fee Rate and (iii) the Pool
Balance as of the opening of business on the first day of the related
Collection Period (the "Servicing Fee"). Servicer shall also be entitled to
retain any late fees, extension fees, prepayment charges and certain
non-sufficient funds charges and other administrative fees or similar
charges allowed by applicable law with respect to Receivables collected
(from whatever source) on the Receivables and shall be paid any interest
earned on deposits in the Trust Accounts and the Certificate Distribution
Account (the "Supplemental Servicing Fee"). It is understood and agreed
that Interest Collections or Available Principal shall not include any
amounts retained by Servicer which constitute Supplemental Servicing Fees.
The Servicing Fee in respect of a Collection Period (together with any
portion of the Servicing Fee that remains unpaid from prior Transfer
Dates), if the Rating Agency Condition is satisfied, may be paid at the
beginning of such Collection Period out of Collections for such Collection
Period.
SECTION 4.9. Servicer's Report. (a) On each Determination Date,
Servicer shall deliver to Owner Trustee, Indenture Trustee, each Paying
Agent and Seller, with a copy to the Rating Agencies, a Servicer's Report
substantially in the form of Exhibit A, containing all information
necessary to make the transfers and distributions pursuant to Sections 5.3,
5.4, 5.5, and 5.8 for the Collection Period preceding the date of such
Servicer's Report together with all information necessary for the Owner
Trustee to send statements to the Certificateholders pursuant to Section
5.5 and Indenture Trustee to send statements to Noteholders pursuant to
Section 5.5 and Section 6.6 of the Indenture. Receivables to be purchased
by Servicer or to be repurchased by Seller shall be identified by Servicer
by account number with respect to such Receivable as specified in the
Schedule of Receivables.
(b) Servicer shall provide Indenture Trustee with a database file for
each Receivable at or prior to closing (but with information as of the
Cutoff Date).
(c) Neither Owner Trustee nor Indenture Trustee shall be responsible
for delays attributable to Servicer's failure to deliver information,
defects in the information supplied by Servicer or other circumstances
beyond Owner Trustee's or Indenture Trustee's control.
SECTION 4.10. Annual Statement as to Compliance; Notice of Default.
(a)Servicer shall deliver to Owner Trustee and Indenture Trustee, on or
before April 30 of each year beginning April 30, 1998, an Officers'
Certificate, dated as of December 31 of the preceding year, stating that
(i) a review of the activities of Servicer during the preceding 12-month
period (or, in the case of the first such report, during the period from
the Closing Date to December 31, 1997) and of its performance under this
Agreement has been made under such officers' supervision and (ii) to the
best of such officers' knowledge, based on such review, Servicer has
fulfilled all its obligations under this Agreement throughout such year or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officers and the nature and
status thereof. Indenture Trustee shall send a copy of such certificate and
the report referred to in Section 4.11 to the Rating Agencies. A copy of
such certificate and the report referred to in Section 4.11 may be obtained
by any Certificateholder by a request in writing to Owner Trustee addressed
to the Corporate Trust Office or by any Noteholder by a request in writing
to Indenture Trustee addressed to the Corporate Trust Office.
(b) Servicer shall deliver to Owner Trustee, Indenture Trustee and
the Rating Agencies, promptly after having obtained knowledge thereof, but
in no event later than five (5) Business Days thereafter, written notice in
an Officers' Certificate of any event which with the giving of notice or
lapse of time, or both, would become a Servicer Termination Event under
Section 8.1.
SECTION 4.11. Annual Independent Certified Public Accountants'
Report. Servicer shall cause a firm of independent certified public
accountants, which may also render other services to Servicer or Seller, to
deliver to Seller, Owner Trustee and Indenture Trustee on or before April
30 of each year beginning April 30, 1998, an agreed-upon procedures report
addressed to Servicer, Seller, Owner Trustee and Indenture Trustee and each
Rating Agency, expressing a summary of findings, (based on certain
procedures performed on the documents, records and accounting records that
such accountants considered appropriate under the circumstances) relating
to the servicing of the Receivables, or the administration of the
Receivables and of Issuer, as the case may be, during the preceding
calendar year (or, in the case of the first such report, during the period
from the Closing Date to December 31, 1997) and that, on the basis of the
accounting and auditing procedures considered appropriate under the
circumstances, such firm is of the opinion that such servicing or
administration was conducted in compliance with the terms of this
Agreement, except for (a) such exceptions as such firm shall believe to be
immaterial and (b) such other exceptions as shall be set forth in such
report.
Such report will also indicate that the firm is independent of
Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
SECTION 4.12. Access to Certain Documentation and Information
Regarding Receivables. Servicer shall provide to the Indenture Trustee and
Owner Trustee reasonable access to the Receivable Files. Such access shall
be afforded without charge, but only upon reasonable request and during the
normal business hours at the respective offices of Servicer. Nothing in
this Section shall affect the obligation of Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors
and the failure of Servicer to provide access to information as a result of
such obligation shall not constitute a breach of this Section.
SECTION 4.13. Servicer Expenses. Except as provided in Section 4.3,
Servicer shall be required to pay all expenses incurred by it in connection
with its activities hereunder, including fees and disbursements of the
Owner Trustee, Indenture Trustee, independent accountants, taxes imposed on
Servicer and expenses incurred in connection with distributions and reports
to Certificateholders and Noteholders.
ARTICLE V. DISTRIBUTION; RESERVE ACCOUNT; STATEMENTS
TO CERTIFICATEHOLDERS AND NOTEHOLDERS.
SECTION 5.1. Establishment of Trust Accounts. (a) Servicer shall
cause to be established:
(i) For the benefit of the Noteholders and the
Certificateholders, in the name of Indenture Trustee, an Eligible
Deposit Account (the "Collection Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Noteholders and the Certificateholders.
(ii) For the benefit of the Noteholders, in the name of
Indenture Trustee, an Eligible Deposit Account (the "Note Distribution
Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Noteholders.
(b) Funds on deposit in the Collection Account and the Note
Distribution Account (collectively the "Trust Accounts") and the
Certificate Distribution Account shall be invested by Indenture Trustee
with respect to the Trust Accounts and by Owner Trustee with respect to the
Certificate Distribution Account (or any custodian with respect to funds on
deposit in any such account) in Eligible Investments selected in writing by
Servicer (pursuant to standing instructions or otherwise); provided that it
is understood and agreed that neither Indenture Trustee nor Owner Trustee
shall be liable for any loss arising from such investment in Eligible
Investments. All such Eligible Investments shall be held by or on behalf of
Indenture Trustee or Owner Trustee, as applicable, for the benefit of the
Noteholders and the Certificateholders or the Noteholders or the
Certificateholders, as applicable; provided that on each Distribution Date
all interest and other investment income (net of losses and investment
expenses) on funds on deposit in the Trust Accounts or Certificate
Distribution Account shall be distributed to Seller and shall not be
available to pay the distributions provided for in Section 5.5 and shall
not otherwise be subject to any claims or rights of Holders. Other than as
permitted by the Rating Agencies, funds on deposit in the Trust Accounts
and the Certificate Distribution Account shall be invested in Eligible
Investments that will mature (A) not later than the next Deposit Date or
(B) in the case of deposits in the Collection Account on the next Transfer
Date if such investment is held in the trust department of the institution
with which the applicable Trust Account or the Certificate Distribution
Account is then maintained and is invested in a time deposit of the
Indenture Trustee. No Eligible Investment shall be sold or otherwise
disposed of prior to its scheduled maturity. Funds deposited in a Trust
Account or the Certificate Distribution Account on a Deposit Date which
immediately precedes a Transfer Date or Distribution Date upon the maturity
of any Eligible Investments are not required to be (but are permitted to
be) invested overnight.
(c) Indenture Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Trust Accounts and in all
proceeds thereof (excluding investment income thereon) and all such funds,
investments and proceeds shall be part of the Owner Trust Estate. Except as
otherwise provided herein, the Trust Accounts shall be under the sole
dominion and control of Indenture Trustee for the benefit of the
Noteholders and the Certificateholders; provided, however, the Indenture
Trustee shall not be charged with any obligation for the benefit of the
Certificateholders except as provided by the terms of this Agreement. If,
at any time, any of the Trust Accounts or the Certificate Distribution
Account ceases to be an Eligible Deposit Account, Indenture Trustee (or
Servicer on its behalf) or Owner Trustee, as applicable, shall within 10
Business Days (or such longer period as to which each Rating Agency may
consent) establish a new Trust Account or Certificate Distribution Account,
as applicable, as an Eligible Deposit Account and shall transfer any cash
and/or any investments to such new Trust Account or new Certificate
Distribution Account, as applicable. In connection with the foregoing,
Servicer agrees that, in the event that any of the Trust Accounts are not
accounts with Indenture Trustee, Servicer shall notify Indenture Trustee in
writing promptly upon any of such Trust Accounts ceasing to be an Eligible
Deposit Account.
(d) With respect to the Trust Account Property and the Certificate
Distribution Account, each of Indenture Trustee and Owner Trustee agrees,
by its respective acceptance hereof, that
(i) any Trust Account Property or any property in the
Certificate Distribution Account that is held in deposit accounts
shall be held solely in the Eligible Deposit Accounts and, except as
otherwise provided herein, each such Eligible Deposit Account shall be
subject to the exclusive custody and control of Indenture Trustee with
respect to the Trust Accounts and the Owner Trustee with respect to
the Certificate Distribution Account, and Indenture Trustee or Owner
Trustee, as applicable, shall have sole signature authority with
respect thereto;
(ii) any Trust Account Property or Certificate Account Property
that constitutes Physical Property shall be delivered to Indenture
Trustee or Owner Trustee, respectively, in accordance with paragraph
(a) of the definition of "Delivery" and shall be held, pending
maturity or disposition, solely by Indenture Trustee or Owner Trustee,
as applicable, or a financial intermediary (as such term is defined in
Section 8-313(4) of the UCC) acting solely for Indenture Trustee or
Owner Trustee, as applicable;
(iii) any Trust Account Property or Certificate Account
Property that is a book-entry security held through the Federal
Reserve System pursuant to Federal book-entry regulations shall be
delivered in accordance with paragraph (b) of the definition of
"Delivery" and shall be maintained by Indenture Trustee or Owner
Trustee, as applicable, pending maturity or disposition, through
continued book-entry registration of such Trust Account Property or
Certificate Account Property as described in such paragraph; and
(iv) any Trust Account Property or Certificate Account Property
that is an "uncertificated security" under Article 8 of the UCC and
that is not governed by clause (iii) above shall be delivered to
Indenture Trustee or Owner Trustee, as applicable, in accordance with
paragraph (c) of the definition of "Delivery" and shall be maintained
by Indenture Trustee or Owner Trustee, as applicable, pending maturity
or disposition, through continued registration of Indenture Trustee's
(or its nominee's) or Owner Trustee's (or its nominee's) ownership of
such security.
Effective upon Delivery of any Trust Account Property or Certificate
Account Property, Indenture Trustee, or Owner Trustee, as applicable, shall
be deemed to have represented that it has purchased such Trust Account
Property or Certificate Account Property, as applicable, for value, in good
faith and without notice of any adverse claim thereto.
(e) Servicer shall have the power, revocable by Indenture Trustee or
by Owner Trustee with the consent of Indenture Trustee, to instruct
Indenture Trustee to make withdrawals and payments from the Trust Accounts
for the purpose of permitting Servicer or Owner Trustee to carry out its
respective duties hereunder or permitting Indenture Trustee to carry out
its duties under the Indenture.
SECTION 5.2. Collections. (a) Servicer shall remit within two
Business Days of receipt thereof to the Collection Account all payments by
or on behalf of the Obligors with respect to the Receivables (other than
any late fees, prepayment charges and certain nonsufficient funds charges
and other administrative fees or similar charges that may be retained by
Servicer as part of its servicing compensation in accordance with Section
4.8), and all Liquidation Proceeds. Notwithstanding the foregoing, if
Norwest Bank is the Servicer and (i) shall have the Required Rating or (ii)
Indenture Trustee otherwise shall have received written notice from each of
the Rating Agencies that the then outstanding rating on the Notes or the
Certificates would not be lowered or withdrawn as a result, Servicer may
deposit all amounts referred to above for any Collection Period into the
Collection Account not later than the close of business on the Deposit Date
with respect to such Collection Period; provided that (i) if a Servicer
Termination Event has occurred and is continuing, (ii) Servicer has been
terminated as such pursuant to Section 8.1 or (iii) Servicer ceases to have
the Required Rating, Servicer shall deposit such amounts (including any
amounts then being held by Servicer) into the Collection Account as
provided above. For purposes of this Article V the phrase "payments by or
on behalf of Obligors" shall mean payments made with respect to the
Receivables by Persons other than Servicer, Seller or any Seller Affiliate.
(b) With respect to each Receivable (other than a Purchased
Receivable), collections and payments by or on behalf of the Obligor for
each Collection Period shall be applied to interest and principal in
accordance with the Simple Interest Method, as applied by Servicer. Any
excess shall be applied to prepay the Receivable.
SECTION 5.3. Advances. (a) On or prior to each Deposit Date,
Servicer shall advance any Interest Shortfall with respect to the related
Transfer Date by depositing the amount of such Interest Shortfall into the
Collection Account. Servicer shall be obligated to make such an Advance
except to the extent that Servicer shall reasonably determine that the
Advance is unlikely to be recoverable pursuant to subsection (b).
(b) On each Transfer Date, prior to making any of the distributions
set forth in Section 5.5, Servicer shall be reimbursed for all Outstanding
Advances with respect to prior Transfer Dates, to the extent of the
Interest Collections for such Transfer Date and, to the extent such
Interest Collections are insufficient, to the extent of the funds in the
Reserve Account (other than the Certificate Interest Reserve Amount). If it
is acceptable to each Rating Agency without a reduction in the rating of
the Certificates, the Outstanding Advances at the option of Servicer may be
paid at or as soon as possible after the beginning of the related
Collection Period out of the first collections of interest received on the
Receivables for such Collection Period.
(c) On each Transfer Date, prior to the making of any of the
distributions set forth in Section 5.5, Servicer shall be reimbursed for
all Force Placed Insurance Advances not previously reimbursed to the extent
of Collections allocable to principal in accordance with the Servicer's
customary practices. If it is acceptable to each Rating Agency without a
reduction in the rating of the Notes or Certificates, all Forced Placed
Insurance Advances at the option of Servicer may be paid at or as soon as
possible after the beginning of the related Collection Period out of the
first collections of principal received on the Receivables for such
Collection Period.
SECTION 5.4. Additional Deposits. Servicer and Seller shall deposit
or cause to be deposited in the Collection Account the aggregate Purchase
Amounts with respect to Purchased Receivables and Seller or Servicer shall
deposit therein all amounts to be paid under Section 9.1. All such deposits
shall be made not later than the Deposit Date following the end of the
related Collection Period.
SECTION 5.5. Distributions. (a) On each Determination Date, Servicer
shall calculate all amounts required to determine the amounts to be
deposited on the related Transfer Date from the Reserve Account into the
Collection Account and from the Collection Account into the Note
Distribution Account and the Certificate Distribution Account.
(b) On or before each Transfer Date, Servicer shall instruct
Indenture Trustee in writing (based on the information contained in the
Servicer's Report delivered on the related Determination Date pursuant to
Section 4.9) to withdraw from the Reserve Account and deposit in the
Collection Account and Indenture Trustee shall so withdraw and deposit the
Reserve Account Transfer Amount for such Transfer Date.
(c) Subject to the last paragraph of this Section 5.5(c), on each
Transfer Date, after making the reimbursements to Servicer of Outstanding
Advances and Force Placed Insurance Advances pursuant to Section 5.3,
Indenture Trustee shall (based on the information contained in Servicer's
Report delivered on the related Determination Date pursuant to Section 4.9)
make the following deposits and distributions from the Collection Account
for deposit in the applicable account by 11:00 a.m. (New York time), to the
extent of the Total Distribution Amount, in the following order of
priority:
(i) to Servicer, from the Total Distribution Amount, the
Servicing Fee for the related Collection Period and all accrued and
unpaid Servicing Fees for prior Collection Periods;
(ii) to the Note Distribution Account, from the Total
Distribution Amount remaining after the application of clause (i), the
Noteholders' Interest Distributable Amount;
(iii) to the Note Distribution Account, from the Total
Distribution Amount remaining after the application of clause (i) and
clause (ii), the Noteholders' Principal Distributable Amount;
(iv) to Owner Trustee for deposit in the Certificate
Distribution Account, from the Total Distribution Amount remaining
after the application of clause (i) through clause (iii), the
Certificateholders' Interest Distributable Amount;
(v) to Owner Trustee for deposit in the Certificate
Distribution Account, from the Total Distribution Amount remaining
after the application of clauses (i) through (iv), the
Certificateholders' Principal Distributable Amount;
(vi) to the Reserve Account until the amount on deposit in the
Reserve Account equals the Specified Reserve Account Balance; and
(vii) to Seller, any amounts remaining.
If funds applied in accordance with the preceding sentence are (based
upon the information contained in the Servicer's Report delivered on the
related Determination Date) insufficient to distribute the
Certificateholders' Interest Distributable Amount in full for such Transfer
Date, the Indenture Trustee shall (based upon the information provided in
the Servicer's Report), to the extent of the Certificate Interest Reserve
Amount, withdraw the Certificate Interest Shortfall Amount from the Reserve
Account and transfer such amount to Owner Trustee for deposit in the
Certificate Distribution Account. Notwithstanding the foregoing, following
the occurrence and during the continuation of an Event of Default which has
resulted in an acceleration of the Notes, the Total Distribution Amount
remaining after the application of clauses (i) and (ii) above will be
deposited in the Note Distribution Account to the extent necessary to
reduce the principal amount of all the Notes to zero, and the
Certificateholders will not receive any distributions until the principal
amount and accrued interest on the Notes have been paid in full. In the
event that the Collection Account is maintained with an institution other
than Indenture Trustee, Indenture Trustee shall instruct and cause such
institution to make all deposits and distributions pursuant to this Section
5.5(c) on the related Deposit Date.
(d) Indenture Trustee shall continue to perform its duties under this
Agreement after the Outstanding Amount of the Notes has been reduced to
zero and the Indenture has been discharged in accordance with its terms.
The protections, immunities and standard of care afforded the Indenture
Trustee under the Indenture shall apply to the performance of its duties
hereunder.
SECTION 5.6. Statements to Certificateholders and Noteholders. On
each Determination Date, Servicer shall provide to Indenture Trustee (with
a copy to each Rating Agency) with written instructions for Indenture
Trustee to forward to each Noteholder of record, to each Paying Agent, if
any, and to Owner Trustee for Owner Trustee to forward to each
Certificateholder of record, a statement substantially in the form of
Exhibit A, setting forth at least the following information as to the Notes
and the Certificates to the extent applicable:
(a) the amount of such distribution allocable to principal of
each class of Notes and to the Certificate Balance of the
Certificates;
(b) the amount of such distribution allocable to interest on or
with respect to each class of Notes and to the Certificates;
(c) the Pool Balance as of the close of business on the last
day of the related Collection Period, after giving effect to payments
allocated to principal reported under clause (a) above;
(d) the aggregate outstanding principal balance of each class
of the Notes, the Note Pool Factor for each such class, the
Certificate Balance and the Certificate Pool Factor after giving
effect to payments allocated to principal reported under clause (a)
above;
(e) the amount of the Servicing Fee paid to Servicer with
respect to the related Collection Period and with respect to
previously accrued and unpaid Servicing Fees;
(f) the amount of the aggregate Charged Off Balance, if any,
for such Collection Period;
(g) the Reserve Account Transfer Amount, if any, for such
Distribution Date, Average Net Loss Ratio and the Average Delinquency
Ratio, the Specified Reserve Account Balance for such Transfer Date,
the amount distributed to Seller from the Reserve Account on such
Transfer Date, and the balance of the Reserve Account (if any) and the
Certificate Interest Reserve Amount (if any), in each case, on such
Transfer Date, after giving effect to changes therein on such Transfer
Date;
(h) the Noteholders' Interest Carryover Shortfall, the
Certificateholders' Interest Carryover Shortfall, the Noteholders'
Principal Carryover Shortfall, and the Certificateholders' Principal
Carryover Shortfall and the change in such amounts from the statement
delivered with respect to the preceding Collection Period;
(i) the amount of Advances made with respect to the related
Collection Period and the amount of the Outstanding Advances; and
(j) the aggregate Purchase Amount paid by Seller or Servicer
with respect to the related Collection Period.
Each amount set forth pursuant to paragraph (a), (b), (e) or (h) above
shall be expressed as a dollar amount per $1,000 of the initial principal
balance of the Notes (or class thereof) or the initial Certificate Balance,
as applicable.
SECTION 5.7. Net Deposits. As an administrative convenience, unless
Servicer is required to remit collections within two Business Days of
receipt thereof, Servicer will be permitted to make the deposit of
Collections and Purchase Amounts for or with respect to the Collection
Period net of distributions to be made to Servicer with respect to the
Collection Period. Servicer, however, will account to Owner Trustee,
Indenture Trustee, the Noteholders and the Certificateholders as if all
deposits, distributions and transfers were made individually.
SECTION 5.8. Reserve Account. (a) Seller shall establish and
maintain in the name of the Indenture Trustee, as agent for the Issuer, the
Noteholders and Certificateholders an Eligible Deposit Account (the
"Reserve Account"). The Reserve Account and any amounts therein shall not
be property of Issuer, but shall be pledged to the Indenture Trustee and
held for the benefit of the Noteholders and Certificateholders. The Reserve
Account shall be initially established and maintained with The Chase
Manhattan Bank (the "Securities Intermediary"). On the Closing Date, Seller
shall deposit or cause to be deposited in the Reserve Account an amount
equal to the Reserve Account Deposit.
(b) In order to provide for the prompt payment to the Holders and to
assure availability of the amounts maintained in the Reserve Account:
(i) Seller, on behalf of itself and its successors and assigns,
and solely for the purpose of providing for payment of the
distributions provided for in Section 5.5, hereby grants a security
interest in and pledges to Indenture Trustee and its successors and
assigns, as agent for the benefit of the Issuer, the Noteholders and
the Certificateholders, all of its right, title and interest in and to
the Reserve Account, subject, however, to the limitations set forth in
this Agreement, and all proceeds of the foregoing, including all
securities, investments, general intangibles, financial assets and
investment property from time to time credited to and any security
entitlement to the Reserve Account; and
(ii) Seller hereby grants a security interest and pledges to
Indenture Trustee and its successors and assigns as agent for the
benefit of the Issuer, the Noteholders and the Certificateholders, the
Reserve Account Deposit and all proceeds thereof, and solely for the
purpose of providing for payment of the distributions provided for in
Section 5.5, (all of the foregoing, subject to the limitations set
forth in this Section, the "Reserve Account Property"),
to have and to hold all the aforesaid property, rights and privileges unto
Indenture Trustee, its successors and assigns, in trust for the uses and
purposes, and subject to the terms and provisions, set forth in this
Section. Indenture Trustee hereby acknowledges such transfer and accepts
the trust hereunder and shall hold and distribute the Reserve Account
Property in accordance with the terms and provisions of this Section.
(c) Indenture Trustee shall, at the written direction of Seller,
direct the Securities Intermediary to invest funds on deposit in the
Reserve Account in Eligible Investments selected by Seller and confirmed in
writing by Seller to Indenture Trustee; provided that it is understood and
agreed that Indenture Trustee shall not be liable for any loss arising from
such investment in Eligible Investments. Funds on deposit in the Reserve
Account shall be invested in Eligible Investments that will mature so that
all such funds will be available at the close of business on each Deposit
Date; provided that to the extent permitted by the Rating Agencies
following written request by Servicer, funds on deposit in the Reserve
Account may be invested in Eligible Investments that mature later than the
next Deposit Date. Funds deposited in the Reserve Account on a Deposit Date
upon the maturity of any Eligible Investments are not required to be (but
may be) invested overnight. Seller will treat the funds, Eligible
Investments and other assets in the Reserve Account as its own for Federal,
state and local income tax and franchise tax purposes and will report on
its tax returns all income, gain and loss from the Reserve Account.
(d) The Securities Intermediary hereby expressly agrees with the
Indenture Trustee that: (i) all matters relating to the Reserve Account
shall be governed by the laws of the State of Minnesota; (ii) all Eligible
Investments held by the Securities Intermediary on behalf of the Indenture
Trustee in the Reserve Account shall be treated as "financial assets" (as
defined in Article 8 of the Minnesota Uniform Commercial Code; (iii) the
Securities Intermediary will treat the Indenture Trustee as entitled to
exercise the rights comprising the financial assets credited to the Reserve
Account; (iv) the financial assets credited to the Reserve Account shall
not be registered in the name of, payable to the order of, or specially
indorsed to the Indenture Trustee; and (v) the Securities Intermediary will
not agree to comply with entitlement orders originated by any person with
respect to the financial assets held in the Reserve Account other than the
Indenture Trustee.
(e) On each Transfer Date, any amounts on deposit in the Collection
Account with respect to the preceding Collection Period after payments to
Servicer, the Note Distribution Account and the Certificate Distribution
Account have been made will be deposited into the Reserve Account until the
amount of the Reserve Account is equal to the Specified Reserve Account
Balance.
(f) The Reserve Account shall be under the sole custody and control
of Indenture Trustee. If, at any time, the Reserve Account ceases to be an
Eligible Deposit Account, Indenture Trustee shall within 10 Business Days
(or such longer period, not to exceed 30 calendar days, as to which each
Rating Agency may consent) establish a new Reserve Account as an Eligible
Deposit Account and shall transfer any cash and/or any investments that are
in the existing Account which is no longer an Eligible Deposit Account to
such new Reserve Account.
(g) Amounts on deposit in the Reserve Account will be released to
Seller on each Transfer Date to the extent that the amount credited to the
Reserve Account would exceed the Specified Reserve Account Balance. Upon
any distribution to Seller of amounts from the Reserve Account, the Holders
will not have any rights in, or claims to, such amounts. Amounts
distributed to Seller from the Reserve Account in accordance with this
Section shall not be available under any circumstances to Issuer, Owner
Trustee, Indenture Trustee or the Holders and Seller shall in no event
thereafter be required to refund any such distributed amounts.
(h) With respect to the Reserve Account Property, Seller, Indenture
Trustee and Owner Trustee agree that the Reserve Account Deposit and all
other funds and Reserve Account Property shall be delivered to Indenture
Trustee for credit to the Reserve Account. In addition:
(i) any Reserve Account Property that constitutes Physical
Property shall be delivered to Indenture Trustee in accordance with
paragraph (a) of the definition of "Delivery" and shall be held,
pending maturity or disposition, solely by Indenture Trustee or a
financial intermediary (as such term is defined in Section 8-313(4) of
the UCC) acting solely for Indenture Trustee or Owner Trustee, as
applicable;
(ii) any Reserve Account Property that is a book-entry security
held through the Federal Reserve System pursuant to Federal book-entry
regulations shall be delivered in accordance with paragraph (b) of the
definition of "Delivery" and shall be maintained by Indenture Trustee
pending maturity or disposition, through continued book-entry
registration of such Reserve Account Property as described in such
paragraph; and
(iii) any Reserve Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by
clause (ii) above shall be delivered to Indenture Trustee in
accordance with paragraph (c) of the definition of "Delivery" and
shall be maintained by Indenture Trustee pending maturity or
disposition, through continued registration of Indenture Trustee's (or
its nominee's) ownership of such security.
Effective upon the crediting of any Reserve Account Property to the Reserve
Account, Indenture Trustee shall be deemed to have represented that it has
purchased such Reserve Account Property for value, in good faith and
without notice of any adverse claim thereto.
(i) Seller (and any successor to Seller in accordance with Section
6.4) and Servicer agree to take or cause to be taken such further actions,
to execute, deliver and file or cause to be executed, delivered and filed
such further documents and instruments (including any UCC financing
statements or this Agreement) as may be determined to be necessary, in an
Opinion of Counsel to Seller delivered to Owner Trustee and Indenture
Trustee in order to perfect the interests created by this Section 5.8 and
otherwise fully to effectuate the purposes, terms and conditions of this
Section 5.8. Seller (and any successor to Seller in accordance with Section
6.4) and Servicer shall:
(1) promptly execute, deliver and file any financing
statements, amendments, continuation statements, assignments,
certificates and other documents with respect to such interests and
perform all such other acts as may be necessary in order to perfect or
to maintain the perfection of Indenture Trustee's security interest;
and
(2) make the necessary filings of financing statements or
amendments thereto within five days after the occurrence of any of the
following: (1) any change in their respective names or any trade
names, (2) any change in the location of their respective chief
executive offices or principal places of business and (3) any merger
or consolidation or other change in their respective identities or
corporate structures; and shall promptly notify Owner Trustee and
Indenture Trustee of any such filings.
(j) Investment earnings attributable to the Reserve Account Property
and proceeds therefrom shall be held by Indenture Trustee for the benefit
of Seller. Investment earnings attributable to the Reserve Account
Property shall not be available to pay the distributions provided for in
Section 5.5 and shall not otherwise be subject to any claims or rights of
the Holders or Servicer. Indenture Trustee shall cause all investment
earnings attributable to the Reserve Account to be distributed on each
Distribution Date to Seller.
(k) Seller may at any time, without consent of Holders, sell,
transfer, convey or assign in any manner its rights to and interests in
distributions from the Reserve Account provided that (i) the Rating
Agencies confirm in writing that such action will not result in a reduction
or withdrawal of the rating of any class of Notes or Certificates, (ii)
Seller provides to Owner Trustee and Indenture Trustee an Opinion of
Counsel from independent counsel that such action will not cause Issuer to
be classified as an association (or publicly traded partnership) taxable as
a corporation for federal income tax purposes and (iii) such transferee or
assignee agrees in writing to take positions for federal income tax
purposes consistent with the federal income tax positions agreed to be
taken by Seller.
ARTICLE VI. SELLER.
SECTION 6.1. Representations of Seller. Seller makes the following
representations on which Issuer is deemed to have relied in acquiring the
Receivables and the other properties and rights included in the Owner Trust
Estate. The representations speak as of the execution and delivery of this
Agreement and shall survive the sale of the Receivables to Issuer and the
pledge thereof to Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. Seller has been duly
organized and is validly existing as a Delaware corporation in good
standing under the laws of the State of Delaware, with the power and
authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently
conducted and had at all relevant times, and has, full power,
authority and legal right to acquire, own and sell the Receivables and
the other properties and rights included in the Owner Trust Estate
assigned to Issuer pursuant to Article II.
(b) Power and Authority. Seller has the power, authority and
legal right to execute and deliver this Agreement and the Basic
Documents and to carry out their respective terms and to sell and
assign the property to be sold and assigned to and deposited with
Issuer as the Owner Trust Estate; and the execution, delivery and
performance of this Agreement and the Basic Documents have been duly
authorized by Seller by all necessary corporate action.
(c) No Consent Required. No approval, authorization, consent,
license or other order or action of, or filing or registration with,
any governmental authority, bureau or agency is required in connection
with the execution, delivery or performance of this Agreement or the
Basic Documents or the consummation of the transactions contemplated
hereby or thereby, other than (i) as may be required under the blue
sky or securities laws of any State or the Securities Act of 1933, as
amended, and (ii) the filing of UCC financing statements.
(d) Valid Sale; Binding Obligation. Seller intends this
Agreement to effect a valid sale, transfer, and assignment of the
Receivables and the other properties and rights included in the Owner
Trust Estate conveyed by Seller to Issuer hereunder, enforceable
against creditors of and purchasers from Seller; and each of this
Agreement and each of the Basic Documents constitutes a legal, valid
and binding obligation of Seller, enforceable against Seller in
accordance with its respective terms, subject, as to enforceability,
to applicable bankruptcy, insolvency, reorganization, conservatorship,
receivership, liquidation and other similar laws affecting enforcement
of the rights of creditors generally and to equitable limitations on
the availability of specific remedies.
(e) No Violation. The execution, delivery and performance by
Seller of this Agreement and the Basic Documents and the consummation
of the transactions contemplated hereby and thereby will not conflict
with, result in any material breach of any of the terms and provisions
of, constitute (with or without notice or lapse of time) a material
default under or result in the creation or imposition of any Lien upon
any of its material properties pursuant to the terms of, (i) the
certificate of incorporation or bylaws of Seller, (ii) any material
indenture, contract, lease, mortgage, deed of trust or other
instrument or agreement to which Seller is a party or by which Seller
is bound, or (iii) any law, order, rule or regulation applicable to
Seller of any federal or state regulatory body, any court,
administrative agency, or other governmental instrumentality having
jurisdiction over Seller.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of Seller, threatened, before any court,
regulatory body, administrative agency, or other tribunal or
governmental instrumentality having jurisdiction over Seller or its
properties: (i) asserting the invalidity of this Agreement, any other
Basic Document, the Notes or the Certificates, (ii) seeking to prevent
the issuance of the Notes or the Certificates or the consummation of
any of the transactions contemplated by this Agreement or any other
Basic Document, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Seller of its
obligations under, or the validity or enforceability of, this
Agreement, any other Basic Document, the Notes or the Certificates, to
the extent applicable, or (iv) that may materially and adversely
affect the federal or state income, excise franchise or similar tax
attributes of the Certificates.
(g) Chief Executive Office. The chief executive office of
Seller is
located 100 West Commons Boulevard, Suite 212, New Castle, Delaware 19720.
SECTION 6.2. Continued Existence. During the term of this Agreement,
subject to Section 6.4, Seller will keep in full force and effect its
existence, rights and franchises as a corporation organized under the laws
of the State of Delaware and will obtain and preserve its qualification to
do business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Basic Documents and each other instrument or agreement necessary or
appropriate to the proper administration of this Agreement and the
transactions contemplated hereby.
SECTION 6.3. Liability of Seller; Indemnities. Seller shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by Seller under this Agreement.
(a) Subject to Section 10.3, Seller shall indemnify, defend and
hold harmless Issuer, Owner Trustee and Indenture Trustee and their
respective officers, directors, employees and agents from and against
any taxes that may at any time be asserted against any such Person
with respect to, and on the date of, the sale of the Receivables to
Issuer or the issuance and original sale of the Notes and
Certificates, including any sales, gross receipts, general
corporation, tangible personal property, privilege or license taxes
and costs and expenses in defending against the same.
(b) Subject to Section 10.3, Seller shall indemnify, defend and
hold harmless Issuer, Owner Trustee, Indenture Trustee, the
Certificateholders and the Noteholders and the officers, directors,
employees and agents of Issuer, Owner Trustee and Indenture Trustee
from and against any and all costs, expenses, losses, claims, damages
and liabilities to the extent arising out of, or imposed upon such
Person through or as a result of (i) Seller's willful misfeasance, bad
faith or gross negligence in the performance of its duties under this
Agreement, (ii) Seller's or Issuer's violation of Federal or state
securities laws in connection with the offering and sale of the Notes
and the Certificates or in connection with any application relating to
the Notes or Certificates under any state securities laws and (iii)
the failure of any Receivable conveyed by it to the Trust hereunder,
or the sale of the related Financed Vehicle, to comply with all
requirements of applicable law.
(c) Subject to Section 10.3, Seller shall be liable as primary
obligor for, and shall indemnify, defend and hold harmless Owner
Trustee, Indenture Trustee and their respective officers, directors,
employees and agents from and against any and all costs, expenses,
losses, claims, damages and liabilities arising out of, or incurred in
connection with, the acceptance or performance of the trusts and
duties set forth herein and in the Trust Agreement in the case of
Owner Trustee, and herein and in the Indenture, in the case of
Indenture Trustee, except to the extent that such cost, expense, loss,
claim, damage or liability: (i) in the case of Owner Trustee, shall be
due to the willful misfeasance, bad faith or negligence (except for
errors in judgment) of Owner Trustee, or in the case of Indenture
Trustee, shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of Indenture Trustee; (ii)
in the case of Owner Trustee, shall arise from the breach by Owner
Trustee of any of its representations or warranties set forth in
Section 7.3 of the Trust Agreement; or (iii) in the case of Indenture
Trustee, shall arise from the breach by Indenture Trustee of any of
its representations and warranties set forth in the Indenture. Such
liability shall survive the termination of Issuer, the discharge of
the Notes and Certificates and removal or resignation of such Trustee.
(d) Subject to Section 10.3, Seller shall pay any and all taxes
levied or assessed upon the Issuer or upon all or any part of the
Owner Trust Estate.
Indemnification under this Section shall survive the resignation or removal
of Owner Trustee or Indenture Trustee and the termination of this Agreement
or the Indenture or the Trust Agreement, as applicable, and shall include
reasonable fees and expenses of counsel and other expenses of litigation.
If Seller shall have made any indemnity payments pursuant to this Section
and the Person to or on behalf of whom such payments are made thereafter
shall collect any of such amounts from others, such Person shall promptly
repay such amounts to Seller, without interest.
SECTION 6.4. Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Any Person (a) into which Seller may be merged or
consolidated, (b) which may result from any merger or consolidation to
which Seller shall be a party or (c) which may succeed to the properties
and assets of Seller substantially as a whole, shall be the successor to
Seller without the execution or filing of any document or any further act
by any of the parties to this Agreement; provided that Seller hereby
covenants that it will not consummate any of the foregoing transactions
except upon satisfaction of the following: (i) the surviving Seller if
other than Norwest Auto Receivables Corporation, executes an agreement of
assumption to perform every obligation of Seller under this Agreement, (ii)
immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 3.1 or 6.1 shall have been breached,
(iii) Seller shall have delivered to Owner Trustee and Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply
with this Section and that all conditions precedent, if any, provided for
in this Agreement relating to such transaction have been complied with, and
that the Rating Agency Condition shall have been satisfied with respect to
such transaction, (iv) the surviving Seller shall have a consolidated net
worth at least equal to that of the predecessor Seller, (v) such
transaction will not result in a material adverse federal or state tax
consequence to Issuer, the Noteholders or the Certificateholders and (vi)
unless Norwest Auto Receivables Corporation is the surviving entity, Seller
shall have delivered to Owner Trustee and Indenture Trustee an Opinion of
Counsel either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements and amendments thereto
have been executed and filed that are necessary fully to preserve and
protect the interest of Owner Trustee and Indenture Trustee, respectively,
in the Receivables and reciting the details of such filings, or (B) stating
that, in the opinion of such counsel, no such action shall be necessary to
preserve and protect such interests.
SECTION 6.5. Limitation on Liability of Seller and Others. Seller
and any director or officer or employee or agent of Seller may rely in good
faith on the advice of counsel or on any document of any kind, prima facie
properly executed and submitted by any Person respecting any matters
arising under any Basic Document (provided that such reliance shall not
limit in any way Seller's obligations under Section 3.2). Seller shall not
be under any obligation to appear in, prosecute or defend any legal action
that shall not be incidental to its obligations under this Agreement, and
that in its opinion may involve it in any expense or liability.
SECTION 6.6. Seller May Own Certificates or Notes. Seller and any
Affiliate thereof may in its individual or any other capacity become the
owner or pledgee of Certificates or Notes with the same rights as it would
have if it were not Seller or an Affiliate thereof, except as expressly
provided herein or in any Basic Document. Except as set forth herein or in
the other Basic Documents, Notes and Certificates so owned by or pledged to
Seller or any such Affiliate shall have an equal and proportionate benefit
under the provisions of this Agreement and the other Basic Documents,
without preference, priority, or distinction as among all of the Notes and
Certificates.
ARTICLE VII. SERVICER.
SECTION 7.1. Representations of Servicer. Servicer makes the
following representations on which Issuer is deemed to have relied in
acquiring the Receivables and the other properties and rights included in
the Owner Trust Estate. The representations speak as of the execution and
delivery of the Agreement and shall survive the sale of the Receivables to
Issuer and the pledge thereof to Indenture Trustee pursuant to the
Indenture.
(a) Organization and Good Standing. Servicer has been duly
organized and is validly existing as a national banking association in
good standing under the laws of the United States, with the power and
authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently
conducted, and had at all relevant times, and shall have, the power,
authority and legal right to service the Receivables and the other
properties and rights included in the Owner Trust Estate.
(b) Due Qualification. Servicer shall be duly qualified to do
business as a foreign corporation in good standing, and shall have
obtained all necessary licenses and approvals in all jurisdictions in
which the ownership or lease of property or the conduct of its
business (including the servicing of the Receivables as required by
this Agreement) shall require such qualifications.
(c) Power and Authority. Servicer has the power, authority and
legal right to execute and deliver this Agreement and the Basic
Documents and to carry out their respective terms; and the execution,
delivery and performance of this Agreement and the Basic Documents has
been duly authorized by Servicer by all necessary corporate action.
(d) No Consent Required. No approval, authorization, consent,
license or other order or action of, or filing or registration with,
any governmental authority, bureau or agency is required in connection
with the execution, delivery or performance of this Agreement, the
Basic Documents or the consummation of the transactions contemplated
hereby or thereby.
(e) Binding Obligation. Each of this Agreement and the Basic
Documents constitutes a legal, valid and binding obligation of
Servicer, enforceable against Servicer in accordance with its
respective terms, subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization, conservatorship, receivership,
liquidation and other similar laws affecting enforcement of the rights
of creditors of banks generally and to equitable limitations on the
availability of specific remedies.
(f) No Violation. The execution, delivery and performance by
Servicer of this Agreement and the Basic Documents and the
consummation of the transactions contemplated hereby and thereby will
not conflict with, result in any material breach of any of the terms
and provisions of, constitute (with or without notice or lapse of
time) a material default under, or result in the creation or
disposition of any Lien upon any of its material properties pursuant
to the terms of, (i) the articles of association or bylaws of
Servicer, (ii) any material indenture, contract, lease, mortgage, deed
of trust or other instrument or agreement to which Servicer is a party
or by which Servicer is bound, or (iii) any law, order, rule or
regulation applicable to Servicer of any federal or state regulatory
body, any court, administrative agency, or other governmental
instrumentality having jurisdiction over Servicer.
(g) No Proceedings. There are no proceedings or investigations
pending, or, to Servicer's knowledge, threatened, before any court,
regulatory body, administrative agency, or tribunal or other
governmental instrumentality having jurisdiction over Servicer or its
properties: (i) asserting the invalidity of this Agreement, any other
Basic Document, the Notes or the Certificates, (ii) seeking to prevent
the issuance of the Certificates or the Notes or the consummation of
any of the transactions contemplated by this Agreement or any other
Basic Document, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by Servicer of its
obligations under, or the validity or enforceability of, this
Agreement, any other Basic Document, the Notes or the Certificates, to
the extent applicable, or (iv) that may materially and adversely
affect the federal or state income, excise, franchise or similar tax
attributes of the Certificates.
(h) Licenses. Servicer has obtained all licenses, permits and
approvals in each jurisdiction as necessary to perform its obligations
under the Basic Documents.
SECTION 7.2. Indemnities of Servicer. (a) Servicer shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by Servicer under this Agreement.
(b) Subject to Section 10.3, Servicer shall indemnify, defend and hold
harmless Issuer, Owner Trustee, Indenture Trustee, the Certificateholders
and the Noteholders and any of the officers, directors, employees and
agents of Issuer, Owner Trustee or Indenture Trustee from any and all
costs, expenses, losses, claims, damages and liabilities (including
reasonable attorneys' fees and expenses) to the extent arising out of, or
imposed upon any such Person through, the gross negligence, willful
misfeasance or bad faith of Servicer in the performance of its obligations
and duties under this Agreement or in the performance of the obligations
and duties of any subservicer under any subservicing agreement, where the
final determination that any such cost, expense, loss, claim, damage or
liability arose out of, or was imposed upon any such Person through, any
such gross negligence, willful misfeasance, or bad faith on the part of
Servicer or any subservicer, is established by a court of law, by an
arbitrator or by way of settlement agreed to by Servicer. Notwithstanding
the foregoing, if Servicer is rendered unable, in whole or in part, by
virtue of an act of God, act of war, fires, earthquake or other natural
disasters, to satisfy its obligations under this Agreement, Servicer shall
not be deemed to have breached any such obligation upon the sending of
written notice of such event to the other parties hereto, for so long as
Servicer remains unable to perform such obligation as a result of such
event. This provision shall not be construed to limit Servicer's or any
other party's rights, obligations, liabilities, claims or defenses which
arise as a matter of law or pursuant to any other provision of this
Agreement.
(c) Subject to Section 10.3,Servicer shall indemnify, defend and hold
harmless Issuer, Owner Trustee, and Indenture Trustee and their respective
officers, directors, employees and agents from and against any taxes that
may at any time be asserted against any such Person with respect to the
transactions contemplated in this Agreement or in the other Basic
Documents, including any sales, gross receipts, general corporation,
tangible or intangible personal property, privilege, or license taxes, or
any taxes of any kind which may be asserted against the Issuer, and costs
and expenses in defending against the same.
(d) Subject to Section 10.3, Servicer shall indemnify, defend and hold
harmless Issuer, Owner Trustee, Indenture Trustee, Certificateholders and
the Noteholders or any of the officers, directors, employees and agents of
Issuer, Owner Trustee or Indenture Trustee from any and all costs,
expenses, losses, claims, damages and liabilities (including reasonable
attorneys' fees and expenses) to the extent arising out of or imposed upon
any such Person as a result of any compensation payable to any subcustodian
or subservicer (including any fees payable in connection with the release
of any Receivable File from the custody of such subservicer or in
connection with the termination of the servicing activities of such
subservicer with respect to any Receivable) whether pursuant to the terms
of any subservicing agreement or otherwise.
(e) Subject to Section 10.3, Servicer shall indemnify, defend and
hold harmless Issuer, Owner Trustee, Indenture Trustee, the
Certificateholders and the Noteholders or any of the directors, officers,
employees and agents of Issuer, Owner Trustee, and Indenture Trustee from
and against any and all costs, expenses, losses, damages, claims and
liabilities, including reasonable fees and expenses of counsel and expenses
of litigation, arising out of or resulting from (i) the making of a Force
Placed Insurance Advance or force placing any insurance policy or (ii) the
use, ownership, or operation by Servicer or any Affiliate thereof of any
Financed Vehicle.
Indemnification under this Section shall survive the resignation or removal
of Owner Trustee or Indenture Trustee and the termination of this Agreement
or the Indenture or the Trust Agreement, as applicable, and shall include
reasonable fees and expenses of counsel and other expenses of litigation.
If Servicer shall have made any indemnity payments pursuant to this Section
and the Person to or on behalf of whom such payments are made thereafter
shall collect any of such amounts from others, such Person shall promptly
repay such amounts to Servicer, without interest.
SECTION 7.3. Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person (a) into which Servicer may be merged
or consolidated, (b) which may result from any merger or consolidation to
which Servicer shall be a party, (c) which may succeed to the properties
and assets of Servicer, substantially as a whole, or (d) 50% of the voting
stock of which is owned directly or indirectly by Norwest Corporation,
shall be the successor to Servicer without the execution or filing of any
document or any further act by any of the parties to this Agreement;
provided that Servicer hereby covenants that it will not consummate any of
the foregoing transactions except upon satisfaction of the following: (i)
the surviving Servicer if other than Norwest Bank, executes an agreement of
assumption to perform every obligation of Servicer under this Agreement,
(ii) immediately after giving effect to such transaction, no representation
or warranty made pursuant to Section 7.1 shall have been breached and no
Servicer Termination Event, and no event that, after notice or lapse of
time, or both, would become a Servicer Termination Event shall have
occurred and be continuing, (iii) Servicer shall have delivered to Owner
Trustee and Indenture Trustee an Officers' Certificate and an Opinion of
Counsel each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section and that all conditions
precedent, if any, provided for in this Agreement relating to such
transaction have been complied with, and that the Rating Agency Condition
shall have been satisfied with respect to such transaction, (iv) the
surviving Servicer shall have a consolidated net worth at least equal to
that of the predecessor Servicer, and (v) such transaction will not result
in a material adverse Federal or state tax consequence to Issuer, the
Noteholders or the Certificateholders.
SECTION 7.4. Limitation on Liability of Servicer and Others. Neither
Servicer nor any of its directors, officers, employees or agents shall be
under any liability to Issuer, the Noteholders or the Certificateholders,
except as provided under this Agreement, for any action taken or for
refraining from the taking of any action by Servicer or any subservicer
pursuant to this Agreement or for errors in judgment; provided that this
provision shall not protect Servicer or any such person against any
liability that would otherwise be imposed by reason of willful misfeasance,
bad faith or gross negligence in the performance of duties under this
Agreement. Servicer or any subservicer and any of their respective
directors, officers, employees or agents may rely in good faith on any
document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising under this Agreement.
Except as provided in this Agreement, Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action that shall be
incidental to its duties to service the Receivables in accordance with this
Agreement, and that in its opinion may involve it in any expense or
liability; provided that Servicer, may (but shall not be required to)
undertake any reasonable action that it may deem necessary or desirable in
respect of the Basic Documents to protect the interests of the
Certificateholders under this Agreement and the Noteholders under the
Indenture.
SECTION 7.5. Norwest Bank Not To Resign as Servicer. Subject to the
provisions of Section 7.3, Norwest Bank hereby agrees not to resign from
the obligations and duties hereby imposed on it as Servicer under this
Agreement except upon determination that the performance of its duties
hereunder shall no longer be permissible under applicable law or if such
resignation is required by regulatory authorities. Notice of any such
determination permitting the resignation of Norwest Bank, as Servicer shall
be communicated to Owner Trustee and Indenture Trustee at the earliest
practicable time (and, if such communication is not in writing, shall be
confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to Owner Trustee and Indenture Trustee concurrently with or
promptly after such notice. No such resignation shall become effective
until the earlier of Indenture Trustee or a Successor Servicer having
assumed the responsibilities and obligations of the resigning Servicer in
accordance with Section 8.2 or the date upon which any regulatory authority
requires such resignation.
SECTION 7.6. Existence. Subject to the provisions of Section 7.3,
during the term of this Agreement, Norwest Bank, will keep in full force
and effect its existence, rights and franchises as a national banking
association under the laws of the jurisdiction of its organization.
SECTION 7.7. Servicer May Own Notes or Certificates. The Servicer,
and any Affiliate of the Servicer, may, in its individual or any other
capacity, become the owner or pledgee of Notes or Certificates with the
same rights as it would have if it were not the Servicer or an Affiliate
thereof, except as expressly provided herein or in any Basic Document.
Except as set forth herein or in the other Basic Documents, Notes and
Certificates so owned by or pledged to Servicer or any such Affiliate shall
have an equal and proportionate benefit under the provisions of this
Agreement and the other Basic Documents, without preference, priority, or
distinction as among all of the Notes and Certificates.
ARTICLE VIII. DEFAULT.
SECTION 8.1. Servicer Termination Event. If any one of the following
events (a "Servicer Termination Event") shall occur and be continuing:
(a) any failure by the Servicer to deliver to Indenture Trustee
and Owner Trustee the Servicer's Report in accordance with Section
4.9, or any failure by Servicer or Seller to deliver to Indenture
Trustee or Owner Trustee for deposit in any of the Trust Accounts or
the Certificate Distribution Account any required payment or to direct
Indenture Trustee or Owner Trustee to make any required distributions
therefrom that shall continue unremedied for a period of five Business
Days after written notice of such failure is received by Servicer from
Owner Trustee or Indenture Trustee or after discovery of such failure
by an Authorized Officer of Servicer; or
(b) failure on the part of Servicer or Seller duly to observe
or to perform in any material respect any other covenants or
agreements of Servicer or Seller, as applicable, set forth in this
Agreement or any other Basic Document, which failure shall (i)
materially and adversely affect the rights of either the
Certificateholders or Noteholders and (ii) continue unremedied for a
period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given (A)
to Servicer by Owner Trustee or Indenture Trustee or (B) to Servicer
and to Owner Trustee and Indenture Trustee by the Holders of Notes
evidencing not less than 25% of the Outstanding Amount of the Notes or
Holders of Certificates evidencing not less than 25% of the
outstanding Certificate Balance, as applicable (or for such longer
period, not in excess of 120 days, as may be reasonably necessary to
remedy such default; provided that such default is capable of remedy
within 120 days and Servicer delivers an Officers' Certificate to
Owner Trustee and Indenture Trustee to such effect and to the effect
that Servicer or Seller, as applicable, has commenced or will promptly
commence, and will diligently pursue, all reasonable efforts to remedy
such default); or
(c) an Insolvency Event occurs with respect to Servicer,
Seller, any Seller Affiliate or any of their respective successors;
then, and in each and every case, so long as any Servicer Termination Event
shall not have been remedied, either Indenture Trustee, or the Holders of
Notes evidencing greater than 50% of the Outstanding Amount of the Notes
(or, if no Notes are then Outstanding, either the Owner Trustee or the
Holders of Certificates evidencing greater than 50% of the Certificate
Balance), by notice then given in writing to Servicer (and to Owner Trustee
or Indenture Trustee, as applicable, if given by the Holders) may terminate
all the rights and obligations (other than the obligations set forth in
Section 7.2) of Servicer under this Agreement. On or after the receipt by
Servicer of such written notice, all authority and power of Servicer under
this Agreement, whether with respect to the Notes, the Certificates or the
Receivables or otherwise, shall, without further action, pass to and be
vested in Indenture Trustee or such successor Servicer as may be appointed
under Section 8.2; and, without limitation, Indenture Trustee and Owner
Trustee are hereby authorized and empowered to execute and deliver, on
behalf of the predecessor Servicer, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of
the Receivables and related documents, or otherwise. The predecessor
Servicer shall cooperate with the successor Servicer, Indenture Trustee and
Owner Trustee in effecting the termination of the responsibilities and
rights of the predecessor Servicer under this Agreement, including the
transfer to the successor Servicer for administration by it of all cash
amounts that shall at the time be held by the predecessor Servicer for
deposit, or shall thereafter be received by it with respect to a
Receivable. Servicer shall promptly transfer its electronic records
relating to the Receivables to the Successor Servicer in such electronic
form as the Successor Servicer may reasonably request and shall promptly
transfer to the Successor Servicer all other records, correspondence and
documents necessary for the continued servicing of the Receivables in the
manner and at such times as the Successor Servicer shall reasonably
request. All reasonable costs and expenses (including attorneys' fees)
incurred in connection with transferring the Receivable Files to the
successor Servicer and amending this Agreement to reflect such succession
as Servicer pursuant to this Section shall be paid by the predecessor
Servicer upon presentation of reasonable documentation of such costs and
expenses. Upon receipt of notice of the occurrence of a Servicer
Termination Event, Indenture Trustee shall give notice thereof to the
Rating Agencies.
SECTION 8.2. Appointment of Successor. (a) Upon Servicer's receipt
of notice of termination, pursuant to Section 8.1 in accordance with the
terms of this Agreement, the predecessor Servicer shall continue to perform
its functions as Servicer under this Agreement, in the case of termination,
only until the date specified in such termination notice or, if no such
date is specified in a notice of termination, until receipt of such notice
and, in the case of resignation, until the earlier of (i) the date 45 days
from the delivery to Owner Trustee and Indenture Trustee of written notice
of such resignation (or written confirmation of such notice) in accordance
with the terms of this Agreement and (ii) the date upon which the
predecessor Servicer shall become unable to act as Servicer, as specified
in the notice of resignation and accompanying Opinion of Counsel. In the
event of Servicer's termination hereunder, Issuer shall appoint a successor
Servicer, and the successor Servicer shall accept its appointment by an
appropriate instrument of assumption. In the event that a successor
Servicer has not been appointed at the time when the predecessor Servicer
has ceased to act as Servicer in accordance with this Section, Indenture
Trustee without further action shall automatically be appointed the
successor Servicer and Indenture Trustee shall be entitled to the Servicing
Fee. Notwithstanding the above, Indenture Trustee shall, if it shall be
unwilling or unable so to act, appoint or petition a court of competent
jurisdiction to appoint, any established institution, having a net worth of
not less than $50,000,000 and whose regular business shall include the
servicing of automotive receivables, as the successor to Servicer under
this Agreement; provided, that the appointment of any such successor
Servicer will not result in the withdrawal or reduction of the outstanding
rating assigned to the Certificates or Notes by any Rating Agency.
(b) Upon appointment, the successor Servicer (including Indenture
Trustee acting as successor servicer) shall be the successor in all
respects to the predecessor Servicer and shall be subject to all the
responsibilities, duties and liabilities arising thereafter relating
thereto placed on the predecessor Servicer and shall be entitled to the
Servicing Fee and all the rights granted to the predecessor Servicer by the
terms and provisions of this Agreement. No successor Servicer shall be
liable for any acts or omissions of any predecessor Servicer.
(c) Norwest Bank Minnesota, N.A. may not resign as Servicer unless it
is prohibited from serving as such by law or by requirement of any
regulatory authority.
(d) A transfer of servicing hereunder shall not affect the rights and
duties of the parties hereunder (including the obligations and indemnities
of Seller pursuant to Sections 3.3, 4.3, 6.1 and 6.3 or, with respect to
obligations and indemnities arising prior to, or concurrently with, a
transfer of servicing hereunder, the outgoing Servicer pursuant to Section
4.8, 7.1 or 7.2) other than those relating to the management,
administration, servicing, custody or collection of the Receivables and the
other rights and properties included in the Owner Trust Estate. The
successor Servicer shall, upon its appointment pursuant to Section 8.2 and
as part of its duties and responsibilities under this Agreement, promptly
take all action it deems necessary or appropriate so that the outgoing
Servicer (in whatever capacity) is paid or reimbursed all amounts it is
entitled to receive under this Agreement on each Transfer Date subsequent
to the date on which it is terminated as Servicer hereunder. Without
limiting the generality of the foregoing, the outgoing Servicer will be
entitled to receive all accrued and unpaid Servicing Fees through and
including, and to be reimbursed for all Outstanding Advances as of, the
effective date of the termination of the outgoing Servicer.
SECTION 8.3. Payment of Servicing Fee. If Servicer shall be
replaced, the predecessor Servicer shall be entitled to receive any accrued
and unpaid Servicing Fees through the date of the successor Servicer's
acceptance hereunder in accordance with Section 4.8.
SECTION 8.4. Notification to Noteholders and Certificateholders.
Upon any termination of, or appointment of a successor to, Servicer
pursuant to this Article VIII, Owner Trustee shall give prompt written
notice thereof to Certificateholders and Indenture Trustee shall give
prompt written notice thereof to Noteholders subject to the Rating Agency
Condition.
SECTION 8.5. Waiver of Past Defaults. The Holders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes
(or the Holders of Certificates evidencing not less than a majority of the
outstanding Certificate Balance, as applicable, in the case of any default
which does not adversely affect Indenture Trustee or the Noteholders) may,
on behalf of all Noteholders and Certificateholders, waive in writing any
default by Servicer in the performance of its obligations hereunder and its
consequences, except a default in making any required deposits to or
payments from any of the Trust Accounts in accordance with this Agreement.
Upon any such waiver of a past default, such default shall cease to exist,
and any Servicer Termination Event arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver
shall extend to any subsequent or other default or impair any right
consequent thereto.
ARTICLE IX. TERMINATION.
SECTION 9.1. Optional Purchase of All Receivables. (a) On the last
day of any Collection Period as of which the then outstanding Pool Balance
is 5% or less of the Initial Pool Balance, Seller and Servicer shall each
have the option to purchase the Owner Trust Estate, other than the Trust
Accounts, the Certificate Distribution Account and any funds or investments
therein. To exercise such option, Seller or Servicer, as applicable, shall
deposit pursuant to Section 5.4 in the Collection Account an amount which,
when added to the amounts on deposit in the Collection Account for such
Transfer Date, equals the sum of (a) the unpaid principal amount of the
then outstanding Class A-4 Notes, plus accrued and unpaid interest thereon,
plus (b) the Certificate Balance plus accrued and unpaid interest thereon.
The Class A-4 Notes and the Certificates will be redeemed concurrently
therewith.
(b) Upon any sale of the assets of Issuer pursuant to Section 9.2 of
the Trust Agreement, Servicer shall instruct Indenture Trustee in writing
to deposit the proceeds from such sale after all payments and reserves
therefrom (including the expenses of such sale) have been made or provided
for (the "Insolvency Proceeds") in the Collection Account. On the
Distribution Date on which the Insolvency Proceeds are deposited in the
Collection Account (or, if such proceeds are not so deposited on a
Distribution Date, on the Distribution Date immediately following such
deposit), Servicer shall instruct Indenture Trustee in writing to make, and
Indenture Trustee shall make, the following deposits and distributions
(after the application on such Distribution Date of the Total Distribution
Amount pursuant to Section 5.5) from the Insolvency Proceeds and any funds
remaining on deposit in the Reserve Account (including the proceeds of any
sale of investments therein):
(i) to the Note Distribution Account, any portion of the
Noteholders' Interest Distributable Amount not otherwise deposited
into the Note Distribution Account on such Distribution Date;
(ii) to the Note Distribution Account, the outstanding principal
balance of the Notes (after giving effect to the reduction in the
outstanding principal balance of the Notes to result from the deposits
made in the Note Distribution Account on such Distribution Date);
(iii) to Owner Trustee for deposit in the Certificate
Distribution Account, any portion of the Certificateholders' Interest
Distributable Amount not otherwise deposited into the Certificate
Distribution Account on such Distribution Date; and
(iv) to Owner Trustee for deposit in the Certificate
Distribution Account, the Certificate Balance and any
Certificateholders' Principal Carryover Shortfall (after giving effect
to the reduction in the Certificate Balance to result from the
deposits made in the Certificate Distribution Account on such
Distribution Date).
Any Insolvency Proceeds remaining after the deposits described above and
payment of any amounts then due and payable to the Indenture Trustee and
the Owner Trustee shall be paid to Seller.
(c) Notice of any termination of Issuer shall be given by Servicer to
Owner Trustee, Indenture Trustee and the Rating Agencies as soon as
practicable after Servicer has received notice thereof.
(d) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder
and Owner Trustee will succeed to the rights of, and assume the obligations
of, Indenture Trustee pursuant to this Agreement.
ARTICLE X. MISCELLANEOUS PROVISIONS.
SECTION 10.1. Amendment. (a) This Agreement may be amended by
Seller, Servicer and Owner Trustee, with the consent of Indenture Trustee
(which consent may not be unreasonably withheld), but without the consent
of any of the Noteholders or the Certificateholders:
(i) to cure any ambiguity or defect, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions in this
Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; provided that such action shall not, as evidenced
by an Opinion of Counsel delivered to Owner Trustee and Indenture Trustee,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder;
(ii) to enable all or a portion of Issuer to qualify as a partnership
for federal income tax purposes under applicable regulations on the
classification of entities as partnerships or corporations under the Code
adopted as final regulations, and to the extent such regulations eliminate
or modify the need therefor, to modify or eliminate such provisions
relating to the intended availability of partnership treatment of Issuer
for federal income tax purposes; it being a condition to any such amendment
that each Rating Agency shall have notified the Seller, the Servicer and
the Owner Trustee in writing that the amendment will not result in a
reduction or withdrawal of the rating of any outstanding Notes or
Certificates with respect to which it is a Rating Agency;
(iii) (A) to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable all or a portion of Issuer to
qualify as, and to permit an election to be made to cause all or a portion
of Issuer to be treated as, a "financial asset securitization investment
trust" as described in the provisions of the "Small Business Job Protection
Act of 1996," or to enable all or a portion of the Trust to qualify and an
election to be made for similar treatment under such comparable subsequent
federal income tax provisions as may ultimately be enacted into law, and
(B) in connection with any such election, to modify or eliminate existing
provisions set forth in this Agreement relating to the intended federal
income tax treatment of the Notes or Certificates and Issuer in the absence
of the election; it being a condition to any such amendment that each
Rating Agency shall have notified the Seller, the Servicer and the Owner
Trustee in writing that the amendment will not result in a reduction or
withdrawal of the rating of any outstanding Notes or Certificates with
respect to which it is a Rating Agency; and
(iv) to add, modify or eliminate such provisions as may be necessary
or advisable in order to enable (a) the transfer to Issuer of all or any
portion of the Receivables to be derecognized under GAAP by Seller to
Issuer, (b) Issuer to avoid becoming a member of Seller's consolidated
group under GAAP or (c) the Seller, any Seller Affiliate or any of their
Affiliates to otherwise comply with or obtain more favorable treatment
under any law or regulation or any accounting rule or principle; it being a
condition to any such amendment that each Rating Agency shall have notified
the Seller, the Servicer and the Owner Trustee in writing that the
amendment will not result in a reduction or withdrawal of the rating of any
outstanding Notes or Certificates with respect to which it is a Rating
Agency.
(b) This Agreement may also be amended from time to time by Seller,
Servicer and Owner Trustee, with the consent of Indenture Trustee, the
consent of the Holders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes and the consent of the Holders of
Certificates evidencing not less than a majority of the Certificate Balance
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; provided
that no such amendment shall (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Receivables or distributions that shall be required to be made for the
benefit of the Noteholders or the Certificateholders or (ii) reduce the
aforesaid percentage of the Outstanding Amount of the Notes and the
Certificate Balance, the Holders of which are required to consent to any
such amendment, without the consent of the Holders of all the outstanding
Notes and the Holders of all the outstanding Certificates of each class
affected thereby.
(c) Prior to the execution of any such amendment or consent,
Servicer shall furnish written notification of the substance of such
amendment or consent to each Rating Agency. Promptly after the execution of
any such amendment or consent, Servicer shall furnish written notification
the substance of such amendment or consent to each Certificateholder and
Indenture Trustee.
(d) It shall not be necessary for the consent of Certificateholders
or Noteholders pursuant to this Section to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such
consent shall approve the substance thereof.
(e) Prior to the execution of any amendment to this Agreement, Owner
Trustee and Indenture Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions precedent
to the execution and delivery of such amendment have been satisfied and the
Opinion of Counsel referred to in Section 10.2(i)(1) has been delivered.
Owner Trustee and Indenture Trustee may, but shall not be obligated to,
enter into any such amendment which affects Owner Trustee's or Indenture
Trustee's, as applicable, own rights, duties or immunities under this
Agreement or otherwise.
SECTION 10.2. Protection of Title to Trust Property. (a) Seller
shall execute and file such financing statements and cause to be executed
and filed such continuation statements, all in such manner and in such
places as may be required by law fully to preserve, maintain and protect
the interest of Issuer and the interests of Indenture Trustee in the
Receivables and the proceeds thereof. Seller shall deliver (or cause to be
delivered) to Owner Trustee and Indenture Trustee file-stamped copies of,
or filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) Neither Seller nor Servicer shall change its name, identity or
corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of 9-402(7)
of the UCC, unless it shall have given Owner Trustee and Indenture Trustee
at least five days' prior written notice thereof and shall have promptly
filed appropriate amendments to all previously filed financing statements
or continuation statements.
(c) Each of Seller and Servicer shall have an obligation to give
Owner Trustee and Indenture Trustee at least 60 days' prior written notice
of any relocation of its principal executive office if, as a result of such
relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any
such amendment or new financing statement. Servicer shall at all times
maintain each office from which it shall service Receivables, and its
principal executive office, within the United States of America.
(d) Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each)
and (ii) reconciliation between payments or recoveries on (or with respect
to) each Receivable and the amounts from time to time deposited in the
Collection Account in respect of such Receivable.
(e) Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables, Servicer's
master computer records (including any backup archives) that refer to a
Receivable shall indicate clearly the interest of Issuer and Indenture
Trustee in such Receivable and that such Receivable is owned by Issuer and
has been pledged to Indenture Trustee pursuant to the Indenture. Indication
of Issuer's and Indenture Trustee's interest in a Receivable shall be
deleted from or modified on Servicer's computer systems when, and only
when, the related Receivable shall have been paid in full or repurchased by
Seller or purchased by Servicer.
(f) If at any time Seller or Servicer shall propose to sell, grant a
security interest in or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee,
Servicer shall give to such prospective purchaser, lender or other
transferee computer tapes, records or printouts (including any restored
from backup archives) that, if they shall refer in any manner whatsoever to
any Receivable, shall indicate clearly that such Receivable has been sold
and is owned by Issuer and has been pledged to Indenture Trustee.
(g) Servicer shall permit Indenture Trustee and its agents at any
time during normal business hours to inspect, audit and make copies of and
abstracts from Servicer's records regarding any Receivable.
(h) Upon request at any time Owner Trustee or Indenture Trustee shall
have reasonable grounds to believe that such request is necessary in
connection with the performance of its duties under this Agreement or any
of the Basic Documents, Servicer shall furnish to Owner Trustee or to
Indenture Trustee, within five Business Days, a list of all Receivables (by
contract number and name of Obligor) then owned by Issuer, together with a
reconciliation of such list to the Schedule of Receivables and to each of
Servicer's Reports furnished before such request indicating removal of
Receivables from Issuer.
(i) Servicer shall deliver to Owner Trustee and Indenture Trustee:
(1) promptly after the execution and delivery of this Agreement
and of each amendment thereto, an Opinion of Counsel either (A)
stating that, in the opinion of such counsel, all financing statements
and continuation statements have been executed and filed that are
necessary fully to preserve and protect the interest of Owner Trustee
and Indenture Trustee in the Receivables, and reciting the details of
such filings or referring to prior Opinions of Counsel in which such
details are given, or (B) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and protect
such interest; and
(2) within 120 days after the beginning of each calendar year
beginning with the first calendar year beginning more than three
months after the Cutoff Date, an Opinion of Counsel, dated as of a
date during such 120-day period, either (A) stating that, in the
opinion of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary fully to
preserve and protect the interest of Owner Trustee and Indenture
Trustee in the Receivables, and reciting the details of such filings
or referring to prior Opinions of Counsel in which such details are
given, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interest.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify any action necessary (as of the date of such opinion) to be taken
in the following year to preserve and protect such interest.
(j) Seller shall, to the extent required by applicable law, cause the
Certificates and the Notes to be registered with the Commission pursuant to
Section 12(b) or Section 12(g) of the Exchange Act within the time periods
specified in such sections.
SECTION 10.3. Litigation and Indemnities. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim
or demand shall be brought or asserted against any Person in respect of
which indemnity may be sought pursuant to Sections 6.3 or 7.2, such Person
(the "Indemnified Person") shall promptly notify the person against whom
such indemnity may be sought (the "Indemnifying Person") in writing, and
the Indemnifying Person, upon request of the Indemnified Person, shall
retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the reasonable fees and expenses
of such counsel related to such proceeding. The Indemnifying Person shall
not be liable for any settlement of any claim or proceeding effected
without its written consent, but if settled with such consent or if there
be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
SECTION 10.4. Notices. All demands, notices and communications upon
or to Seller, Servicer, Owner Trustee, Indenture Trustee or the Rating
Agencies under this Agreement shall be in writing, personally delivered,
sent by overnight courier or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in
the case of Seller, to Norwest Auto Receivables Corporation, Norwest
Center, Sixth and Marquette, Minneapolis, Minnesota, 55479-1026, Attention:
Corporate Secretary, (b) in the case of Servicer, to Norwest Bank
Minnesota, N.A., Norwest Center, Sixth and Marquette, Minneapolis,
Minnesota, 55479-0070, Attention: Manager, Corporate Trust Services
Asset-Backed Securities Division, (c) in the case of Issuer or Owner
Trustee, at the Corporate Trust Office, (d) in the case of Indenture
Trustee, at the Corporate Trust Office, (e) in the case of Moody's, to
Moody's Investors Service, Inc., to 99 Church Street, New York, New York
10004, Attention of Asset Backed Securities Group, and (f) in the case of
Standard & Poor's, to Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., 26 Broadway (15th Floor), New York, New York
10004, Attention of Asset Backed Surveillance Department.
SECTION 10.5. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 3.4, 4.1, 6.4 and 7.3 and
as provided in the provisions of this Agreement concerning the resignation
of Servicer, this Agreement may not be assigned by Seller or Servicer
without the prior written consent of the Owner Trustee, the Noteholders of
Notes evidencing not less than 66 2/3% of Outstanding Amount of the Notes
and the Certificateholders evidencing not less than 66 2/3% of the
outstanding Certificate Balance.
SECTION 10.6. Limitations on Rights of Others. The provisions of
this Agreement are solely for the benefit of Seller, Servicer, Issuer,
Owner Trustee and for the benefit of the Certificateholders (including
Seller), Indenture Trustee and the Noteholders, as third-party
beneficiaries, and nothing in this Agreement, whether express or implied,
shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
SECTION 10.7. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
create or render unenforceable such provision in any other jurisdiction.
SECTION 10.8. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 10.9. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 10.10. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS; EXCEPT
THAT THE GRANT OF A SECURITY INTEREST IN THE RESERVE ACCOUNT PROPERTY AND
THE PERFECTION, EFFECT OF PERFECTION, AND PRIORITY OF SUCH SECURITY
INTEREST SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA.
SECTION 10.11. Assignment to Indenture Trustee. Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant of
a security interest by Issuer to Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of all right, title and
interest of Issuer in, to and under the Receivables and/or the assignment
of any or all of Issuer's rights and obligations hereunder to Indenture
Trustee.
SECTION 10.12. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, Servicer and Seller shall not, prior to the
date which is one year and one day after the termination of this Agreement
with respect to Issuer, acquiesce, petition or otherwise invoke or cause
Issuer to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against Issuer under any Federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of Issuer or any substantial part of its property, or ordering the
winding up or liquidation of the affairs of Issuer.
SECTION 10.13. Limitation of Liability of Owner Trustee and Indenture
Trustee. (a) Notwithstanding anything contained herein to the contrary,
this Agreement has been countersigned by Wilmington Trust Company not in
its individual capacity but solely in its capacity as Owner Trustee of
Issuer and in no event shall Wilmington Trust Company in its individual
capacity or, except as expressly provided in the Trust Agreement, as Owner
Trustee have any liability for the representations, warranties, covenants,
agreements or other obligations of Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of Issuer. For all
purposes of this Agreement, in the performance of its duties or obligations
hereunder or in the performance of any duties or obligations of Issuer
hereunder, Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by The Chase Manhattan Bank not in its
individual capacity but solely as Indenture Trustee and in no event shall
The Chase Manhattan Bank have any liability for the representations,
warranties, covenants, agreements or other obligations of Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant
hereto, as to all of which recourse shall be had solely to the assets of
Issuer.
SECTION 10.14. Further Assurances. Seller and the Servicer agree to
do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by Owner Trustee
or Indenture Trustee more fully to effect the purposes of this Agreement
including, without imitation, the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
SECTION 10.15. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Owner Trustee,
Indenture Trustee, the Noteholders or the Certificateholders, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges therein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective duly authorized officers
as of the day and year first above written.
NORWEST AUTO TRUST 1996-A
By: WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as Owner Trustee
By: /s/ Emmett R. Harmon
------------------------------------------
Name: Emmett R. Harmon
Title: Vice President
NORWEST AUTO RECEIVABLES CORPORATION,
Seller,
By: /s/ Joseph Ernst
-------------------------------------------
Name: Joseph Ernst
Title: Vice President
NORWEST BANK MINNESOTA, N.A.,
Servicer,
By: /s/ Marianna C. Stershic
-------------------------------------------
Name: Marianna C. Stershic
Title: Corporate Trust Officer
THE CHASE MANHATTAN BANK, not in its individual
capacity but solely as Indenture Trustee
By: /s/ James J. Fevola
-------------------------------------------
Name: James J. Fevola
Title: Second Vice President
<PAGE>
Acknowledged and Agreed solely as
to the last sentence of Section 3.3
hereof:
NORWEST CORPORATION, a Delaware
corporation
By /s/ John T. Thornton
--------------------------------------------------------------
Name: John T. Thornton
Title: Executive Vice President and Chief Financial Officer
<PAGE>
SCHEDULE A
The Receivables sold by each Seller Affiliate to Seller and sold by Seller
to Issuer are located at the offices of such Seller Affiliate listed
opposite its name below:
Norwest Bank Illinois, N.A.
Norwest Bank Indiana, N.A.
Norwest Bank Iowa, N.A.
Norwest Bank LaCrosse, N.A.
Norwest Bank Minnesota North, N.A.
Norwest Bank Minnesota South, N.A.
Norwest Bank Minnesota West, N.A.
Norwest Bank Minnesota, N.A.
Norwest Bank Nebraska, N.A.
Norwest Bank North Dakota, N.A.
Norwest Bank Ohio, N.A.
Norwest Bank Red Wing, N.A.
Norwest Bank South Dakota, N.A.
Norwest Bank Wisconsin, N.A.
<PAGE>
APPENDIX X
DEFINITIONS
"Act" is defined in Section 11.3(a) of the Indenture.
"Administrative Agent" means Norwest Auto Receivables Corporation.
"Administrative Agent Agreement" means the Administrative Agent
Agreement among the Administrative Agent, the Issuer and the Indenture
Trustee, as the same may be amended and supplemented from time to time.
"Administrator" means Wilmington Trust Company and each successor
Administrator.
"Administration Agreement" means the Administration Agreement among
Wilmington Trust Company, as Administrator, Norwest Auto Trust 1996-A, as
Issuer, and The Chase Manhattan Bank, as Indenture Trustee, as the same may
be amended and supplemented from time to time.
"Advances" means, with respect to any Transfer Date, the amount
advanced or required to be advanced by Servicer on the related Deposit Date
pursuant to Section 5.3 of the Sale and Servicing Agreement.
"Affiliate" means, with respect to any specified Person, any other
Person controlling, controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing. A Person shall not be deemed to be an Affiliate of any specified
Person solely because such other Person has the contractual right or
obligation to manage such specified Person or act as servicer with respect
to the financial assets of such specified Person unless such other Person
controls the specified Person through equity ownership or otherwise.
"Affiliate Security Agreement" means the agreement dated as of
November 13, 1996 between each Seller Affiliate and Issuer under which each
such Seller Affiliate grants a security interest in its Receivables and
certain other property described therein to Issuer.
"Aggregate Net Losses" means, for any Collection Period, the aggregate
amount allocable to principal of all Receivables newly designated during
such Collection Period as Defaulted Receivables minus all Recoveries
collected during such Collection Period with respect to all Defaulted
Receivables (whether or not newly designated as such).
"Authenticating Agent" is defined in Section 2.13 of the Indenture.
"Authorized Officer" means, with respect to Issuer and Servicer, any
officer of Owner Trustee or Servicer, as applicable, who is authorized to
act for Owner Trustee or Servicer, as applicable, in matters relating to
Issuer and who is identified on the list of Authorized Officers delivered
by each of Owner Trustee and Servicer to Indenture Trustee on the Closing
Date (as such list may be modified or supplemented from time to time
thereafter).
"Available Interest" means, with respect to any Transfer Date, the
excess of (a) the sum of (i) Interest Collections for such Transfer Date
and (ii) all Advances made by Servicer with respect to such Transfer Date,
over (b) the amount of Outstanding Advances to be reimbursed on or with
respect to such Transfer Date.
"Available Principal" for a Transfer Date means the excess of (a) the
sum of the following amounts with respect to the preceding Collection
Period: (i) that portion of all Collections received during such Collection
Period and allocable to principal in accordance with Servicer's customary
servicing procedures (but only including the portion of Liquidation
Proceeds allocable to principal in accordance with the Servicer's customary
practices and received on or prior to the date the related Defaulted
Receivable was charged off) and (ii) to the extent attributable to
principal, the Purchase Amount received with respect to each Receivable
repurchased by Seller or purchased by Servicer as of the last day of the
related Collection Period over (b) all Forced Placed Insurance Advances
unreimbursed as of the end of the related Collection Period. "Available
Principal" on any Transfer Date shall exclude all payments and proceeds of
any Receivables the Purchase Amount of which has been deposited to the
Collection Account on a prior Deposit Date.
"Average Delinquency Ratio" means, as of any Transfer Date, the
average of the Delinquency Ratios for the preceding three Collection
Periods.
"Average Net Loss Ratio" means, as of any Transfer Date, the average
of the Net Loss Ratios for the preceding three Collection Periods.
"Bank Regulatory Authorities" means the Federal Reserve Board, the
Federal Deposit Insurance Corporation and Office of the Comptroller of
Currency.
"Basic Documents" means the Certificate of Trust, each Purchase
Agreement, each Affiliate Security Agreement, the Indenture, the Depository
Agreements, the Sale and Servicing Agreement, the Trust Agreement, the
Administration Agreement, the Notes, the Certificates and other documents
and certificates delivered in connection therewith.
"Benefit Plan" is defined in Section 11.12 of the Trust Agreement.
"Book Entry Certificate" means a beneficial interest in the
Certificates, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 3.11 of the Trust
Agreement.
"Book Entry Note" means a beneficial interest in the Notes, ownership
and transfers of which shall be made through book entries by a Clearing
Agency as described in Section 2.10 of the Indenture.
"Business Day" means a day that is not a Saturday or a Sunday or any
day that in the States of New York, Minnesota or Delaware is either a legal
holiday or a day on which banking institutions are authorized by law,
regulation or executive order to be closed.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code 3801 et seq.
"Certificate" means a certificate evidencing a fractional undivided
beneficial interest in Issuer, substantially in the form of Exhibit A to
the Trust Agreement.
"Certificate Account Property" means the Certificate Distribution
Account, all amounts and investments held from time to time therein
(whether in the form of deposit accounts, Physical Property, book-entry
securities, uncertificated securities or otherwise), and all proceeds of
the foregoing.
"Certificate Balance" equals, initially, $34,606,052.70 and,
thereafter, equals the initial Certificate Balance, reduced by all amounts
allocable to principal previously distributed to Certificateholders.
"Certificate Depository Agreement" means the agreement among the
Trust, Owner Trustee, Servicer and The Depository Trust Company, as the
initial Clearing Agency, dated as of the Closing Date, relating to the
Certificates, substantially in the form attached as Exhibit C to the Trust
Agreement, as the same may be amended and supplemented from time to time.
"Certificate Distribution Account" is defined in Section 5.1 of the
Trust Agreement.
"Certificate Interest Shortfall Amount" means, with respect to any
Transfer Date, the amount, if any, by which (i) the sum of the Servicing
Fee for the related Collection Period and all accrued and unpaid Servicing
Fees for prior Collection Periods, the Noteholders' Interest Distributable
Amount, the Noteholders' Principal Distributable Amount and the
Certificateholders' Interest Distributable Amount, for such Transfer Date
exceeds (ii) the sum of the Available Interest plus the Available Principal
plus the Reserve Account Transfer Amount for such Transfer Date.
"Certificate Interest Reserve Amount" means, with respect to any
Transfer Date, the lesser of (a) $545,045.33 less the amount of any
application of the Certificate Interest Reserve Amount to pay interest on
the Certificates on any prior Distribution Date and (b) 1.575% of the
Certificate Balance on such Transfer Date (before giving effect to any
reduction thereof on the related Distribution Date); provided, however,
that the Certificate Interest Reserve Amount shall be zero for such
Transfer Date if, as of such Transfer Date, the rating of any class of
Notes by any Rating Agency shall be less than "A-" or its equivalent or
shall have been withdrawn.
"Certificate of Trust" means the Certificate of Trust in the form of
Exhibit B to the Trust Agreement to be filed for Issuer pursuant to the
Business Trust Statute.
"Certificate Pool Factor" as of the close of business on a
Distribution Date means a seven-digit decimal figure equal to the
Certificate Balance (after giving effect to distributions made on such
date) divided by the initial Certificate Balance. The Certificate Pool
Factor will be 1.0000000 as of the Cutoff Date; thereafter, the Certificate
Pool Factor will decline to reflect reductions in the Certificate Balance.
"Certificate Rate" means 6.300% per annum.
"Certificate Register" and "Certificate Registrar" means the register
mentioned and the registrar appointed pursuant to Section 3.4 of the Trust
Agreement.
"Certificateholder" means the Person in whose name a Certificate is
registered on the Certificate Register.
"Certificateholders' Interest Carryover Shortfall" means, for any
Transfer Date, the excess of the Certificateholders' Monthly Interest
Distributable Amount for the preceding Transfer Date and any outstanding
Certificateholders' Interest Carryover Shortfall on such preceding Transfer
Date, over the amount in respect of interest at the Certificate Rate that
is actually deposited in the Certificate Distribution Account on such
preceding Transfer Date, plus interest on such excess, to the extent
permitted by law, in an amount equal to the product of one-twelfth
multiplied by the Certificate Rate multiplied by the amount of such excess.
"Certificateholders' Interest Distributable Amount" means, for any
Transfer Date, the sum of the Certificateholders' Monthly Interest
Distributable Amount for such Transfer Date and the Certificateholders'
Interest Carryover Shortfall for such Transfer Date.
"Certificateholders' Monthly Interest Distributable Amount" means, for
any Transfer Date, an amount equal to one-twelfth (or the actual number of
days from and including the Closing Date to but excluding December 15, 1996
divided by 360, for the initial Distribution Date) of the Certificate Rate
multiplied by the Certificate Balance as of the close of business on the
preceding Distribution Date (or, for the initial Transfer Date, the Closing
Date).
"Certificateholders' Monthly Principal Distributable Amount" means,
for any Transfer Date, the Certificateholders' Percentage of the Principal
Distribution Amount or, for any Transfer Date on or after the Distribution
Date on which the outstanding principal balance of the Class A-4 Notes is
reduced to zero, 100% of the Principal Distribution Amount (less any amount
required on the first such Distribution Date to reduce the outstanding
principal balance of the Class A-4 Notes to zero, which shall be deposited
into the Note Distribution Account).
"Certificateholders' Percentage" means 100% minus the Noteholders'
Percentage.
"Certificateholders' Principal Carryover Shortfall" means, as of the
close of business on any Transfer Date, the excess of the
Certificateholders' Monthly Principal Distributable Amount and any
outstanding Certificateholders' Principal Carryover Shortfall from the
preceding Transfer Date, over the amount in respect of principal that is
actually deposited in the Certificate Distribution Account on such current
Transfer Date.
"Certificateholders' Principal Distributable Amount" means, for any
Transfer Date, the sum of the Certificateholders' Monthly Principal
Distributable Amount for such Transfer Date and the Certificateholders'
Principal Carryover Shortfall as of the close of business on the preceding
Transfer Date; provided that the Certificateholders' Principal
Distributable Amount shall not exceed the Certificate Balance. In addition,
on the Transfer Date that is the Final Scheduled Distribution Date for the
Certificates, the Certificateholders Principal Distributable Amount will
include, to the extent not included under the preceding sentence, the
amount that is necessary (after giving effect to the other amounts to be
deposited in the Certificate Distribution Account on such Distribution Date
and allocable to principal) to reduce the Certificate Balance to zero.
"Charged Off Balances" means, for any Collection Period, the aggregate
Principal Balances as of the end of such Collection Period of all
Receivables which became Defaulted Receivables during such Collection
Period in accordance with the Servicer's customary practices.
"Class A-1 Final Payment Date" means December 5, 1997.
"Class A-1 Interest Rate" means 5.465% per annum.
"Class A-1 Noteholders' Interest Carryover Shortfall" means, for any
Transfer Date, the excess of the Class A-1 Noteholders' Monthly Interest
Distributable Amount for the preceding Transfer Date and any outstanding
Class A-1 Noteholders' Interest Carryover Shortfall on such preceding
Transfer Date, over the amount in respect of interest on the Class A-1
Notes that was actually paid to holders of the Class A-1 Notes on the
preceding Distribution Date, plus interest on the amount of interest due
but not paid to Holders of the Class A-1 Notes on the preceding
Distribution Date, to the extent permitted by law, in an amount equal to
the product of (i) the quotient of the number of days elapsed in the
related Interest Period divided by 360 multiplied by (ii) the Class A-1
Interest Rate multiplied by (iii) the amount of such interest due in
respect of the Class A-1 Notes.
"Class A-1 Noteholders' Interest Distributable Amount" means, for any
Transfer Date, the sum of (a) the Class A-1 Noteholders' Monthly Interest
Distributable Amount and (b) the Class A-1 Noteholders' Interest Carryover
Shortfall, in each case for such Transfer Date.
"Class A-1 Noteholders' Monthly Interest Distributable Amount" means,
for any Transfer Date, the product of (i) the quotient of the number of
days elapsed during the related Interest Period divided by 360 multiplied
by (ii) the Class A-1 Interest Rate multiplied by (iii) the Outstanding
Amount of the Class A-1 Notes on the immediately preceding Distribution
Date after giving effect to all payments of principal to the Holders of the
Class A-1 Notes on or prior to such Distribution Date (or, in the case of
the first Transfer Date, the Outstanding Amount of the Class A-1 Notes on
the Closing Date).
"Class A-1 Notes" means the Class A-1 5.465% Asset Backed Notes,
substantially in the form of Exhibit A to the Indenture.
"Class A-2 Interest Rate" means 5.800% per annum.
"Class A-2 Noteholders' Interest Carryover Shortfall" means, for any
Transfer Date, the excess of the Class A-2 Noteholders' Monthly Interest
Distributable Amount for the preceding Transfer Date and any outstanding
Class A-2 Noteholders' Interest Carryover Shortfall on such preceding
Transfer Date, over the amount in respect of interest on the Class A-2
Notes that was actually paid to holders of the Class A-2 Notes on the
preceding Distribution Date, plus interest on the amount of interest due
but not paid to Holders of the Class A-2 Notes on the preceding
Distribution Date, to the extent permitted by law, in an amount equal to
the product of one-twelfth multiplied by the Class A-2 Interest Rate
multiplied by the amount of such interest due in respect of the Class A-2
Notes.
"Class A-2 Noteholders' Interest Distributable Amount" means, for any
Transfer Date, the sum of (a) the Class A-2 Noteholders' Monthly Interest
Distributable Amount and (b) the Class A-2 Noteholders' Interest Carryover
Shortfall, in each case for such Transfer Date.
"Class A-2 Noteholders' Monthly Interest Distributable Amount" means,
for any Transfer Date, the product of one-twelfth (or, in the case of the
first Transfer Date the actual number of days elapsed from and including
the Closing Date to but excluding December 15, 1996 divided by 360)
multiplied by the Class A-2 Interest Rate multiplied by the Outstanding
Amount of the Class A-2 Notes on the immediately preceding Distribution
Date after giving effect to all payments of principal to the Holders of the
Class A-2 Notes on or prior to such immediately preceding Distribution Date
(or, in the case of the first Transfer Date, the Outstanding Amount of the
Class A-2 Notes on the Closing Date).
"Class A-2 Notes" means the Class A-2 5.800% Asset Backed Notes,
substantially in the form of Exhibit B to the Indenture.
"Class A-3 Interest Rate" means 5.900% per annum.
"Class A-3 Noteholders' Interest Carryover Shortfall" means, for any
Transfer Date, the excess of the Class A-3 Noteholders' Monthly Interest
Distributable Amount for the preceding Transfer Date and any outstanding
Class A-3 Noteholders' Interest Carryover Shortfall on such preceding
Transfer Date, over the amount in respect of interest on the Class A-3
Notes that was actually paid to holders of the Class A-3 Notes on the
preceding Distribution Date, plus interest on the amount of interest due
but not paid to Holders of the Class A-3 Notes on the preceding
Distribution Date, to the extent permitted by law, in an amount equal to
the product of one-twelfth multiplied by the Class A-3 Interest Rate
multiplied by the amount of such interest due in respect of the Class A-3
Notes.
"Class A-3 Noteholders' Interest Distributable Amount" means, for any
Transfer Date, the sum of (a) the Class A-3 Noteholders' Monthly Interest
Distributable Amount and (b) the Class A-3 Noteholders' Interest Carryover
Shortfall, in each case for such Transfer Date.
"Class A-3 Noteholders' Monthly Interest Distributable Amount" means,
for any Transfer Date, the product of one-twelfth (or, in the case of the
first Transfer Date the actual number of days elapsed from and including
the Closing Date to but excluding December 15, 1996 divided by 360)
multiplied by the Class A-3 Interest Rate multiplied by the Outstanding
Amount of the Class A-3 Notes on the immediately preceding Distribution
Date after giving effect to all payments of principal to the Holders of the
Class A-3 Notes on or prior to such immediately preceding Distribution Date
(or, in the case of the first Transfer Date, the Outstanding Amount of the
Class A-3 Notes on the Closing Date).
"Class A-3 Notes" means the Class A-3 5.900% Asset Backed Notes,
substantially in the form of Exhibit C to the Indenture.
"Class A-4 Interest Rate" means 6.100% per annum.
"Class A-4 Noteholders' Interest Carryover Shortfall" means, for any
Transfer Date, the excess of the Class A-4 Noteholders' Monthly Interest
Distributable Amount for the preceding Transfer Date and any outstanding
Class A-4 Noteholders' Interest Carryover Shortfall on such preceding
Transfer Date, over the amount in respect of interest on the Class A-4
Notes that was actually paid to holders of the Class A-4 Notes on the
preceding Distribution Date, plus interest on the amount of interest due
but not paid to Holders of the Class A-4 Notes on the preceding
Distribution Date, to the extent permitted by law, in an amount equal to
the product of one-twelfth multiplied by the Class A-4 Interest Rate
multiplied by the amount of such interest due in respect of the Class A-4
Notes.
"Class A-4 Noteholders' Interest Distributable Amount" means, for any
Transfer Date, the sum of (a) the Class A-4 Noteholders' Monthly Interest
Distributable Amount and (b) the Class A-4 Noteholders' Interest Carryover
Shortfall, in each case for such Transfer Date.
"Class A-4 Noteholders' Monthly Interest Distributable Amount" means,
for any Transfer Date, the product of one-twelfth (or, in the case of the
first Transfer Date the actual number of days elapsed from and including
the Closing Date to but excluding December 15, 1996 divided by 360)
multiplied by the Class A-4 Interest Rate multiplied by the Outstanding
Amount of the Class A-4 Notes on the immediately preceding Distribution
Date after giving effect to all payments of principal to the Holders of the
Class A-4 Notes on or prior to such immediately preceding Distribution Date
(or, in the case of the first Transfer Date, the Outstanding Amount of the
Class A-4 Notes on the Closing Date).
"Class A-4 Notes" means the Class A-4 6.100% Asset Backed Notes,
substantially in the form of Exhibit D to the Indenture.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means November 13, 1996.
"Code" means the Internal Revenue Code of 1986 and Treasury
Regulations promulgated thereunder.
"Collateral" is defined in the Granting Clause of the Indenture.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 5.1 of the Sale and Servicing Agreement.
"Collection Period" means, (a) in the case of the initial Collection
Period, the period from (but not including) the Cutoff Date to and
including November 30, 1996 and (b) thereafter, each calendar month during
the term of the Sale and Servicing Agreement. With respect to any
Determination Date, Deposit Date, Transfer Date, Distribution Date, or
Final Scheduled Distribution Date, the "related Collection Period" means
the Collection Period preceding the month in which such Determination Date,
Deposit Date, Transfer Date, Distribution Date or Final Scheduled
Distribution Date occurs.
"Collections" means all collections on the Receivables from whatever
source (including Liquidation Proceeds, Recoveries or proceeds from any
exercise of any rights against a Dealer, other than rights to rebates of
unamortized premiums paid or payable to Dealers) and any proceeds from
Insurance Policies (including any rebates of premiums or other amounts
received in respect of a force placed Physical Damage Insurance Policy) and
lender's single interest insurance policies on a Financed Vehicle securing
a Receivable.
"Commission" means the Securities and Exchange Commission.
"Contract Rate" means, with respect to a Receivable, the rate per
annum of interest charged on the outstanding principal balance of such
Receivable.
"Corporate Trust Office" means:
(a) as used in the Indenture, or otherwise with respect to
Indenture Trustee, the principal office of Indenture Trustee at which
at any particular time its corporate trust business shall be
administered which office at date of the execution of the Indenture is
located at 450 West 33rd Street, 15th Floor, New York, New York 10001,
Attention: James Fevola Telephone: 212-946-3246; Facsimile:
212-946-8191/8302 or at such other address as Indenture Trustee may
designate from time to time by notice to the Noteholders, Servicer and
Issuer, or the principal corporate trust office of any successor
Indenture Trustee (the address of which the successor Indenture
Trustee will notify the Noteholders and Issuer); and
(b) as used in the Trust Agreement, or otherwise with respect to
Owner Trustee, the principal corporate trust office of Owner Trustee
located at 1100 North Market Street, Wilmington, Delaware 19890,
Attention: Corporate Trust Administration; or at such other address as
Owner Trustee may designate by notice to the Certificateholders and
Depositor, or the principal corporate trust office of any successor
Owner Trustee (the address of which the successor owner trustee will
notify the Certificateholders and Depositor).
"Custodian" means Servicer in its capacity as agent of Issuer, as
custodian of the Receivable Files and any Seller Affiliate acting as agent
for Servicer for the purpose of maintaining custody of the Receivables
Files.
"Cutoff Date" means October 25, 1996.
"Dealer" means, with respect to any Receivable purchased from a Person
engaged in the business of selling Motor Vehicles, the seller of the
related Financed Vehicle.
"Dealer Agreement" means an agreement between a Seller Affiliate and a
Dealer pursuant to which such Seller Affiliate acquires Motor Vehicle Loans
from the Dealer.
"Dealer Recourse" means, with respect to any Dealer, any rights and
remedies against such Dealer under the related Dealer Agreement (other than
with respect to any breach of representation or warranty thereunder) with
respect to credit losses on a Receivable secured by a Financed Vehicle sold
by such Dealer.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Defaulted Receivable" means, with respect to any Collection Period, a
Receivable (other than a Purchased Receivable) which Servicer has
determined to charge off during such Collection Period in accordance with
its customary servicing practices; provided that any Receivable which
Seller or Servicer is obligated to repurchase or purchase shall be deemed
to have become a Defaulted Receivable during a Collection Period if Seller
or Servicer fails to deposit the related Purchase Amount on the related
Deposit Date when due.
"Definitive Notes" is defined in Section 2.10 of the Indenture.
"Definitive Certificates" means either or both (as the context
requires) of (a) Certificates issued in certificated, fully registered form
as provided in Section 3.11 of the Trust Agreement and (b) Certificates
issued in certificated, fully registered form as provided in Section 3.13
of the Trust Agreement.
"Delaware Trustee" is defined in Section 10.1 of the Trust Agreement.
"Delinquency Ratio" means, for any Collection Period, the ratio,
expressed as a percentage, of (a) the principal amount of all outstanding
Receivables (other than Purchased Receivables and Defaulted Receivables)
which are 60 or more days delinquent as of the end of such Collection
Period, determined in accordance with Servicer's customary practices,
divided by (b) the Pool Balance as of the last day of such Collection
Period.
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that
constitute "instruments" within the meaning of Section 9-105(l)(i) of
the UCC and are susceptible of physical delivery, transfer thereof to
Indenture Trustee or its nominee or custodian by physical delivery to
Indenture Trustee or its nominee or custodian endorsed to, or
registered in the name of, Indenture Trustee or its nominee or
custodian or endorsed in blank, and, with respect to a certificated
security (as defined in Section 8-102 of the UCC) transfer thereof (i)
by delivery of such certificated security endorsed to, or registered
in the name of, Indenture Trustee or its nominee or custodian or
endorsed in blank to a financial intermediary (as defined in Section
8-313 of the UCC) and the making by such financial intermediary of
entries on its books and records identifying such certificated
securities as belonging to Indenture Trustee or its nominee or
custodian and the sending by such financial intermediary of a
confirmation of the purchase of such certificated security by
Indenture Trustee or its nominee or custodian, or (ii) by delivery
thereof to a "clearing corporation" (as defined in Section 8-102(3) of
the UCC) and the making by such clearing corporation of appropriate
entries on its books reducing the appropriate securities account of
the transferor and increasing the appropriate securities account of a
financial intermediary by the amount of such certificated security,
the identification by the clearing corporation of the certificated
securities for the sole and exclusive account of the financial
intermediary, the maintenance of such certificated securities by such
clearing corporation or a "custodian bank" (as defined in Section
8-102(4) of the UCC) or the nominee of either subject to the clearing
corporation's exclusive control, the sending of a confirmation by the
financial intermediary of the purchase by Indenture Trustee or its
nominee or custodian of such securities and the making by such
financial intermediary of entries on its books and records identifying
such certificated securities as belonging to Indenture Trustee or its
nominee or custodian (all of the foregoing, "Physical Property"), and,
in any event, any such Physical Property in registered form shall be
in the name of Indenture Trustee or its nominee or custodian; and such
additional or alternative procedures as may hereafter become
appropriate to effect the complete transfer of ownership of any such
Trust Account Property to Indenture Trustee or its nominee or
custodian, consistent with changes in applicable law or regulations or
the interpretation thereof;
(b) with respect to any securities issued by the U.S. Treasury,
the Federal Home Loan Mortgage Corporation or by the Federal National
Mortgage Association that is a book-entry security held through the
Federal Reserve System pursuant to Federal book-entry regulations, the
following procedures, all in accordance with applicable law, including
applicable Federal regulations and Articles 8 and 9 of the UCC:
book-entry registration of such Trust Account Property to an
appropriate book-entry account maintained with a Federal Reserve Bank
by a financial intermediary which is also a "depository" pursuant to
applicable Federal regulations and issuance by such financial
intermediary of a deposit advice or other written confirmation of such
book-entry registration to Indenture Trustee or its nominee or
custodian of the purchase by Indenture Trustee or its nominee or
custodian of such book-entry securities; the making by such financial
intermediary of entries in its books and records identifying such
book-entry security held through the Federal Reserve System pursuant
to Federal book-entry regulations as belonging to Indenture Trustee or
its nominee or custodian and indicating that such custodian holds such
Trust Account Property solely as agent for Indenture Trustee or its
nominee or custodian; and such additional or alternative procedures as
may hereafter become appropriate to effect complete transfer of
ownership of any such Trust Account Property to Indenture Trustee or
its nominee or custodian, consistent with changes in applicable law or
regulations or the interpretation thereof; and
(c) with respect to any item of Trust Account Property that is
an uncertificated security under Article 8 of the UCC and that is not
governed by clause (b) above, registration on the books and records of
the issuer thereof in the name of the financial intermediary, the
sending of a confirmation by the financial intermediary of the
purchase by Indenture Trustee or its nominee or custodian of such
uncertificated security, the making by such financial intermediary of
entries on its books and records identifying such uncertificated
certificates as belonging to Indenture Trustee or its nominee or
custodian.
"Deposit Date" means, with respect to any Collection Period, the
Business Day preceding the related Transfer Date or, if acceptable to each
Rating Agency, the related Distribution Date; provided, however, that if
the Outstanding Amount of the Class A-1 Notes has not been paid in full on
or before the November 1997 Distribution Date, the December 1997 Deposit
Date shall be December 5, 1997.
"Depositor" means Seller in its capacity as Depositor under the Trust
Agreement.
"Depository Agreements" mean the Certificate Depository Agreement and
the Note Depository Agreement.
"Determination Date" means, with respect to any Collection Period, the
Business Day immediately preceding the Deposit Date for such Collection
Period; provided, however, that if the Outstanding Amount of the Class A-1
Notes has not been paid in full on or before the November 1997 Distribution
Date, the December 1997 Determination Date shall be December 5, 1997.
"Distribution Date" means the 15th day of each month (or, if the 15th
day is not a Business Day, the next succeeding Business Day), commencing
December 16, 1996.
"Dollar" and the sign "$" mean lawful money of the United States.
"Eligible Deposit Account" means either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the
laws of the United States of America or any one of the states thereof or
the District of Columbia (or any domestic branch of a foreign bank), having
corporate trust powers and acting as trustee for funds deposited in such
account, so long as the long-term unsecured debt of such depository
institution shall have a credit rating from each Rating Agency in one of
its generic rating categories which signifies investment grade. Any such
accounts (other than the Reserve Account) may be maintained with Norwest
Bank, or any of its Affiliates, if such accounts meet the requirements
described in clause (a) of the preceding sentence.
"Eligible Institution" means a depository institution (which may be
Servicer or Indenture Trustee) organized under the laws of the United
States of America or any one of the states thereof or the District of
Columbia (or any domestic branch of a foreign bank), which (a) has (i)
either a long-term senior unsecured debt rating of AAA or a short-term
senior unsecured debt or certificate of deposit rating of A-1+ or better by
Standard & Poor's and (ii)(A) a long-term senior unsecured debt rating of
A-l+ or better by Standard & Poor's and (B) a short-term senior unsecured
debt rating of P-1 or better by Moody's, or any other long-term, short-term
or certificate of deposit rating acceptable to the Rating Agencies and (b)
whose deposits are insured by the Federal Deposit Insurance Corporation. If
so qualified, Norwest Bank, any of its Affiliates, Owner Trustee or
Indenture Trustee may be considered an Eligible Institution.
"Eligible Investments" shall mean any one or more of the following
types of investments:
(a) direct obligations of, and obligations fully guaranteed as
to the full and timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
of any depository institution (including any Affiliate of Seller,
Indenture Trustee, Owner Trustee or any Affiliate of Indenture Trustee
or Owner Trustee) or trust company incorporated under the laws of the
United States of America or any state thereof or the District of
Columbia (or any domestic branch of a foreign bank) and subject to
supervision and examination by Federal or state banking of depository
institution authorities (including depository receipts issued by any
such institution or trust company as custodian with respect to any
obligation referred to in clause (a) above or portion of such
obligation for the benefit of the holders of such depository
receipts); provided that at the time of the investment or contractual
commitment to invest therein (which shall be deemed to be made again
each time funds are reinvested following each Deposit Date), the
commercial paper or other short-term senior unsecured debt obligations
(other than such obligations the rating of which is based on the
credit of a Person other than such depository institution or trust
company) of such depository institution or trust company shall have a
credit rating from Standard & Poor's of A-1+ and from Moody's of P-1;
(c) commercial paper (including commercial paper of any
Affiliate of Seller) having, at the time of the investment or
contractual commitment to invest therein, a rating from Standard &
Poor's of A-1+ and from Moody's of P-1;
(d) investments in money market funds (including funds for
which Indenture Trustee or Owner Trustee or any of their respective
Affiliates or any of Seller's Affiliates is investment manager or
advisor) having a rating from Standard & Poor's of AAA-m or AAAm-G and
from Moody's of Aaa;
(e) bankers' acceptances issued by any depository institution
or trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is
a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) referred to in clause (b) above;
and
(g) any other investment with respect to which each Rating
Agency has provided written notice that such investment would not
cause such Rating Agency to downgrade or withdraw its then current
rating of any class of Notes or the Certificates.
"ERISA" is defined in Section 11.12 of the Trust Agreement.
"Event of Default" is defined in Section 5.1 of the Indenture.
"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, any Vice President, the Secretary or
the Treasurer of such corporation; and with respect to any partnership, any
general partner thereof.
"Expected Interest" means, with respect to any Transfer Date, an
amount equal to the product of (a) one-twelfth of the Weighted Average
Contract Rate for the Receivables for the related Collection Period
multiplied by (ii) an amount equal to the aggregate Principal Balance of
the Receivables as of the beginning of the first day of the related
Collection Period minus the sum of the Principal Balances of the
Non-Advance Receivables for such Transfer Date.
"Expenses" is defined in Section 8.2 of the Trust Agreement.
"Final Scheduled Distribution Date" means for (a) the Class A-1 Notes,
December 5, 1997 (b) the Class A-2 Notes, the March 1999 Distribution Date,
(c) the Class A-3 Notes, the March 2000 Distribution Date, (d) the Class
A-4 Notes, the March 2001 Distribution Date and (e) the Certificates, the
May 2003 Distribution Date.
"Final Scheduled Maturity Date" means the last day of the Collection
Period immediately preceding the Final Scheduled Distribution Date for the
Certificates.
"Financed Vehicle" means a new or used automobile or light duty truck,
together with all accessions thereto, securing an Obligor's indebtedness
under a Receivable.
"Fitch" means Fitch Investors Service, L.P., or its successor.
"Force-Placed Insurance Advance" is defined in Section 4.4(c) of the
Sale and Servicing Agreement.
"GAAP" is generally accepted accounting principles in the U.S.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, grant a lien upon and a
security interest in and right of set-off against, deposit, set over and
confirm pursuant to the Indenture. A Grant of the Collateral or of any
other agreement or instrument shall include all rights, powers and options
(but none of the obligations) of the Granting party thereunder, including
the immediate and continuing right to claim for, collect, receive and give
receipt for principal and interest payments in respect of the Collateral
and all other moneys payable thereunder, to give and receive notices and
other communications, to make waivers or other agreements, to exercise all
rights and options, to bring proceedings in the name of the Granting party
or otherwise and generally to do and receive anything that the Granting
party is or may be entitled to do or receive thereunder or with respect
thereto. Other forms of the verb "to Grant" shall have correlative
meanings.
"Holder" means, as the context may require, a Certificateholder or a
Noteholder or both.
"Indemnified Parties" is defined in Section 8.2 of the Trust
Agreement.
"Indemnified Person" is defined in Section 10.3 of the Sale and
Servicing Agreement.
"Indemnifying Person" is defined in Section 10.3 of the Sale and
Servicing Agreement.
"Indenture" means the Indenture dated as of November 13, 1996, between
Issuer and Indenture Trustee, as the same may be amended and supplemented
from time to time.
"Indenture Trustee" means The Chase Manhattan Bank, not in its
individual capacity but as trustee under the Indenture, or any successor
trustee under the Indenture.
"Independent" means, when used with respect to any specified Person,
that the person (a) is in fact independent of Issuer, any other obligor
upon the Notes, Seller and any Affiliate of any of the foregoing persons,
(b) does not have any direct financial interest or any material indirect
financial interest (other than less than 5% of the outstanding amount of
any publicly traded security) in Issuer, any such other obligor, Seller or
any Affiliate of any of the foregoing Persons and (c) is not connected with
Issuer, any such other obligor, Seller or any Affiliate of any of the
foregoing Persons as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of
the Indenture, made by an Independent appraiser or other expert appointed
by an Issuer Order, and such opinion or certificate shall state that the
signer has read the definition of "Independent" in the Indenture and that
the signer is Independent within the meaning thereof.
"Initial Pool Balance" means the sum of the Initial Principal Balances
of all of the Receivables.
"Initial Principal Balance" means, in respect of a Receivable, the
excess of (a) the amount advanced under the Receivable toward the purchase
price of the Financed Vehicle and related costs, including accessories,
service and warranty contracts, insurance premiums, other items customarily
financed as part of retail motor vehicle loans and/or retail installment
sales contracts and other fees charged by a Seller Affiliate or the
applicable Dealer and included in the amount to be financed, the total of
which is shown as the initial principal balance in the Motor Vehicle Loan
evidencing such Receivable, over (b) the sum of the portion of all payments
received under such Receivable from or on behalf of the related Obligor on
or prior to the Cutoff Date and allocable to principal under the terms of
the Receivable in accordance with the Servicer's customary practices.
"Insolvency Event" means, for a specified Person, (a) the filing of a
decree or order for relief by a court having jurisdiction in the premises
in respect of such Person or any substantial part of its property in an
involuntary case under any applicable Federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver (including any receiver appointed under the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, as amended), liquidator,
assignee, custodian, trustee, sequestrator or similar official for such
Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person's affairs, and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or (b) the commencement by such Person 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 such Person to the entry of an
order for relief in an involuntary case under any such law, or the consent
by such Person to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
for such Person or for any substantial part of its property, or the making
by such Person of any general assignment for the benefit of creditors, or
the failure by such Person generally to pay its debts as such debts become
due, or the taking of action by such Person in furtherance of any of the
foregoing.
"Insolvency Proceeds" is defined in Section 9.1(b) of the Sale and
Servicing Agreement.
"Insurance Policies" means, all credit life and disability insurance
policies maintained by the Obligors and all Physical Damage Insurance
Policies.
"Interest Collections" means, for any Transfer Date, the sum of the
following amounts for the related Collection Period (without duplication):
(a) that portion of the Collections on the Receivables received during the
related Collection Period that is allocable to interest in accordance with
Servicer's customary procedures (including the portion of Liquidation
Proceeds allocable to interest in accordance with the Servicer's customary
practices and received on or prior to the date the related Defaulted
Receivable was charged off), (b) all Recoveries received during the related
Collection Period and (c) all Purchase Amounts, to the extent allocable to
accrued interest, of all Receivables that are purchased by Seller or
Servicer as of the last day of the related Collection Period. "Interest
Collections" for any Transfer Date shall exclude all payments and proceeds
of any Receivables the Purchase Amount of which has been deposited into the
Collection Account on a prior Deposit Date.
"Interest Period" means, with respect to any specified Distribution
Date, the period from and including the Closing Date (in the case of the
first Distribution Date) and thereafter from and including the preceding
Distribution Date to but excluding such specified Distribution Date.
"Interest Rate" means, with respect to the (a) Class A-1 Notes, the
Class A-1 Interest Rate, (b) Class A-2 Notes, the Class A-2 Interest Rate,
(c) Class A-3 Notes, the Class A-3 Interest Rate, and (d) Class A-4 Notes,
the Class A-4 Interest Rate.
"Interest Shortfall" means, with respect to any Transfer Date, the
lesser of (a) the amount by which the Expected Interest for such Transfer
Date exceeds the Net Interest Collections for such Transfer Date and (b)
the amount (if any) by which the sum of the Servicing Fee for the related
Collection Period and all accrued and unpaid Servicing Fees for prior
Collection Periods, the Noteholders' Interest Distributable Amount and the
Certificateholders' Interest Distributable Amount for such Transfer Date
exceeds the Net Interest Collections for such Transfer Date.
"Issuer" means Norwest Auto Trust 1996-A.
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of Issuer by any one of its Authorized Officers and
delivered to Indenture Trustee.
"Lien" means a security interest, lien, charge, pledge, preference,
participation interest or encumbrance of any kind (other than mechanics' or
materialmen's liens, other liens for work, labor or materials, and any
other liens that may attach by operation of law).
"Liquidation Proceeds" means, with respect to any Receivable (a) all
proceeds from the repossession and sale of any Financed Vehicle securing
such Receivable (whether received before or after such Receivable has
become a Defaulted Receivable), (b) all proceeds from any deficiency claim
made with respect to such Receivable and (c) all other amounts, from
whatever source, received in respect of such Receivable after it has become
a Defaulted Receivable, in each case, net of the related out of pocket
expenses paid by or on behalf of the Servicer to third parties in
connection therewith.
"Moody's" means Moody's Investors Service, Inc., or its successor.
"Motor Vehicle" means a new or used automobile or light duty truck.
"Motor Vehicle Loan" means a retail installment sales contract secured
by a Motor Vehicle acquired by a Seller Affiliate from a Dealer or other
Person, including all rights against the borrower or co-borrowers under
such retail installment sales contract and any co-signer or guarantor of
such retail installment sales contract or other Person who owes or may be
primarily or secondarily liable for payments under such retail installment
sales contract.
"Net Interest Collections" means, with respect to any Transfer Date,
the greater of (a) zero and (b) Interest Collections for such Transfer Date
minus the Outstanding Advances.
"Net Loss Ratio" means, for any Collection Period, an amount,
expressed as a percentage, equal to (a) the Aggregate Net Losses for such
Collection Period, divided by (b) the average of the Pool Balances at the
close of business on the last day of the preceding Collection Period and
the close of business on the last day of such Collection Period.
"Non-Advance Receivables" means, with respect to any Transfer Date,
any Receivables which became Defaulted Receivables or which Servicer, in
its sole discretion, believes are likely to become Defaulted Receivables.
"Norwest Bank" means, Norwest Bank Minnesota, N.A., a national banking
association.
"Note" means a Class A-1 Note, Class A-2 Note, Class A-3 Note or Class
A-4 Note.
"Note Depository Agreement" means the agreement among Issuer, Servicer
and The Depository Trust Company, as the initial Clearing Agency, dated as
of the Closing Date, relating to the Notes, as the same may be amended or
supplemented from time to time.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.1 of the Sale and
Servicing Agreement.
"Noteholder" means the Person in whose name a Note is registered on
the Note Register.
"Note Owner" means, with respect to a Book-Entry Note, the person who
is the owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such
Clearing Agency).
"Note Pool Factor" for each class of Notes as of the close of business
on a Distribution Date means a seven-digit decimal figure equal to the
outstanding principal balance of such class of Notes divided by the
original outstanding principal balance of such class of Notes. The Note
Pool Factor for each class of Notes will be 1.0000000 as of the Cutoff
Date; thereafter, the Note Pool Factor for each class of Notes will decline
to reflect reductions in the outstanding principal balance of such class of
Notes.
"Noteholders' Distributable Amount" means, for any Transfer Date, the
sum of the Noteholders' Principal Distributable Amount and the Noteholders'
Interest Distributable Amount.
"Noteholders' Interest Distributable Amount" means, for any Transfer
Date, the sum of (a) the Class A-1 Noteholders' Interest Distributable
Amount, (b) the Class A-2 Noteholders' Interest Distributable Amount, (c)
the Class A-3 Noteholders' Interest Distributable Amount, and (d) the Class
A-4 Noteholders' Interest Distributable Amount, in each case, for such
Transfer Date.
"Noteholders' Monthly Principal Distributable Amount" means, for any
Transfer Date, the Noteholders' Percentage of the Principal Distribution
Amount.
"Noteholders' Percentage" means 100% until the point in time at which
all Notes of all classes have been paid in full, and zero thereafter.
"Noteholders' Principal Carryover Shortfall" means, as of the close of
business on any specified Transfer Date, the excess of the Noteholders'
Monthly Principal Distributable Amount for such Transfer Date and any
outstanding Noteholders' Principal Carryover Shortfall from the Transfer
Date preceding the specified Transfer Date over the amount in respect of
principal that is actually deposited in the Note Distribution Account on
the specified Transfer Date.
"Noteholders' Principal Distributable Amount" means, for any Transfer
Date, the sum of the Noteholder's Monthly Principal Distributable Amount
for such Transfer Date and the Noteholders' Principal Carryover Shortfall
as of the close of business on the preceding Transfer Date; provided that
the Noteholders' Principal Distributable Amount shall not exceed the
aggregate outstanding principal balance of the Notes. In addition, on the
Transfer Date relating to the Final Scheduled Distribution Date of each
class of Notes, the principal required to be deposited in the Note
Distribution Account will include the amount necessary (after giving effect
to the other amounts to be deposited in the Note Distribution Account on
such Transfer Date and allocable to principal) to be paid to Noteholders of
such class to reduce the Outstanding Amount of such class of Notes to zero.
"Note Register" and "Note Registrar" are defined in Section 2.4 of the
Indenture.
"Obligor" means, with respect to a Receivable, the borrower or
co-borrowers under the related Receivable and any co-signer of the
Receivable or other Person who owes or may be primarily or secondarily
liable for payments under such Receivable.
"Officer's Certificate" means: (a) for purposes of the Indenture, a
certificate signed by any Authorized Officer of Issuer, under the
circumstances described in, and otherwise complying with, the applicable
requirements of Section 11.1 and TIA 314, and delivered to Indenture
Trustee; and (b) otherwise, a certificate signed by the chairman, the
president, any vice president or the treasurer of Seller or Servicer, as
the case may be, and delivered to Indenture Trustee. Unless otherwise
specified, any reference in the Indenture to an Officer's Certificate shall
be to an Officer's Certificate of any Authorized Officer of Issuer.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in the Indenture, be employees
of or counsel to Issuer and who shall be satisfactory to Issuer, Owner
Trustee or Indenture Trustee, as applicable, and which opinion or opinions
shall be addressed to Issuer, Owner Trustee, or Indenture Trustee, as
applicable, and shall be in form and substance satisfactory to the Issuer,
Owner Trustee, and Indenture Trustee, as applicable.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under the Indenture except:
(a) Notes theretofore canceled by Note Registrar or delivered
to Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with Indenture
Trustee or any Paying Agent in trust for the Holders of such Notes
(provided that if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to the Indenture or provision
therefor, satisfactory to Indenture Trustee); and
(c) Notes in exchange for or in lieu of other Notes which have
been authenticated and delivered pursuant to the Indenture unless
proof satisfactory to Indenture Trustee is presented that any such
Notes are held by a bona fide purchaser;
provided that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
Basic Document, Notes owned by Issuer, any other obligor upon the Notes,
Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Notes that a Responsible Officer of Indenture Trustee either actually knows
to be so owned or has received written notice thereof shall be so
disregarded. Notes so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee certifies to the Indenture Trustee
the pledgee's right so to act with respect to such Notes and that the
pledgee is not Issuer, any other obligor upon the Notes, Seller or any
Affiliate of any of the foregoing Persons.
"Outstanding Advances" means, as of any date, all Advances made by
Servicer with respect to prior Deposit Dates which have not been reimbursed
pursuant to Section 5.3 of the Sale and Servicing Agreement.
"Outstanding Amount" means the aggregate principal amount of all
Notes, or class of Notes, as applicable, Outstanding at the date of
determination.
"Owner" means each Person who is the beneficial owner of a Book Entry
Certificate as reflected in the records of the Clearing Agency or if a
Clearing Agency Participant is not the Owner, then as reflected in records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
"Owner Trust Estate" means all right, title and interest of Issuer in
and to the property and rights assigned to Issuer pursuant to Article II of
the Sale and Servicing Agreement, all funds on deposit from time to time in
the Trust Accounts and the Certificate Distribution Account and all other
property of Issuer from time to time, including any rights of Owner Trustee
and Issuer pursuant to the Sale and Servicing Agreement.
"Owner Trustee" means Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee
under the Trust Agreement, and any successor Owner Trustee under the Trust
Agreement.
"Paying Agent" means: (a) when used in the Indenture or otherwise with
respect to the Notes, Indenture Trustee or any other Person that meets the
eligibility standards for Indenture Trustee specified in Section 6.11 of
the Indenture and is authorized by Issuer to make the payments to and
distributions from the Collection Account and the Note Distribution
Account, including payment of principal of or interest on the Notes on
behalf of Issuer; and (b) when used in the Trust Agreement or otherwise
with respect to the Certificates, Owner Trustee or any other paying agent
or co-paying agent appointed pursuant to Section 3.9 of the Trust
Agreement.
"Person" means a legal person, including any individual, corporation,
estate, partnership, limited liability company, joint venture, association,
joint stock company, trust, unincorporated organization, or government or
any agency or political subdivision thereof, or any other entity of
whatever nature.
"Physical Damage Insurance Policy" means a theft and physical damage
insurance policy maintained by the Obligor or force-placed under a
Receivable, providing coverage against loss or damage to or theft of the
related Financed Vehicle.
"Physical Property" is defined in the definition of "Delivery" above.
"Pool Balance" means, at any time, the aggregate Principal Balance of
the Receivables (excluding Purchased Receivables and Defaulted Receivables)
at such time.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purpose of this definition,
any Note authenticated and delivered under Section 2.5 of the Indenture in
lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Note.
"Principal Balance" means, as of any time, for any Receivable, the
principal balance of such Receivable under the terms of the Receivable
determined in accordance with the Servicer's customary practices.
"Principal Distribution Amount" means, for any Transfer Date, the sum
of (a) the Available Principal for such Transfer Date, and (b) the
aggregate amount of Charged Off Balances for the related Collection Period.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Purchase Agreement" means each agreement dated as of November 13,
1996 between a Seller Affiliate and Seller under which such Seller
Affiliate sells Receivables to Seller.
"Purchase Amount" means, with respect to any Receivable, the amount,
as of the close of business on the last day of a Collection Period,
required to prepay in full such Receivable under the terms thereof
including accrued and unpaid interest at the Contract Rate for such
Collection Period.
"Purchased Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by Servicer pursuant to
Section 4.7 of the Sale and Servicing Agreement or repurchased by Seller
pursuant to Section 3.3 of the Sale and Servicing Agreement.
"Rating Agencies" means Moody's, Standard & Poor's and Fitch.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' prior notice thereof (or such
shorter period as shall be acceptable to the Rating Agencies) and that
neither of the Rating Agencies shall have notified Seller, Servicer, Owner
Trustee or Indenture Trustee in writing that such action will, in and of
itself, result in a downgrade reduction or withdrawal of the then current
rating of any class of Notes, or the Certificates.
"Receivable" means each Motor Vehicle Loan described in the Schedule
of Receivables, but excluding (i) Defaulted Receivables to the extent the
Principal Balances thereof have been deposited in the Collection Account
and (ii) any Purchased Receivables.
"Receivable Files" is defined in Section 3.4 of the Sale and Servicing
Agreement.
"Record Date" means, with respect to any Distribution Date or
Redemption Date, the close of business on the day immediately preceding
such Distribution Date or Redemption Date; or, if Definitive Notes or
Definitive Certificates have been issued, the last day of the month
preceding such Distribution Date.
"Recoveries" means, for any Defaulted Receivable, any Liquidation
Proceeds received after the date such Defaulted Receivable was charged off
in accordance with the Servicer's customary servicing practices.
"Redemption Date" means in the case of a redemption of the Notes
pursuant to Section 10.1(a) of the Indenture or a payment to Noteholders
pursuant to Section 10.1(b) of the Indenture, the Distribution Date
specified by Servicer or Issuer pursuant to such Section 10.1(a).
"Redemption Price" means (a) in the case of a redemption of the Notes
pursuant to Section 10.1(a) of the Indenture, an amount equal to the unpaid
principal amount of the then outstanding Class A-4 Notes plus accrued and
unpaid interest thereon to but excluding the Redemption Date, or (b) in the
case of a payment made to Noteholders pursuant to Section 10.1(b) of the
Indenture, the amount on deposit in the Note Distribution Account, but not
in excess of the amount specified in clause (a) or (c) in the case of a
redemption of the Certificates pursuant to Section 9.3(a) of the Trust
Agreement, an amount equal to the Certificate Balance of the Certificates
plus accrued interest thereon but excluding such Redemption Date.
"Required Rating" means a rating with respect to short term deposit
obligations of at least P-1 by Moody's and at least A-1+ by Standard &
Poor's.
"Reserve Account" means the account designated as such, established
and maintained pursuant to Section 5.8 of the Sale and Servicing Agreement.
"Reserve Account Deposit" means an amount equal to $18,633,055.92.
"Reserve Account Property" is defined in Section 5.8(b) of the Sale
and Servicing Agreement.
"Reserve Account Transfer Amount" means, with respect to any Transfer
Date, an amount equal to the lesser of (a) the excess of (i) the amount of
cash or other immediately available funds on deposit in the Reserve Account
on such Transfer Date (before giving effect to any withdrawals therefrom
relating to such Transfer Date other than amounts necessary to reimburse
Outstanding Advances) over (ii) the Certificate Interest Reserve Amount on
such Transfer Date, and (b) the amount, if any, by which (i) the sum of the
Servicing Fee for the related Collection Period and all accrued and unpaid
Servicing Fees for prior Collection Periods, the Noteholders' Interest
Distributable Amount, the Certificateholders' Interest Distributable
Amount, the Noteholders' Principal Distributable Amount and the
Certificateholders' Principal Distributable Amount for such Transfer Date
exceeds (ii) the sum of the Available Interest and the Available Principal
for such Transfer Date.
"Responsible Officer" means, with respect to Indenture Trustee, any
officer within the Corporate Trust Office of Indenture Trustee, including
any Vice President, Assistant Vice President, Assistant Treasurer,
Assistant Secretary, or any other officer of Indenture Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
among Issuer, Norwest Bank Minnesota, N.A., as Servicer, and Norwest Auto
Receivables Corporation, as Seller, dated as of November 13, 1996, as the
same may be amended and supplemented from time to time.
"Schedule of Receivables" means, with respect to the Motor Vehicle
Loans to be conveyed to Seller by each Seller Affiliate and to Issuer by
Seller, the schedule contained in the diskette delivered to the Indenture
Trustee.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Securities Intermediary" is defined in Section 5.8 of the Sale and
Servicing Agreement.
"Seller" means Norwest Auto Receivables Corporation, a Delaware
corporation, and any of its successors permitted by Section 6.4 of the Sale
and Servicing Agreement.
"Servicer" means Norwest Bank and each Successor Servicer.
"Servicer Termination Event" means an event specified in Section 8.1
of the Sale and Servicing Agreement.
"Servicer's Report" means a report of Servicer delivered pursuant to
Section 4.9 of the Sale and Servicing Agreement, substantially in the form
of Exhibit C to that agreement.
"Servicing Fee" is defined in Section 4.8 of the Sale and Servicing
Agreement.
"Servicing Fee Rate" means 1.00% per annum.
"Simple Interest Method" means the method of allocating a fixed level
payment monthly installments between principal and interest, pursuant to
which such payment is allocated first to accrued and unpaid interest at the
Contract Rate on the unpaid principal balance and the remainder of such
payment is allocable to principal.
"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"Specified Reserve Account Balance" means, for any Transfer Date, the
greater of (a) 3.25% of the sum of the aggregate outstanding principal
amount of each class of Notes plus the outstanding Certificate Balance on
the related Distribution Date (after giving effect to all payments on the
Notes and distributions with respect to the Certificates to be made on or
prior to such Distribution Date) and (b) 1.0% of the sum of the aggregate
initial principal of the Notes plus the initial Certificate Balance; except
that, if on such Transfer Date (x) the Average Net Loss Ratio exceeds 2.0%
or (y) the Average Delinquency Ratio exceeds 2.0%, then the Specified
Reserve Account Balance for such Transfer Date shall be an amount equal to
6.0% of the sum of the aggregate outstanding principal amount of each class
of Notes and the aggregate outstanding Certificate Balance on the related
Distribution Date (after giving effect to all payments on the Notes and
distributions with respect to the Certificates to be made on or prior to
such Distribution Date). In any event, on any Transfer Date, the Specified
Reserve Account Balance will not exceed the aggregate Outstanding Amount of
the Notes plus the aggregate outstanding Certificate Balance on the related
Distribution Date (after giving effect to all payments on the Notes and
distributions on the Certificates to be made on or prior to such
Distribution Date) and may be reduced to a lesser amount, as determined by
Seller, so long as such reduction does not cause any Rating Agency to
withdraw or downgrade its rating of the Notes or the Certificates.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., or its successor.
"State" means any one of the 50 states of the United States of America
or the District of Columbia.
"Successor Servicer" shall mean any successor servicer from time to
time appointed pursuant to the Indenture.
"Supplemental Servicing Fee" is defined in Section 4.8 of the Sale and
Servicing Agreement.
"Total Distribution Amount" means, for each Transfer Date, the sum of
(a) the Available Interest, (b) the Available Principal, and (c) the
Reserve Account Transfer Amount, in each case in respect of such Transfer
Date.
"Transfer Date" means, with respect to any Collection Period, the
related Distribution Date; provided, however, that if the outstanding
principal amount of the Class A-1 Note has not been paid in full on or
before the November 1997 Distribution Date, the December 1997 Transfer Date
shall be the Final Scheduled Distribution Date for the Class A-1 Notes.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code.
"Trust Property" shall have the meaning set forth in Section 2.1 of
the Sale and Servicing Agreement.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the
form of deposit accounts, Physical Property, book-entry securities,
uncertificated securities or otherwise), and all proceeds of the foregoing.
"Trust Accounts" is defined in Section 5.1 of the Sale and Servicing
Agreement.
"Trust Agreement" means the Trust Agreement dated as of November 13,
1996, between Seller and Owner Trustee, as the same may be amended and
supplemented from time to time.
"Trust Estate" means all money, instruments, rights and other property
that are subject or intended to be subject to the lien and security
interest of the Indenture for the benefit of the Noteholders (including all
property and interests Granted to Indenture Trustee), including all
proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force on the date hereof, unless otherwise specifically provided.
"Trust Property" shall have the meaning set forth in Section 2.1 of
the Sale and Servicing Agreement.
"UCC" means the Uniform Commercial Code, as in effect in the relevant
jurisdiction.
"Weighted Average Contract Rate" means, with respect to any Collection
Period, the weighted average of the Contract Rates of the Receivables (but
excluding any Non-Advance Receivable, as determined on the related Deposit
Date), weighted based on the Principal Balance of each such Receivable as
of the first day of such Collection Period.
EXHIBIT A
NORWEST AUTO TRUST
96-A
Servicer Certificate
Distribution Date:
Collection Period:
Deposit Date:
Determination Date:
Transfer Date:
This Certificate is delivered pursuant to Section 4.9 of the Sale and
Servicing Agreement, dated as of November 13, 1996, among Norwest Auto
Trust 1996-A as Issuer, Norwest Auto Receivables Corporation, as Seller,
and Norwest Bank Minnesota, N.A. as Servicer.
Norwest Bank Minnesota, N.A. as Servicer under the Sale and Servicing
Agreement, hereby certifies that the following information is true and
correct for the Distribution Date and the Collection Period set forth
above.
I. Collection Account Summary
- -----------------------------
A. Available Funds:
Available Interest
Available Principal
Reserve Account Transfer Account
Certificate Interest Shortfall Amount
Total Available Funds ============
B. Amounts Payable on Distribution Date:
Reimbursement of prior Servicer Advances
Basic Servicing Fee
Noteholders' Interest Distributable Amount
Noteholders' Principal Distributable Amount
Certificateholders' Interest Distributable Amount
Certificateholders' Principal Distributable Amount
Deposits to Reserve Fund
Total Amounts Payable on Distribution Date ============
<PAGE>
II. Collected Funds
- -------------------
Available Interest
Interest Collections
Advances made by Servicer less outstanding
advances reimbursed ____________
Available Principal
Scheduled Principal
Prepaid Principal
Net Liquidation Proceeds
Repurchase Amount allocable to principal
Forced Placed Insurance Advances ____________
____________
Total Collected Funds ============
III. Liquidation Proceeds
- -------------------------
Gross amount received with respect to liquidated
Receivables before becoming Defaulted Receivable
less: the related out of pocket expenses paid
by or on behalf of the Servicer to third
parties in connection with liquidation ____________
Net Liquidation Proceeds ============
IV. Calculation of Advances
- ----------------------------
Current Month Servicer Advance
Prior Month's Servicer Advance ____________
Net Servicer Advance ============
V. Calculation of Principal Distribution Amount
- -----------------------------------------------
Available Principal
Charged Off Balances
Total Principal Distribution Amount ============
VI. Calculation of Servicing Fees
- --------------------------------
Pool Balance as of the first day of the
Collection Period
Servicing Fee Rate
Servicing Fee ============
VII. Purchases
- -------------
Receivables purchased during Collection Period
Loan Number Receivable Balance
(individual listing)
VIII. Additional Receivables Information
- ---------------------------------------
Beginning Pool Balance
Ending Pool Balance
Beginning Number of Receivables
Number of Receivable Payoffs/Defaulted Receivables/Repurchases
Ending Number of Receivables
Initial Weighted Average Maturity
Current Weighted Average Maturity
Initial Weighted Average Contract Rate
Current Weighted Average Contract Rate
PERFORMANCE INFORMATION
IX. Delinquency Ratio
- -----------------------
Principal Balance of Receivables 60 or more
days delinquent
Pool Balance as of the end of the
Collection Period
Delinquency Ratio ============
X. Average Delinquency Ratio
- -----------------------------
Delinquency Ratio - Current Collection Period
Delinquency Ratio - preceding Collection Period
Delinquency Ratio - second preceding Collection Period
Average Delinquency Ratio ============
XI. Aggregate Net Loss
- ---------------------
Principal charged off during Collection Period
less: Recoveries of previously Defaulted Receivables
received during Collection Period ____________
Net Loss for Collection Period
============
<PAGE>
XII. Net Loss Ratio
- ------------------
Aggregate Net Losses for Collection Period
Average Pool Balance for Collection Period
Net Loss Ratio
============
XIII. Average Net Loss Ratio
- ---------------------------
Net Loss Ratio - current Collection Period
Net Loss Ratio - preceding Collection Period
Net Loss Ratio - second preceding Collection Period
Average Net Loss Ratio
============
CREDIT ENHANCEMENT INFORMATION
XIV. Reserve Fund Information
- ------------------------------
Beginning Balance
Deposit to the Reserve Fund
less: Transfer to Collection Account
Release to Seller
Ending Balance ============
Required Balance ============
Certificate Interest Reserve Amount ============
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this report to be executed
by its duly authorized officer as of the _______ day of ____________ 199_.
NORWEST BANK MINNESOTA, N.A.
as Servicer
By:_____________________________
Name:
Title:
<PAGE>
<TABLE>
<CAPTION>
_____________________________________________________________________________
PAYMENTS PER SECURITY DENOMINATION
Norwest Auto Trust 96-A
Distribution Date:
Collection Period:
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Remaining
Original % of Interest Interest Interest Principal Principal Ending Principal Servicing
Class Balance Pool Accrual Distribution Shortfall Distribution Shortfall Balance Factor Fee
- ------------------------------------------------------------------------------------------------------------------------------
A-1
A-2
A-3
A-4
B
Totals
<PAGE>
<CAPTION>
- ------------------------------------------------------------------------------
DISTRIBUTION STATEMENT
Norwest Auto Trust 96-A
Distribution Date:
Collection Period:
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Interest Beginning Interest Interest Interest Principal Principal Ending Total
Class Rate Balance Accrual Distribution Shortfall Distribution Shortfall Balance Distribution
- ----------------------------------------------------------------------------------------------------------------------------------
A-1
A-2
A-3
A-4
NOTEHOLDER TOTALS
B
CERTIFICATEHOLDER TOTALS
TOTAL
DISTRIBUTION 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
</TABLE>
