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, 1998
FIRST SECURITY OWNER TRUST 1998-1
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Exact name of registrant as specified in its charter
Delaware 333-35847 87-0131890
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State or other jurisdiction Commission File No. IRS Employer ID #
of incorporation
79 South Main, P.O. Box 30006, Salt Lake City, Utah 84130-0006
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Address and zip code of principal executive offices
(801) 246-5706
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Registrant's telephone number
Item 5. Other Events
FIRST SECURITY AUTO OWNER TRUST 1998-1 has reached final agreement
with Bankers Trust Company Corporation on the form of its Indenture. The form of
this Indenture, together with Form T-1 for Bankers Trust Company, the indenture
trustee, are filed herewith as exhibits.
Exhibits
Exhibit 4 Form of Indenture for FIRST SECURITY AUTO OWNER TRUST 1998-1.
Exhibit 99 Form T-1 for Bankers Trust Company
FIRST SECURITY OWNER TRUST 1998-1
/s/ Scott C. Ulbrich
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Scott C. Ulbrich
Authorized Officer
Dated: November 5, 1998
FIRST SECURITY AUTO OWNER TRUST 1998-1
Class A-1 5.248% Asset Backed Notes
Class A-2 5.182% Asset Backed Notes
Class A-3 5.042% Asset Backed Notes
Class B 5.95% Asset Backed Notes
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INDENTURE
Dated as of November 4, 1998
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Bankers Trust Company,
a New York banking corporation
Indenture Trustee
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CROSS-REFERENCE TABLE
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TIA Indenture
Section Section
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310(a)(1) .............................. 6.11
(a)(2) .............................. 6.11
(a)(3) .............................. 6.10
(a)(4) .............................. 6.14
(b) .............................. 6.11
(c) .............................. N.A.
311(a) .............................. 6.12
(b) .............................. 6.12
(c) .............................. N.A.
312(a) .............................. 7.1, 7.2
(b) .............................. 7.2
(c) .............................. 7.2
313(a) .............................. 7.4(a), 7.4(b)
(b)(1) .............................. 7.4(a)
(b)(2) .............................. 7.4(a)
(c) .............................. 7.4(a)
(d) .............................. 7.4(a)
314(a) .............................. 7.3(a), 3.9
(b) .............................. 3.6
(c)(1) .............................. 2.2, 2.9, 4.1, 11.1(a)
(c)(2) .............................. 11.1(a)
(c)(3) .............................. 11.1(a)
(d) .............................. 2.9, 11.1(b)
(e) .............................. 11.1(a)
(f) .............................. 11.1(a)
315(a) .............................. 6.1(b)
(b) .............................. 6.5
(c) .............................. 6.1(a)
(d) .............................. 6.2, 6.1(c)
(e) .............................. 5.13
316(a)last
sentence .............................. 1.1
(a)(1)(A) .............................. 5.11
(a)(1)(B) .............................. 5.12
(a)(2) .............................. Omitted
316(b), (c) .............................. 5.7
317(a)(1) .............................. 5.3(b)
(a)(2) .............................. 5.3(d)
(b) .............................. 3.3
318(a) .............................. 11.7
N.A. means Not Applicable.
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Note: This cross reference table shall not, for any purpose, be deemed to be
part of this Indenture.
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions................................. 2
SECTION 1.2 Incorporation by Reference of Trust
Indenture Act............................... 2
ARTICLE II THE NOTES
SECTION 2.1 Form........................................ 3
SECTION 2.2 Execution, Authentication and Delivery...... 3
SECTION 2.3 Temporary Notes............................. 4
SECTION 2.4 Registration; Registration of Transfer
and Exchange of Notes....................... 4
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes.. 5
SECTION 2.6 Persons Deemed Noteholders.................. 6
SECTION 2.7 Payment of Principal and Interest........... 7
SECTION 2.8 Cancellation of Notes....................... 8
SECTION 2.9 Release of Collateral....................... 8
SECTION 2.10 Book-Entry Notes............................ 8
SECTION 2.11 Notices to Clearing Agency.................. 9
SECTION 2.12 Definitive Notes............................ 9
SECTION 2.13 Seller as Noteholder........................ 10
SECTION 2.14 Tax Treatment............................... 10
ARTICLE III COVENANTS
SECTION 3.1 Payment of Principal and Interest........... 11
SECTION 3.2 Maintenance of Agency Office................ 11
SECTION 3.3 Money for Payments To Be Held in Trust...... 11
SECTION 3.4 Existence................................... 13
SECTION 3.5 Protection of Trust Estate; Acknowledgment
of Pledge................................... 13
SECTION 3.6 Opinions as to Trust Estate................. 14
SECTION 3.7 Performance of Obligations; Servicing of
Receivables................................. 14
SECTION 3.8 Negative Covenants.......................... 15
SECTION 3.9 Annual Statement as to Compliance........... 16
SECTION 3.10 Consolidation, Merger, etc., of Issuer;
Disposition of Trust Assets................. 17
SECTION 3.11 Successor or Transferee..................... 19
SECTION 3.12 No Other Business........................... 19
SECTION 3.13 No Borrowing................................ 19
SECTION 3.14 Guarantees, Loans, Advances and Other
Liabilities................................. 19
SECTION 3.15 Servicer's Obligations...................... 19
SECTION 3.16 Capital Expenditures........................ 19
SECTION 3.17 Restricted Payments......................... 20
SECTION 3.18 Notice of Events of Default................. 20
SECTION 3.19 Further Instruments and Acts................ 20
SECTION 3.20 Indenture Trustee's Assignment of
Purchased Receivables....................... 20
ARTICLE IV SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture..... 21
SECTION 4.2 Application of Trust Money.................. 22
SECTION 4.3 Repayment of Monies Held by Paying Agent.... 22
ARTICLE V DEFAULT AND REMEDIES
SECTION 5.1 Events of Default........................... 23
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment...........................24
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee............ 24
SECTION 5.4 Remedies; Priorities........................ 26
SECTION 5.5 Optional Preservation of the Trust Estate... 27
SECTION 5.6 Limitation of Suits......................... 28
SECTION 5.7 Unconditional Rights of Noteholders To
Receive Principal and Interest.............. 28
SECTION 5.8 Restoration of Rights and Remedies.......... 29
SECTION 5.9 Rights and Remedies Cumulative.............. 29
SECTION 5.10 Delay or Omission Not a Waiver.............. 29
SECTION 5.11 Control by Noteholders...................... 29
SECTION 5.12 Waiver of Past Defaults..................... 30
SECTION 5.13 Undertaking for Costs....................... 30
SECTION 5.14 Waiver of Stay or Extension Laws............ 31
SECTION 5.15 Action on Notes............................. 31
SECTION 5.16 Performance and Enforcement of Certain
Obligations................................. 31
ARTICLE VI THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee................. 31
SECTION 6.2 Rights of Indenture Trustee................. 33
SECTION 6.3 Indenture Trustee May Own Notes............. 33
SECTION 6.4 Indenture Trustee's Disclaimer.............. 33
SECTION 6.5 Notice of Defaults.......................... 34
SECTION 6.6 Reports by Indenture Trustee to Holders..... 34
SECTION 6.7 Compensation; Indemnity..................... 34
SECTION 6.8 Replacement of Indenture Trustee............ 35
SECTION 6.9 Merger or Consolidation of Indenture
Trustee..................................... 36
SECTION 6.10 Appointment of Co-Indenture Trustee or
Separate Indenture Trustee.................. 36
SECTION 6.11 Eligibility; Disqualification............... 37
SECTION 6.12 Preferential Collection of Claims
Against Issuer.............................. 38
SECTION 6.13 Representations and Warranties of
Indenture Trustee........................... 38
SECTION 6.14 Indenture Trustee May Enforce Claims
Without Possession of Notes................. 39
SECTION 6.15 Suit for Enforcement........................ 39
SECTION 6.16 Rights of Noteholders to Direct
Indenture Trustee........................... 39
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish Indenture Trustee
Names and Addresses of Noteholders.......... 40
SECTION 7.2 Preservation of Information,
Communications to Noteholders............... 40
SECTION 7.3 Reports by Issuer........................... 40
SECTION 7.4 Reports by Indenture Trustee................ 41
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money......................... 41
SECTION 8.2 Accounts; Payments.......................... 42
SECTION 8.3 General Provisions Regarding Accounts....... 43
SECTION 8.4 Release of Trust Estate..................... 43
SECTION 8.5 Opinion of Counsel.......................... 44
ARTICLE IX SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of
Noteholders................................. 44
SECTION 9.2 Supplemental Indentures With Consent of
Noteholders................................. 45
SECTION 9.3 Execution of Supplemental Indentures........ 47
SECTION 9.4 Effect of Supplemental Indenture............ 47
SECTION 9.5 Conformity with Trust Indenture Act......... 47
SECTION 9.6 Reference in Notes to Supplemental
Indentures.................................. 47
ARTICLE X REDEMPTION OF NOTES
SECTION 10.1 Redemption.................................. 47
SECTION 10.2 Form of Redemption Notice................... 48
SECTION 10.3 Notes Payable on Redemption Date............ 48
ARTICLE XI MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc.. 49
SECTION 11.2 Form of Documents Delivered to Indenture
Trustee.............................50
SECTION 11.3 Acts of Noteholders........................ 51
SECTION 11.4 Notices, etc., to Indenture Trustee,
Issuer and Rating Agencies................. 52
SECTION 11.5 Notices to Noteholders; Waiver.............. 52
SECTION 11.6 Alternate Payment and Notice Provisions..... 52
SECTION 11.7 Conflict with Trust Indenture Act........... 52
SECTION 11.8 Effect of Headings and Table of Contents.... 53
SECTION 11.9 Successors and Assigns...................... 53
SECTION 11.10 Separability................................ 53
SECTION 11.11 Benefits of Indenture....................... 53
SECTION 11.12 Legal Holidays.............................. 53
SECTION 11.13 Governing Law............................... 53
SECTION 11.14 Counterparts................................ 53
SECTION 11.15 Recording of Indenture...................... 53
SECTION 11.16 No Recourse................................. 54
SECTION 11.17 No Petition................................. 54
SECTION 11.18 Inspection.................................. 54
SECTION 11.19 Voting Rights............................... 55
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Exhibit A - Locations of Schedule of Receivables
Exhibit B - Form of Class A Asset Backed Note
Exhibit C - Form of Class B Asset Backed Note
Exhibit D - Form of Note Depository Agreement
Exhibit E - Officer's Issuance Certificate
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INDENTURE, dated as of November 4, 1998 between FIRST SECURITY
AUTO OWNER TRUST 1998-1, a Delaware business trust (the "Issuer"), and Bankers
Trust Company, a New York banking corporation, as trustee and not in its
individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Notes and
(only to the extent expressly provided herein) the Certificateholders:
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as trustee for the benefit of the Noteholders and (only to the
extent expressly provided herein) the Certificateholders, all of the Issuer's
right, title and interest in, to and under (a) the Receivables listed on the
Schedule of Receivables which is on file at the locations listed on Exhibit A
hereto and all monies due or received under the Receivables after the close of
business of the Servicer on the Cutoff Date; (b) the Accounts and such amounts
as from time to time may be held therein (including the Account Property related
thereto); (c) the security interests in the Financed Vehicles; (d) the Seller's
rights (if any) to receive proceeds from claims on Insurance Policies covering
the Financed Vehicles or the Obligors; (e) the Seller's rights relating to the
Receivables under the Dealer Agreements and Dealer Assignments; (f) the Seller's
rights to all documents and information contained in the Receivable Files; (g)
the rights of the Trust under this Agreement (including the right to receive
payments under the circumstances specified herein from the Reserve Account); and
(h) all proceeds (within the meaning of the Relevant UCC) of the foregoing
(collectively, the "Collateral").
The foregoing Grant is made in trust to secure (a) first, the
payment of principal of and interest on, and any other amounts owing in respect
of, the Class A Notes, equally and ratably without prejudice, priority or
distinction, and (b) second, the payment of principal of and interest on, and
any other amounts owing in respect of, the Class B Notes, equally and ratably
without prejudice, priority or distinction, and to secure compliance with the
provisions of this Indenture, all as provided in this Indenture. This Indenture
constitutes a security agreement under the UCC.
The foregoing Grant includes all rights, powers and options
(but none of the Obligations, if any) of the Issuer under any agreement or
instrument included in the Collateral, including the immediate and continuing
right to claim for, collect, receive and give receipt for principal and interest
payments in respect of the Receivables included in the Collateral and all other
monies payable under the Collateral, 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 Issuer or otherwise and
generally to do and receive anything that the Issuer is or may be entitled to do
or receive under or with respect to the Collateral.
The Indenture Trustee, as trustee on behalf of the Noteholders
(only to the extent expressly provided herein), acknowledges such Grant and
accepts the trusts under this Indenture in accordance with the provisions of
this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION I.1 Definitions. Certain capitalized terms used in
this Indenture shall have the respective meanings assigned them in Section 1.1
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of the Sale and Servicing Agreement of even date herewith among the Issuer and
Seller (as it may be amended, supplemented or modified from time to time, the
"Sale and Servicing Agreement"). All references herein to "the Indenture" or
"this Indenture" are to this Indenture as it may be amended, supplemented or
modified from time to time, the exhibits hereto and the capitalized terms used
herein which are defined in such Section 1.1 of the Sale and Servicing
Agreement. All references herein to Articles, Sections, subsections and exhibits
are to Articles, Sections, subsections and exhibits contained in or attached to
this Indenture unless otherwise specified. All terms defined in this Indenture
shall have the defined meanings when used in any certificate, notice, Note or
other document made or delivered pursuant hereto unless otherwise defined
therein.
SECTION I.2 Incorporation by reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such 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" means the Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by a Commission
rule have the respective meanings assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION II.1 Form
(a) Each of the Class A Notes and Class B Notes, with the
Indenture Trustee's certificate of authentication, shall be substantially in the
form set forth in Exhibit B and Exhibit C, respectively, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and each such class 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.
(b) 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.
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(c) Each Note shall be dated the date of its authentication.
The terms of each class of Notes as provided for on the face of each Note in
Exhibit B and Exhibit C hereto are part of the terms of this Indenture.
SECTION II.2 Execution, Authentication and Delivery
(a) Each Note shall be dated the date of its authentication,
and shall be issuable as a registered Note in the minimum denomination of $1,000
(other than the Class B Notes) and in integral multiples thereof.
(b) The Notes shall be executed on behalf of the Issuer by any
of its Authorized Officers. The signature of any such Authorized Officer on the
Notes may be manual or facsimile.
(c) Notes bearing the manual or facsimile signature of
individuals who were at any time Authorized Officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such office prior to the authentication and delivery of such Notes or did
not hold such office at the date of such Notes.
(d) The Indenture Trustee shall upon Issuer Order authenticate
and deliver to or upon the order of the Issuer, the Notes for original issue in
aggregate principal amount of $749,746,311.45, comprised of (i) Class A-1 Notes
in the aggregate principal amount of $147,500,000.00, (ii) Class A-2 Notes in
the aggregate principal amount of $232,000,000.00, (iii) Class A-3 Notes in the
aggregate principal amount of $336,470,000.00 and (iv) Class B Notes in the
aggregate principal amount of $33,776,311.45 (each of which shall be a
"Definitive Note"). The aggregate principal amount of all Notes outstanding at
any time may not exceed $749,746,311.45 except as provided in Section 2.5.
(e) No Notes 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 set forth,
in the case of the Class A Notes, in Exhibit B, and in the case of the Class B
Notes, in Exhibit C, executed by the Indenture Trustee by the manual signature
of one of its authorized signatories, and such certificate upon any Note shall
be conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
SECTION II.3 Temporary Notes
(a) Pending the preparation of Definitive Notes, if any, the
Issuer may execute, and upon receipt of an Issuer Order the Indenture Trustee
shall authenticate and deliver, such 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
as are consistent with the terms of this Indenture as the officers executing
such Notes may determine, as evidenced by their execution of such Notes.
(b) If Temporary Notes are issued, the Issuer shall 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 Agency Office of
the Issuer to be maintained as provided in Section 3.2, without charge to the
Noteholder. Upon surrender for cancellation of any one or more Temporary Notes,
the Issuer shall execute and the Indenture Trustee shall authenticate and
deliver in exchange therefor a like principal amount of Definitive Notes of
authorized denominations. Until so delivered in exchange, the Temporary Notes
shall in all respects be entitled to the same benefits under this Indenture as
Definitive Notes.
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SECTION II.4 Registration; Registration of Transfer and
Exchange of Notes
(a) The Issuer shall cause to be kept the Note Register,
comprising separate registers for each class of Notes, in which, subject to such
reasonable regulations as the Issuer may prescribe, the Issuer shall provide for
the registration of the Notes and the registration of transfers and exchanges of
the Notes. The Indenture Trustee shall initially be the Note Registrar for the
purpose of registering the Notes and transfers of the Notes as herein provided.
Upon any resignation of any Note Registrar, the Issuer shall promptly appoint a
successor Note Registrar or, if it elects not to make such an appointment,
assume the duties of the Note Registrar.
(b) If a Person other than the Indenture Trustee is appointed
by the Issuer as Note Registrar, the Issuer will give the Indenture Trustee
prompt written notice of the appointment of such Note Registrar and of the
location, and any change in the location, of the Note Register. The Indenture
Trustee shall have the right to inspect the Note Register at all reasonable
times and to obtain copies thereof. The Indenture Trustee shall have the right
to conclusively rely upon a certificate executed on behalf of the Note Registrar
by an Executive Officer thereof as to the names and addresses of the Noteholders
and the principal amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note at
the Corporate Trust Office of the Indenture Trustee or the Agency Office of the
Issuer (and following the delivery, in the former case, of such Notes to the
Issuer by the Indenture Trustee), the Issuer shall execute, the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, in the name of the designated transferee or transferees, one or more
new Notes in any authorized denominations, of a like aggregate principal amount.
(d) At the option of the Noteholder, Notes may be exchanged
for other Notes of the same class in any authorized denominations, of a like
aggregate principal amount, upon surrender of the Notes to be exchanged at the
Corporate Trust Office of the Indenture Trustee or the Agency Office of the
Issuer (and following the delivery, in the former case, of such Notes to the
Issuer by the Indenture Trustee), the Issuer shall execute, and the Indenture
Trustee shall authenticate and the Noteholder shall obtain from the Indenture
Trustee, the Notes which the Noteholder making the exchange is entitled to
receive.
(e) All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee and the
Note Registrar, duly executed by the Holder thereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by a commercial bank
or trust company located, or having a correspondent located, in the City of New
York or the city in which the Corporate Trust Office of the Indenture Trustee is
located, or by a member firm of a national securities exchange, and such other
documents as the Indenture Trustee may require.
(g) No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Issuer or Indenture
Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes, other than exchanges pursuant to Sections 2.3 or
9.6 not involving any transfer.
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(h) The preceding provisions of this Section 2.4
notwithstanding, the Issuer shall not be required to transfer or make exchanges,
and the Note Registrar need not register transfers or exchanges, of Notes that:
(i) have been selected for redemption pursuant to Article X, if applicable; or
(ii) are due for repayment in full within 15 days of submission to the Corporate
Trust Office of the Indenture Trustee or the Agency Office.
SECTION II.5 Mutilated, Destroyed, Lost or Stolen Notes
(a) If (i) any mutilated Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to the
Indenture Trustee such security or indemnity as may be required by it to hold
the Issuer and the Indenture Trustee harmless, then, in the absence of notice to
the Issuer, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a bona fide purchaser, the Issuer shall execute and upon the
Issuer's written request the Indenture Trustee shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Note, a replacement Note of a like class and aggregate principal amount;
provided, however, 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
in full, or shall have been called for redemption, instead of issuing a
replacement Note, the Issuer may make payment to the Holder of such destroyed,
lost or stolen Note when so due or payable or upon the Redemption Date, if
applicable, without surrender thereof.
(b) If, after the delivery of a replacement Note or payment in
respect of a destroyed, lost or stolen Note pursuant to subsection (a), any bona
fide purchaser of the original Note in lieu of which such replacement Note was
issued presents for payment such original Note, the Issuer and the Indenture
Trustee shall be entitled to recover such replacement Note (or such payment)
from (i) any Person to whom it was delivered, (ii) the Person taking such
replacement Note from the Person to whom such replacement Note was delivered or
(iii) any assignee of such Person, except any bona fide purchaser, and the
Issuer and the Indenture Trustee shall be entitled to recover upon the security
or indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Issuer or the Indenture Trustee in connection therewith.
(c) In connection with the issuance of any replacement Note
under this Section 2.5, the Issuer may require the payment by the Holder of such
Note of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other reasonable expenses (including all
fees and expenses of the Indenture Trustee) connected therewith.
(d) Any duplicate Note issued pursuant to this Section 2.5 in
replacement for any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be found at any time or be
enforced by any Person, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder.
(e) The provisions of this Section 2.5 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 II.6. Persons Deemed Noteholders. Prior to due
presentment for registration of transfer of any Note, the Issuer, the Indenture
Trustee and any agent of the Issuer or the Indenture Trustee may treat the
Person in whose name any Note is registered (as of the day of determination) as
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the Noteholder for the purpose of receiving payments of principal of and
interest on such Note and for all other purposes whatsoever, whether or not such
Note be overdue, and neither the Issuer, the Indenture Trustee nor any agent of
the Issuer or the Indenture Trustee shall be affected by notice to the contrary.
SECTION II.7 Payment of Principal and Interest
(a) Interest on the Class A-1 Notes and the Class A-2 Notes
will be computed on the actual number of days elapsed from the most recent
Distribution Date (or the Closing Date, in the case of the initial Distribution
Date) to but excluding the then current Distribution Date divided by 360 at the
applicable Interest Rate for such class, and such interest shall be payable on
each Distribution Date, in accordance with the priorities set forth in Section
8.2(c). Interest on the Class A-3 Notes and the Class B Notes will be computed
on the basis of a 360-day year of twelve 30-day months (or, in the case of the
initial Distribution Date, 11/30ths of a month) at the applicable Interest Rate
for such class, and such interest shall be payable on each Distribution Date, in
accordance with the priorities set forth in Section 8.2(c). Any instalment of
interest payable on any Note shall be punctually paid or duly provided for by a
deposit by or at the written direction of the Issuer or the Servicer into the
Note Distribution Account before each Distribution Date for payment to
Noteholders on the related Distribution Date and shall be paid to the Person in
whose name such Note (or one or more Predecessor Notes) is registered on the
applicable 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;
provided, however, that, unless and until Definitive Notes have been issued
pursuant to Section 2.12, with respect to Notes registered on the applicable
Record Date in the name of the Note Depository (initially, Cede & Co.), payment
shall be made by wire transfer in immediately available funds to the account
designated by the Note Depository; and provided further that, so long as the
Class B Notes are held by the Seller or any of its Affiliates, payment on the
Class B Notes shall be made by wire transfer in immediately available funds to
the account designated by the Seller.
(b) Prior to the occurrence of an Event of Default and a
declaration in accordance with Section 5.2(a) that the Notes have become
immediately due and payable, the principal of each class of Notes shall be
payable in full on the Final Scheduled Distribution Date for such class and, to
the extent of funds available therefor, in instalments on the Distribution Dates
(if any) preceding the Final Scheduled Distribution Date for such class, in the
amounts and in accordance with the priorities set forth in Section 8.2(c)(ii).
All principal payments on each class of Notes shall be made pro rata to the
Noteholders of such class entitled thereto. Any instalment of principal payable
on any Note shall be punctually paid or duly provided for by a deposit by or at
the written direction of the Issuer into the Note Distribution Account prior to
the applicable Distribution Date and shall be paid to the Person in whose name
such Note (or one or more Predecessor Notes) is registered on the applicable
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; provided,
however, that, unless and until Definitive Notes have been issued pursuant to
Section 2.12, with respect to Notes registered on the Record Date in the name of
the Note Depository, payment shall be made by wire transfer in immediately
available funds to the account designated by the Note Depository and provided
further that, so long as the Class B Notes are held by the Seller or any of its
Affiliates, payment on the Class B Notes shall be made by wire transfer in
immediately available funds to the account designated by the Seller, except, in
each case, for: (i) the final instalment of principal on any Note; and (ii) the
Redemption Price for the Notes redeemed pursuant to Section 10.1, which, in each
case, shall be payable as provided herein. The funds represented by any such
checks in respect of interest or principal returned undelivered shall be held in
accordance with Section 3.3.
(c) [Reserved.]
(d) From and after the occurrence of an Event of Default and a
declaration in accordance with Section 5.2(a) that the Notes have become
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immediately due and payable, principal on the Notes shall be payable as provided
in Section 8.2(c)(iii).
(e) With respect to any Distribution Date on which the final
instalment of principal and interest on a class of Notes is to be paid, the
Servicer shall notify the Indenture Trustee of such payment on the related
Determination Date. The Indenture Trustee shall notify each Noteholder of such
class of record as of the Record Date for such Distribution Date of the fact
that the final instalment of principal of and interest on such Note is to be
paid on such Distribution Date. Such notice shall be sent (i) on such Record
Date by facsimile, if Book-Entry Notes are outstanding; or (ii) not later than
five Business Days after such Record Date in accordance with Section 11.5(a) if
Definitive Notes are outstanding, and shall specify that such final instalment
shall 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 instalment and the manner in which such payment shall be made. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2.
SECTION II.8. Cancellation of Notes. All Notes surrendered for
payment, redemption, exchange or registration of transfer shall, if surrendered
to any Person other than the Indenture Trustee, be delivered to the Indenture
Trustee and shall be promptly canceled by the Indenture Trustee. The Issuer may
at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
canceled by the Indenture Trustee. No Notes shall be authenticated in lieu of or
in exchange for any Notes canceled as provided in this Section 2.8, except as
expressly permitted by this Indenture. All canceled Notes may be held or
disposed of by the Indenture Trustee in accordance with its standard retention
or disposal policy as in effect at the time unless the Issuer shall direct by an
Issuer Order that they be returned to it; provided, however, that such Issuer
Order is timely and the Notes have not been previously disposed of by the
Indenture Trustee. The Indenture Trustee shall certify to the Issuer, upon
written request, that surrendered Notes have been duly canceled and retained or
destroyed, as the case may be.
SECTION II.9 Release of Collateral. The Indenture Trustee
shall release property from the lien of this Indenture, other than as permitted
by Sections 3.20, 8.2, 8.4 and 11.1, only upon receipt of an Issuer Request
accompanied by an Officers' Certificate, an Opinion of Counsel (to the extent
required by the TIA) and Independent Certificates in accordance with TIA "314(c)
and 314(d)(1).
SECTION II.10. Book-Entry Notes. The Notes, upon original
issuance, shall be issued in the form of a typewritten Note or Notes
representing the Book-Entry Notes, to be delivered to The Depository Trust
Company, the initial Clearing Agency by or on behalf of the Issuer. Such Note or
Notes shall be registered on the Note Register in the name of the Note
Depository (initially, Cede & Co.), and no Note Owner shall receive a Definitive
Note representing such Note Owner's interest in such Note, except as provided in
Section 2.12. Unless and until Definitive Notes have been issued to the Note
Owners pursuant to Section 2.12:
(a) the provisions of this Section 2.10 shall be in
full force and effect;
(b) the Note Registrar and the Indenture Trustee
shall be entitled to deal with the Clearing Agency for all purposes of
this Indenture (including the payment of principal of and interest on
the Notes and the giving of instructions or directions hereunder) as
the sole holder of the Notes and shall have no obligation to the Note
Owners;
(c) to the extent that the provisions of this Section
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2.10 conflict with any other provisions of this Indenture, the
provisions of this Section 2.10 shall control;
(d) the rights of the 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 and unless and
until Definitive Notes are issued pursuant to Section 2.12, the initial
Clearing Agency shall make book-entry transfers between the Clearing
Agency Participants and receive and transmit payments of principal of
and interest on the Notes to such Clearing Agency Participants,
pursuant to the Note Depository Agreement; 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 in principal amount of such
Notes then Outstanding, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has (i) received
written 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 (ii) has
delivered such instructions to the Indenture Trustee.
SECTION II.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, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Noteholders to the Clearing
Agency and shall have no other obligation to the Note Owners.
SECTION II.12 Definitive Notes. If (i) the Administrator
advises the Indenture Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Notes and the Administrator is unable to locate a qualified successor; (ii) the
Administrator, at its option, advises the Indenture Trustee in writing that it
elects to terminate the book-entry system through the Clearing Agency; or (iii)
after the occurrence of an Event of Default or an Event of Servicing
Termination, with respect to such Securities, the holders representing at least
a majority of the Outstanding Principal Amount of the related Notes advise the
Indenture Trustee and 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
the 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 the Indenture Trustee of the typewritten Note or Notes representing
the Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the Indenture Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions. Upon the issuance of Definitive Notes, the Indenture Trustee shall
recognize the Holders of the Definitive Notes as Noteholders.
SECTION II.13 Seller as Noteholder. The Seller in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer or its affiliates with the same rights it
would have if it were not the Seller.
SECTION II.14 Tax Treatment. The Issuer in entering into this
Indenture, and the Noteholders and the Note Owners, by acquiring any Note or
interest therein, (i) express their intention that the Notes qualify under
applicable tax law as indebtedness secured by the Collateral, and (ii) unless
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otherwise required by appropriate taxing authorities, agree to treat the Notes
as indebtedness secured by the Collateral for the purpose of federal income
taxes, state and local income and franchise taxes, and any other taxes imposed
upon, measured by or based upon gross or net income.
SECTION II.15 Special Terms Applicable to Subsequent Transfers
of Certain Notes.
(a) At the time of issuance, the Class B Notes shall not be
registered under the Securities Act, or the securities laws of any other
jurisdiction. Consequently, such Class B Notes (the "Unregistered Notes") shall
not be transferable other than pursuant to (i) an exemption from the
registration requirements of the Securities Act and satisfaction of certain
other provisions specified herein or (ii) registration under the Securities Act.
Unless registered under the Securities Act, no sale, pledge or other transfer of
any Unregistered Note (or interest therein) may be made by any Person unless
either (i) such sale, pledge or other transfer is made to a "qualified
institutional buyer" (as defined under Rule 144A under the Securities Act) or to
an institutional investor that is an "accredited investor" (as described in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) and, if so requested by the
Seller or the Indenture Trustee, such proposed transferee executes and delivers
a certificate, substantially in the form attached hereto as Exhibit E or
otherwise in form and substance satisfactory to the Indenture Trustee and the
Seller, or (ii) such sale, pledge or other transfer is otherwise made in a
transaction exempt from the registration requirements of the Securities Act, in
which case, unless the Seller otherwise directs, (A) the Indenture Trustee shall
require that both the prospective transferor and the prospective transferee
certify to the Indenture Trustee and the Seller in writing the facts surrounding
such transfer, which certification shall be in form and substance satisfactory
to the Indenture Trustee and the Seller, and (B) the Indenture Trustee shall
require a written Opinion of Counsel (which shall not be at the expense of the
Seller, the Servicer or the Indenture Trustee) satisfactory to the Seller and
the Indenture Trustee to the effect that such transfer will not violate the
Securities Act. Neither the Seller nor the Indenture Trustee shall be obligated
hereunder to register any Unregistered Notes under the Securities Act, qualify
any Unregistered Notes under the securities laws of any state or provide
registration rights to any purchaser or holder thereof. In the event Class A
Notes are Outstanding, the purchaser or holder of any Unregistered Note agrees
by accepting such Note (or interest therein) to vote any such Unregistered Note
in the manner the majority of the Outstanding Class A Notes have voted with
regard to any issue voted upon.
(b) Unregistered Notes shall be issued in the form of
Definitive Notes, shall be in fully registered form and Sections 2.10, 2.11 and
2.12 of this Indenture shall not apply thereto.
(c) Each Unregistered Note shall bear legends to the effect
set forth in subsection (a).
ARTICLE III
COVENANTS
SECTION III.1 Payment of Principal and Interest. The Issuer
shall duly and punctually pay the principal of and interest on the Notes in
accordance with the terms of the Notes and this Indenture. On each Distribution
Date and on the Redemption Date (if applicable), the Indenture Trustee shall
distribute amounts on deposit in the Note Distribution Account to the
Noteholders in accordance with Sections 2.7 and 8.2, less amounts properly
withheld under the Code by any Person from a payment to any Noteholder of
interest and/or principal. Any amounts so withheld shall be considered as having
been paid by the Issuer to such Noteholder for all purposes of this Indenture.
SECTION III.2 Maintenance of Agency Office. As long as any of
the Notes remains outstanding, the Issuer shall maintain in the Borough of
Manhattan, the City of New York, an office (the "Agency Office"), being an
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office or agency where Notes may be surrendered to the Issuer for registration
of transfer or exchange, and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer hereby
initially appoints the Indenture Trustee to serve as its agent for the foregoing
purposes. The Issuer shall give prompt written notice to the Indenture Trustee
of the location, and of any change in the location, of the Agency Office. If at
any time the Issuer shall fail to maintain any such office or agency or shall
fail to furnish the Indenture Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Indenture Trustee, and the Issuer hereby appoints the Indenture Trustee as its
agent to receive all such surrenders, notices and demands; provided that,
notwithstanding the forgoing, the Agency Office shall not be the location for
the service of process to the Issuer.
SECTION III.3 Money for Payments To Be Held in Trust
(a) 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 Note Distribution Account pursuant to Section 8.2(c) shall be made on
behalf of the Issuer by the Indenture Trustee or by another Paying Agent, and no
amounts so withdrawn from the Note Distribution Account for payments of Notes
shall be paid over to the Issuer except as provided in this Section 3.3.
(b) Before each Distribution Date or the Redemption Date (if
applicable), the Indenture Trustee shall deposit in the Note Distribution
Account an aggregate sum sufficient to pay the amounts then becoming due with
respect to the Notes, such sum to be held in trust for the benefit of the
Persons entitled thereto.
(c) The Issuer shall cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts
due with respect to the Notes in trust for the
benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise
disposed of as herein provided and pay such sums to
such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by
the Issuer (or any other obligor upon the Notes) of
which it has actual knowledge in the making of any
payment required to be made with respect to the
Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture
Trustee, forthwith pay to the Indenture Trustee all
sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith
pay to the Indenture Trustee all sums held by it in
trust for the payment of Notes if at any time it
ceases to meet the standards required to be met by a
Paying Agent in effect at the time of determination
of the Issuer; 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.
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(d) The Issuer may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
(e) Subject to applicable laws with respect to escheat of
funds, any money held by the Indenture Trustee or any Paying Agent in trust for
the payment of any amount due with respect to any Note and remaining unclaimed
for two years after such amount has become due and payable shall be discharged
from such trust and be paid by the Indenture Trustee to the Issuer on Issuer
Request; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof (but only to the extent of
the amounts so paid to the Issuer), and all liability of the Indenture Trustee
or such Paying Agent with respect to such trust money shall thereupon cease;
provided, however, that the Indenture Trustee or such Paying Agent, before being
required to make any such payment, may at the expense and written direction of
the Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
shall be paid to the Issuer. The Indenture Trustee may also adopt and employ, at
the expense and written direction of the Issuer, any other reasonable means of
notification of such payment (including, but not limited to, mailing notice of
such payment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION III.4 Existence. The Issuer shall 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 the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
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 III.5 Proctection of Trust Estate; Acknowledgement of
Pledge. The Issuer shall from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements, amendments
thereto, continuation statements, assignments, certificates, instruments of
further assurance and other instruments, and shall take such other action as may
be determined to be necessary or advisable in an Opinion of Counsel to the Owner
Trustee delivered to the Indenture Trustee to:
(i) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively the
purposes hereof including by making the necessary filings of financing
statements or amendments thereto within sixty days after the occurrence of any
of the following: (A) any change in the Issuer's name, (B) any change in the
location of the Issuer's principal place of business and (C) any merger or
consolidation or other change in the Issuer's identity or organizational
structure and by promptly notifying the Indenture Trustee of any such filings;
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(ii) perfect, publish notice of or protect the validity of any
Grant made or to be made by this Indenture;
(iii) enforce the rights of the Indenture Trustee and the
Noteholders in any of the Collateral; or
(iv) preserve and defend title to the Trust Estate and the
rights of the Indenture Trustee and the Noteholders in such Trust Estate against
the claims of all Persons and parties,
and the Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute at the expense and written direction of the Issuer
any financing statement, continuation statement or other instrument required by
the Indenture Trustee pursuant to this Section 3.5.
SECTION III.6 Opinions as to Trust Estate
(a) On the Closing Date, the Issuer shall furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording and
filing of this Indenture, 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) On or before March 15 in each calendar year, beginning
March 15, 1999, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the execution and filing of any financing
statements and continuation statements as is necessary to maintain the lien and
security interest created by this Indenture and reciting the details of such
action or stating that in the opinion of such counsel no such action is
necessary to maintain the lien and security interest created by this Indenture.
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 March 15 in
the following calendar year.
SECTION III.7 Performance of Obligations; Servicing of
Receivables
(a The Issuer shall not take any action and shall use its
reasonable 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 otherwise expressly provided in this Indenture, the Sale
and Servicing Agreement, the Administration Agreement or any other Basic
Documents.
(b The 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 the Indenture Trustee in the Basic Documents or an
Officers' Certificate of the Issuer shall be deemed to be action taken by the
Issuer. Initially, the Issuer has contracted with the Servicer and the
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Administrator to assist the Issuer in performing its duties under this
Indenture.
(c The Issuer shall 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 filing or causing to be filed all UCC financing statements and
continuation statements required to be filed under the terms of this Indenture
and the Sale and Servicing Agreement in accordance with and within the time
periods provided for herein and therein.
(d If the Issuer shall have knowledge of the occurrence of an
Event of Servicing Termination under the Sale and Servicing Agreement, the
Issuer shall promptly notify in writing the Indenture Trustee and the Rating
Agencies thereof, and shall specify in such notice the response or action, if
any, the Issuer has taken or is taking with respect of such default. If an Event
of Servicing Termination shall arise from the failure of the Servicer to perform
any of its duties or obligations under the Sale and Servicing Agreement with
respect to the Receivables, the Issuer and the Indenture Trustee shall take all
reasonable steps available to them pursuant to the Sale and Servicing Agreement
to remedy such failure.
(e Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the rights
of the Indenture Trustee hereunder, the Issuer agrees that it shall not, without
the prior written consent of the Indenture Trustee or the Holders of at least a
majority in principal amount of such then outstanding Notes, as applicable in
accordance with the terms thereof, 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 any of the Basic
Documents, or waive timely performance or observance by the Servicer or the
Seller under the Sale and Servicing Agreement, the Administrator under the
Administration Agreement; provided, however, that, notwithstanding the
foregoing, no action specified in the proviso to Section 9.2 shall be taken
except in compliance with Section 9.2. If any such amendment, modification,
supplement or waiver shall be so consented to by the Indenture Trustee or such
Holders, as applicable, the Issuer agrees, promptly following a request by the
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 the
Indenture Trustee may deem necessary or appropriate in the circumstances.
SECTION III.8 Negative Covenants. So long as any Notes are
Outstanding, the Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of
the properties or assets of the Issuer, except the Issuer may (i)
collect, liquidate, sell or otherwise dispose of Receivables (including
Purchased Receivables and Liquidating Receivables), (ii) make cash
payments out of the Accounts and (iii) take other actions, in each case
as contemplated by the Basic Documents;
(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
applicable state law) or assert any claim against any present or former
Noteholder by reason of the payment of the taxes levied or assessed
upon any part of the Trust Estate;
(c) voluntarily commence any insolvency, readjustment of debt,
marshaling of assets and liabilities or other proceeding, or apply for
an order by a court or agency or supervisory authority for the
winding-up or liquidation of its affairs or any other event specified
in Section 5.1(f); or
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(d) either (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 security interest in the Trust Estate
(other than with respect to any such tax, mechanics' or other lien).
SECTION III.9 Annual Statement as to Compliance. The Issuer
shall deliver to the Indenture Trustee, with a copy to each of the Rating
Agencies, on or before March 15 of each year, beginning March 15, 1999, an
Officer's Certificate signed by an Authorized Officer, dated as of the
immediately preceding March 15, stating that:
(a) a review of the activities of the Issuer during such
fiscal 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, the Issuer has fulfilled in all material respects all
of its obligations under this Indenture throughout such year, or, if
there has been a default in the fulfillment of any such obligation,
specifying each such default known to such Authorized Officer and the
nature and status thereof. A copy of such certificate may be obtained
by any Noteholder by a request in writing to the Issuer addressed to
the Corporate Trust Office of the Indenture Trustee.
SECTION III.10 Consolidation, Merger, etc., of Issuer;
Disposition of Trust Assets
(a The Issuer shall not consolidate or merge with or into any
other Person, unless:
(i the Person (if other than the Issuer) formed by
or surviving such consolidation or merger shall be a Person organized
and existing under the laws of the United States of America, any State
or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the due and timely
payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all as
provided herein;
(ii immediately after giving effect to such merger or
consolidation, no Default shall have occurred and be continuing;
(iii the Rating Agency Condition shall have been
satisfied with respect to such transaction and such Person for each
then outstanding class of Notes;
(iv any action as is necessary to maintain the lien
and security interest created by this Indenture shall have been
completed; and
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(v the Issuer shall have delivered to the Indenture
Trustee an Officers' Certificate and an Opinion of Counsel addressed to
the Issuer, each stating:
(A) that such consolidation or merger and
such supplemental indenture comply with this Section 3.10;
(B) that such consolidation or merger and
such supplemental indenture shall have no material adverse tax
consequence to the Issuer or any Securityholder; and
(C) that all conditions precedent herein
provided for in this Section 3.10 have been complied with,
which shall include any filing required by the Exchange Act.
(b) Except as otherwise expressly permitted by this Indenture
or the other Basic Documents, the Issuer shall not sell, convey, exchange,
transfer or otherwise dispose of any of its properties or assets, including
those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires such properties or
assets of the Issuer (A) shall be a United States citizen or a Person
organized and existing under the laws of the United States of America
or any State and (B) by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee:
(1) expressly assumes the due and punctual
payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of
this Indenture on the part of the Issuer to be performed or
observed, all as provided herein;
(2) expressly agrees that all right, title
and interest so sold, conveyed, exchanged, transferred or
otherwise disposed of shall be subject and subordinate to the
rights of Noteholders;
(3) unless otherwise provided in such
supplemental indenture, expressly agrees to indemnify, defend
and hold harmless the Issuer against and from any loss,
liability or expense arising under or related to this
Indenture and the Notes; and
(4) expressly agrees that such Person (or if
a group of Persons, then one specified Person) shall make all
filings with the Commission (and any other appropriate Person)
required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction and such Person for each then
outstanding class of Notes;
(iv) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
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(v) the Issuer shall have delivered to the Indenture Trustee
an Officers' Certificate and an Opinion of Counsel addressed to the
Issuer, each stating that:
(A) such sale, conveyance, exchange,
transfer or disposition and such supplemental indenture comply
with this Section 3.10;
(B) such sale, conveyance, exchange,
transfer or disposition and such supplemental indenture have
no material adverse tax consequence to the Issuer or to any
Noteholders or Certificateholders; and
(C) that all conditions precedent herein
provided for in this Section 3.10 have been complied with,
which shall include any filing required by the Exchange Act.
SECTION III.11 Successor or Transferee
(a Upon any consolidation or merger of the Issuer in
accordance with Section 3.10(a), the Person formed by or surviving such
consolidation or merger (if other than the Issuer) shall succeed to, and be
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the
Issuer herein.
(b Upon a conveyance or transfer of all the assets and
properties of the Issuer pursuant to Section 3.10(b), the Issuer shall be
released from every covenant and agreement of this Indenture to be observed or
performed on the part of the Issuer with respect to the Securityholders
immediately upon the delivery of written notice to the Indenture Trustee from
the Person acquiring such assets and properties stating that the Issuer is to be
so released.
SECTION III.12 No Other Business. The Issuer shall not engage
in any business or activity other than acquiring, holding and managing the
Collateral and the proceeds therefrom in the manner contemplated by the Basic
Documents, issuing the Securities, making payments on the Securities and such
other activities that are necessary, suitable, desirable or convenient to
accomplish the foregoing or are incidental thereto, as set forth in Section 2.3
of the Trust Agreement.
SECTION III.13 No Borrowing. The Issuer shall not issue,
incur, assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness for money borrowed other than indebtedness for money borrowed
in respect of the Notes or in accordance with the Basic Documents.
SECTION III.14 Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by this Indenture or the other Basic
Documents, the 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 III. 15 Servicer's Obligations. The Issuer shall use
its best efforts to cause the Servicer to comply with its obligations under
Sections 3.9, 3.10 and 3.11 of the Sale and Servicing Agreement.
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SECTION III.16 Capital Expenditures. The Issuer shall not make
any expenditure (whether by long-term or operating lease or otherwise) for
capital assets (either real, personal or intangible property) other than the
purchase of the Receivables and other property and rights from the Seller
pursuant to the Sale and Servicing Agreement.
SECTION III.17 Restricted Payments. Except for payments of
principal or interest on or redemption of the Notes, so long as any Notes are
Outstanding, the 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 the Owner Trustee or any owner of a beneficial
interest in the Issuer or otherwise, in each case with respect to any
ownership or equity interest or similar security in or of the Issuer or
to the Servicer;
(b redeem, purchase, retire or otherwise acquire for value
any such ownership or equity interest or similar security; or
(c set aside or otherwise segregate any amounts for any such
purpose;
provided, however, that the Issuer may make, or cause to be made, distributions
to the Servicer, the Seller, the Indenture Trustee, the Owner Trustee and the
Certificateholders as permitted by, and to the extent funds are available for
such purpose under, the Sale and Servicing Agreement, the Trust Agreement or the
other Basic Documents. The Issuer shall not, directly or indirectly, make
payments to or distributions from the Collection Account except in accordance
with the Basic Documents.
SECTION III.18 Notice of Events of Default. The Issuer agrees
to give the Indenture Trustee and the Rating Agencies prompt written notice of
each Event of Default hereunder, each Event of Servicing Termination, and each
default on the part of the Seller of its obligations under the Sale and
Servicing Agreement.
SECTION III.19 Further Instruments and Acts. Upon request of
the Indenture Trustee, the Issuer shall 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 III.20 Indenture Trustee's assignment of Purchased
Receivables. Upon receipt of the Repurchase Amount with respect to a Purchased
Receivable, the Indenture Trustee shall assign, without recourse, representation
or warranty to the Servicer or the Seller, as applicable, all of the Indenture
Trustee's right, title and interest in and to such repurchased Receivable, all
monies due thereon, the security interest in the related Financed Vehicle or
Financed Vehicle, proceeds arising thereafter from any Insurance Policies with
respect to such Receivable, rights relating to the Receivables under the Dealer
Agreements and Dealer Assignments, such assignment being an assignment outright
and not for security; and the Servicer or the Seller, as applicable, shall
thereupon own such Receivable, and all such security and documents, free of any
further obligation to the Indenture Trustee or the Securityholders with respect
thereto. If in any enforcement suit or legal proceeding it is held that the
Servicer may not enforce a Receivable on the ground that it is not a real party
in interest or a holder entitled to enforce such Receivable, the Indenture
Trustee shall, at the Servicer's expense, take such steps as the Servicer deems
necessary to enforce the Receivable, including bringing suit in the Indenture
Trustee's name or the names of the Securityholders.
SECTION III.21 Representations and Warranties by the Issuer to
the Indenture Trustee. The Issuer hereby represents and warrants to the
Indenture Trustee as follows:
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(a) Good Title. No Receivable has been sold, transferred,
assigned or pledged by the Issuer to any Person other than the Indenture
Trustee; immediately prior to the conveyance of the Receivables pursuant to this
Indenture, the Issuer had good and marketable title thereto, free of any Lien;
and, upon execution and delivery of this Indenture by the Issuer, the Indenture
Trustee shall have all of the right, title and interest of the Issuer in, to and
under the Collateral, free of any Lien; and
(b) All Filings Made. All filings necessary under the UCC in
any jurisdiction to give the Indenture Trustee a first priority perfected
security interest in the Receivables and, to the extent constituting Code
Collateral, the other Collateral shall have been made. The Receivables
constitute Code Collateral.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION IV.1 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes except
as to: (i) rights of registration of transfer and exchange; (ii) substitution of
mutilated, destroyed, lost or stolen Notes; (iii) rights of Noteholders to
receive payments of principal thereof and interest thereon; (iv) Sections 3.2,
3.3, 3.4, 3.5, 3.8, 3.10, 3.11, 3.12, 3.13, 3.14, 3.16, 3.18 and 3.20; (v) the
rights, obligations and immunities of the Indenture Trustee hereunder (including
the rights of the Indenture Trustee under Section 6.7 and the obligations of the
Indenture Trustee under Sections 4.2 and 4.4); and (vi) the rights of
Noteholders as beneficiaries hereof with respect to the property so deposited
with the Indenture Trustee payable to all or any of them, and the Indenture
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to the Notes, if:
(a) either:
(10 all Notes theretofore authenticated and
delivered (other than (A) Notes that have been destroyed, lost
or stolen and that have been replaced or paid as provided in
Section 2.5 and (B) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.3) have
been delivered to the Indenture Trustee for cancellation; or
(20 all Notes not theretofore delivered to
the Indenture Trustee for cancellation:
(A) have become due and payable,
(B) will be due and payable on
their respective Final Scheduled Distribution Dates
within one year, or
(C) are to be called for
redemption within one year under arrangements
satisfactory to the Indenture Trustee for the giving
of notice of redemption by the Indenture Trustee in
the name, and at the expense, of the Issuer,
and the Issuer, in the case of (A), (B) or (C) of subsection
4.1(a)(2) above, has irrevocably deposited or caused to be
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irrevocably deposited with the Indenture Trustee cash or
direct obligations of or obligations guaranteed by the United
States of America (which will mature prior to the date such
amounts are payable), in trust for such purpose, in an amount
sufficient to pay and discharge the entire unpaid principal
and accrued interest on such Notes not theretofore delivered
to the Indenture Trustee for cancellation when due on the
Final Scheduled Distribution Dates for such Notes or the
Redemption Date for such Notes (if such Notes are to be called
for redemption pursuant to Section 10.1(a)), as the case may
be;
(b) the Issuer has paid or caused to be paid all
other sums payable hereunder by the Issuer; and
(c) the Issuer has delivered to the Indenture Trustee
an Officer's Certificate of the Issuer, an Opinion of Counsel
and (if required by the TIA or the Indenture Trustee) an
Independent Certificate from a firm of certified public
accountants, each meeting the applicable requirements of
Section 11.1(a) and each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
SECTION IV.2 Application of Trust Money. All monies deposited
with the 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 the Indenture
Trustee may determine, to the Holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest; but such
monies need not be segregated from other funds except to the extent required
herein or in the Sale and Servicing Agreement or by applicable law.
SECTION IV.3 Repayment of Monies Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
each class of Notes, all monies then held by any Paying Agent other than the
Indenture Trustee under the provisions of this Indenture with respect to each
such class of Notes shall, upon demand of the Issuer, be paid to the 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
monies.
ARTICLE V
DEFAULT AND REMEDIES
SECTION V.1 Events of Default. For the purposes of this
Indenture, "Event of Default" wherever used herein, means any one of the
following events:
(a) failure to pay any interest on any Note as and when the
same becomes due and payable, and such default shall continue
unremedied for a period of five (5) days; or
(b) except as set forth in Section 5.1(c), failure to pay any
instalment of the principal of any Note as and when the same becomes
due and payable; or
(c) failure to pay in full the outstanding principal balance
of any class of Notes by the Final Scheduled Distribution Date for
such class; or
(d) default in the observance or performance in any material
respect of any covenant or agreement of the Issuer made in this
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Indenture (other than a covenant or agreement, a default in the
observance or performance of which is specifically dealt with elsewhere
in this Section 5.1) which failure materially and adversely affects the
rights of the Noteholders, and such default shall continue or not be
cured for a period of thirty (30) days after there shall have been
given, by registered or certified mail, to the Issuer and the Seller
(or the Servicer, as applicable) by the Indenture Trustee or to the
Issuer and the Seller (or the Servicer, as applicable) and the
Indenture Trustee by the Holders of at least a majority in Principal
Amount of such Notes then outstanding, a written notice specifying such
default, demanding that it be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(e) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer or any
substantial part of the Trust Estate in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Trust Estate, or ordering the
winding-up or liquidation of the Issuer's affairs, and such decree or
order shall remain unstayed and in effect for a period of sixty (60)
consecutive days; or
(f) the commencement by the Issuer of a voluntary case under
any applicable federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by the Issuer to the
entry of an order for relief in an involuntary case under any such law,
or the consent by the Issuer to the appointment or taking possession by
a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Trust
Estate, or the making by the Issuer of any general assignment for the
benefit of creditors, or the failure by the Issuer generally to pay its
debts as such debts become due, or the taking of action by the Issuer
in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five (5) Business Days
after learning of the occurrence thereof, written notice in the form of an
Officer's Certificate of any Default under Section 5.1(d), its status and what
action the Issuer is taking or proposes to take with respect thereto.
SECTION V.2 Acceleration of Maturity; Rescission and Annulment
(a) If an Event of Default should occur and be continuing,
then and in every such case, unless the principal amount of the Notes shall have
already become due and payable, either the Indenture Trustee or the Holders of
Notes representing not less than a majority in Principal Amount of such Notes
then outstanding may declare the principal of such Notes to be immediately due
and payable, by a notice in writing to the Issuer (and to the Indenture Trustee
if given by the Noteholders) setting forth the Event or Events of Default, and
upon any such declaration the unpaid principal amount of the Notes, together
with accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable.
(b) At any time after such declaration of acceleration of
maturity of the Notes has been made and before a judgment or decree for payment
of the money due thereunder has been obtained by the Indenture Trustee as
hereinafter provided in this Article V, the Holders of Notes representing not
less than a majority in Principal Amount of such Notes then outstanding, by
written notice to the Issuer and the Indenture Trustee, may rescind and annul
such declaration and its consequences with respect to the Notes; provided, that
no such rescission and annulment shall extend to or affect any subsequent or
other Default or impair any right consequent thereto; and provided further, that
if the Indenture Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
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of such rescission and annulment or for any other reason, or such proceedings
shall have been determined adversely to the Indenture Trustee, then and in every
such case, the Indenture Trustee, the Issuer and the Noteholders, as the case
may be, shall be restored to their respective former positions and rights
hereunder, and all rights, remedies and powers of the Indenture Trustee, the
Issuer and the Noteholders, as the case may be, shall continue as though no such
proceedings had been commenced.
SECTION V.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee
(a The Issuer covenants that if there shall occur an Event of
Default under Sections 5.1(a), (b) or (c) which has not been waived pursuant to
Section 5.12, the Issuer shall, upon demand of the Indenture Trustee, pay to the
Indenture Trustee, for the benefit of the Noteholders in accordance with their
respective outstanding principal amounts, the entire amount then due and payable
on the Notes for principal and interest, with interest through the date of such
payment on the overdue principal amount of each class of Notes, at the rate
applicable to such class of Notes, and in addition thereto such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee and its agents and counsel.
(b If the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the monies adjudged or decreed to be
payable.
(c If an Event of Default occurs and is continuing, the
Indenture Trustee may, 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 the Indenture Trustee shall deem
most effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy or
legal or equitable right vested in the Indenture Trustee by this Indenture or by
applicable law.
(d If there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust Estate, Proceedings under Title 11 of the United States
Code or any other applicable federal or state bankruptcy, insolvency or other
similar law, or if a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Issuer or other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Indenture Trustee,
irrespective of whether the principal of any Notes shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section 5.3, shall be entitled and empowered, by intervention in such
Proceedings or otherwise:
(i to file and prove a claim or claims for the
entire amount of the unpaid principal and interest owing in respect of
the Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the
Indenture Trustee and each predecessor trustee, and their respective
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agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor trustee, except as a result of negligence
or bad faith) and of the Noteholders allowed in such Proceedings;
(ii unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes in any election
of a trustee, a standby trustee or Person performing similar functions
in any such Proceedings;
(iii to collect and receive any monies 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 the Indenture Trustee on their behalf; and
(iv to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Holders of Notes allowed in any
judicial proceedings relative to the Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, if the Indenture Trustee shall consent
to the making of payments directly to such Noteholders, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover reasonable compensation to
the Indenture Trustee, each predecessor trustee and their respective agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor trustee, except as
a result of negligence or bad faith.
(e Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such Proceedings instituted
by the Indenture Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor trustee and their respective agents and attorneys, shall be first
for the ratable benefit of the Class A Noteholders until the Class A Notes have
been paid full and then for the benefit of the Class B Noteholders.
(g In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Noteholders, and it shall not be
necessary to make any Noteholder a party to any such Proceedings.
SECTION V.4 Remedies; Priorities
(a If an Event of Default shall have occurred and be
continuing and the Notes have been accelerated under Section 5.2(a), the
Indenture Trustee may do one or more of the following (subject to Section 5.5):
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(i institute Proceedings in its own name and as
trustee of an express trust for the collection of all amounts then due
and payable on the Notes or under this Indenture with respect thereto,
whether by declaration of acceleration or otherwise, enforce any
judgment obtained, and collect from the Issuer and any other obligor
upon such Notes monies adjudged due;
(ii institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to the
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 the Indenture Trustee and such Noteholders;
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 or elect to have
the Issuer maintain possession of the Receivables and continue to apply
collections on such Receivables as if there had been no declaration of
acceleration; provided, however, that the Indenture Trustee may not
sell or otherwise liquidate the Trust Estate following an Event of
Default and acceleration of the Notes, unless (A) the Holders of all
such Outstanding Notes consent to such sale, (B) the proceeds of such
sale or liquidation distributable to the Noteholders are sufficient to
discharge in full the principal of and the accrued interest on such
Outstanding Notes at the date of such sale or liquidation or (C) (i)
there has been an Event of Default under Section 5.1(a), (b) or (c) or
otherwise arising from a failure to make a required payment of
principal on any Notes, (ii) the Indenture Trustee determines that the
proceeds of Receivables will not continue to provide sufficient funds
for the payment of principal of and interest on the Notes as and when
they would have become due if the Notes had not been declared due and
payable and (iii) the Indenture Trustee obtains the consent of Holders
of sixty-six and two-thirds percent of the aggregate outstanding
principal amount of such Notes. In determining such sufficiency or
insufficiency with respect to clauses (B) and (C), the Indenture
Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
(b If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out or deposit such money or property
in the following order:
FIRST: to the Indenture Trustee for amounts due
under Section 6.7; and
SECOND: to the Collection Account, for distribution.
SECTION V.5 Optional Preservation of the Trust Estate. If the
Notes have been declared to be due and payable under Section 5.2(a) following an
Event of Default and such declaration and its consequences have not been
rescinded and annulled in accordance with Section 5.2(b), the Indenture Trustee
may, but need not, elect to take and 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 the Indenture Trustee shall take such desire into account when
determining whether or not to take and maintain possession of the Trust Estate.
In determining whether to take and maintain possession of the Trust Estate, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
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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 V.6 Limitation of Suite. 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:
(i such Holder has previously given written notice
to the Indenture Trustee of a continuing Event of Default;
(ii the Holders of not less than a majority in
principal amount of the Outstanding Notes have made written request to
the Indenture Trustee to institute such Proceeding in respect of such
Event of Default in its own name as Indenture Trustee hereunder;
(iii such Holder or Holders have offered to the
Indenture Trustee indemnity satisfactory to it against the costs,
expenses and liabilities to be incurred in complying with such request;
(iv the Indenture Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has failed to
institute such Proceedings; and
(v no direction inconsistent with such written
request has been given to the Indenture Trustee during such 60-day
period by the Holders of a majority in principal amount of such
Outstanding Notes;
it being understood and intended that no Holder or Holders of Notes shall have
any right in any manner whatsoever 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 of Notes or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable (on the basis of
the respective aggregate amount of principal and interest, respectively, due and
unpaid on the Notes held by each Noteholder) and common benefit of all
Noteholders. For the protection and enforcement of the provisions of this
Section 5.6, each and every Noteholder shall be entitled to such relief as can
be given either at law or in equity.
If the 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 in principal amount of such Outstanding
Notes, the Indenture Trustee in its sole discretion may determine what action,
if any, shall be taken, notwithstanding any other provisions of this Indenture
and the Indenture Trustee shall not be liable for any action taken pursuant to
this Section 5.
SECTION V.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 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, if applicable, 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 V.8 Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any
right or remedy under this Indenture and such Proceeding has been discontinued
or abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
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Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally to their respective former positions
hereunder, and thereafter all rights and remedies of the Indenture Trustee and
the Noteholders shall continue as though no such Proceeding had been instituted.
SECTION V.9 Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the Noteholders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION V.10 Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee or any Holder of any Note to exercise any
right or remedy accruing upon any Default shall impair any such right or remedy
or constitute a waiver of any such Default or an acquiescence therein. Every
right and remedy given by this Article V or by law to the Indenture Trustee or
to the Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the Indenture Trustee or by the Noteholders, as the case
may be.
SECTION V.11 Control by Noteholders. The Holders of a majority
in principal amount of such Outstanding Notes shall, subject to provision being
made for indemnification against costs, expenses and liabilities in a form
satisfactory to the Indenture Trustee, have the right to direct the time, method
and place of conducting any Proceeding for any remedy available to the Indenture
Trustee with respect to the Notes or exercising any trust or power conferred on
the Indenture Trustee; provided, however, that:
(i such written direction shall not be in conflict
with any rule of law or with this Indenture;
(ii subject to the express terms of Section 5.4, any
written direction to the Indenture Trustee to sell or liquidate the
Trust Estate shall be by the Holders of Notes representing 100% of the
Outstanding Amount of the Class A Notes (or, if the Class A Notes have
been paid in full, 100% of the Outstanding Amount of the Class B
Notes);
(iii if the conditions set forth in Section 5.5 have
been satisfied and the Indenture Trustee elects to retain the Trust
Estate pursuant to Section 5.5, then any written direction to the
Indenture Trustee by Holders of Notes representing less than 100% of
the Outstanding Amount of the Class A Notes (or, if the Class A Notes
have been paid in full, 100% of the Outstanding Amount of the Class B
Notes) to sell or liquidate the Trust Estate shall be of no force and
effect; and
(iv the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee that is not inconsistent with
such written direction;
provided, however, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might cause it to incur any liability (a)
with respect to which the Indenture Trustee shall have reasonable grounds to
believe that indemnity satisfactory to it against such liability is not assured
to it and (b) which might materially adversely affect the rights of any
Noteholders not consenting to such action.
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SECTION V.12 Waiver of Past Defaults
(a) Prior to the declaration of the acceleration of the
maturity of the Notes as provided in Section 5.2(a), the Holders of not less
than a majority in principal amount of such Outstanding Notes may waive any past
Default and its consequences except a Default (i) in the payment of principal of
or interest on any of the Notes or (ii) in respect of a covenant or provision
hereof which cannot be modified or amended without the waiver or consent of the
Holder of such Outstanding Notes. In the case of any such waiver, the Issuer,
the Indenture Trustee and the Noteholders shall be restored to their respective
former positions and rights hereunder; but no such waiver shall extend to or
affect any subsequent or other Default or impair any right consequent thereto.
(b) 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 and for purposes of Section
8.1(a)(ii) of the Sale and Servicing Agreement; but no such waiver shall extend
to or affect any subsequent or other Default or impair any right consequent
thereto.
SECTION V.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 Proceeding for the enforcement of any right or remedy under this Indenture,
or in any Proceeding against the Indenture Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
Proceeding of an undertaking to pay the costs of such Proceeding, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such Proceeding,
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 5.13 shall not apply to:
(a) any Proceeding instituted by the Indenture Trustee;
(b) any Proceeding instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% in principal
amount of such Outstanding Notes; or
(c) any Proceeding 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 V.14 Waiver of Stay of Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it shall 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 adversely affect the covenants or the
performance of this Indenture. The Issuer (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not hinder, delay or impede the execution of any power
herein granted to the Indenture Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION V.15 Action Notes. The Indenture Trustee's right to
seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Noteholders shall be impaired
by the recovery of any judgment by the Indenture Trustee against the Issuer or
by the levy of any execution under such judgment upon any portion of the Trust
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Estate or upon any of the assets of the Issuer. Any money or property collected
by the Indenture Trustee shall be applied in accordance with Section 5.4(b).
SECTION V.16. Performance and Enforcement of Certain
Obligations. If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of at least a majority in principal amount of such Notes then
Outstanding shall, exercise all rights, remedies, powers, privileges and claims
of the Issuer against the Seller or Servicer under or in connection with the
Sale and Servicing Agreement, including the right or power to take any action to
compel or secure performance or observance by each of the Seller or Servicer of
its obligations to the Issuer thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Sale and Servicing
Agreement, and any right of the Issuer to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION VI.1 Duties of Indenture Trustee
(a) If an Event of Default has occurred and is continuing of
which an Authorized Officer of the Indenture Trustee shall have been given
written notice of or have actual knowledge of, the Indenture Trustee shall
exercise the rights and powers vested in it by this Indenture and use the same
degree of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture and the Sale and Servicing Agreement and no implied covenants
or obligations shall be read into this Indenture, the Sale and
Servicing Agreement or any other Basic Document against the Indenture
Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture; provided, however,
that the Indenture Trustee shall examine the certificates and opinions
to determine whether or not they conform to any applicable requirements
of this Indenture.
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(i) this Section 6.1(c) does not limit the effect
of Section 6.1(b);
(ii) the Indenture Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer
unless it is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
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accordance with a direction received by it pursuant to Section 5.11.
(d) The Indenture Trustee shall not be liable for interest on
any money received by it except as the Indenture Trustee may agree in writing
with the Issuer.
(e) Money held in trust by the 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 the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayments of such funds or indemnity reasonably satisfactory to the Indenture
Trustee against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the
Indenture Trustee shall be subject to the provisions of this Section 6.1 and to
the provisions of the TIA.
SECTION VI.2 Rights of Indenture Trustee
(a) The Indenture Trustee may conclusively rely and shall be
fully protected in relying on any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Indenture Trustee need
not calculate or verify any information set forth in the Servicer's Certificate.
The Indenture Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Indenture Trustee acts or refrains from acting,
it may require and shall be entitled to receive an Officer's Certificate from
the Issuer or an Opinion of Counsel that such action or omission is required or
permissible hereunder. The Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Officer's
Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of, or for
the supervision of, any such agent, attorney, custodian or nominee appointed
with due care by it hereunder.
(d) The 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, however, that the Indenture Trustee's
conduct does not constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability 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.
(f) The Indenture Trustee shall not be charged with knowledge
of an Event of Default unless an Authorized Officer obtains actual knowledge of
such an event or the Indenture Trustee receives written notice of such Event of
Default.
SECTION VI.3 Indenture Trustee May Own Notes. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
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of Notes and may otherwise deal with the Issuer, the Servicer or any of their
respective Affiliates with the same rights it would have if it were not
Indenture Trustee; provided, however, that the Indenture Trustee shall comply
with Sections 6.10 and 6.11. Any Paying Agent, Note Registrar, co-registrar or
co-paying agent may do the same with like rights.
SECTION VI.4 Indenture Trustee's Disclaimer. The Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Issuer's use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Issuer in the Indenture or in any document
issued in connection with the sale of the Notes or in the Notes other than the
Indenture Trustee's certificate of authentication. Except as expressly set forth
in the Sale and Servicing Agreement and the Indenture, the Indenture Trustee
shall have no obligation to administer, service or collect the Receivables or to
maintain or otherwise supervise the administration, servicing or collection of
the Receivables. The Indenture Trustee shall have no duty to monitor the
performance of the Servicer nor shall it have any liability in connection with
the malfeasance or nonfeasance by the Servicer. The Indenture Trustee shall have
no liability in connection with compliance by the Servicer with statutory or
regulatory requirements related to the Receivables or any provision of this
Indenture, the Sale and Servicing Agreement or any related instrument or
agreement. The Indenture Trustee shall not make or be deemed to have made any
representations or warranties with respect to the applicable Basic Documents or
the validity or sufficiency of any assignment of the Receivables to the
Indenture Trustee.
SECTION VI.5 Notice of Defaults. If a Default occurs and is
continuing and only if it is actually known to an Authorized Officer of the
Indenture Trustee, the Indenture Trustee shall mail to each Noteholder notice of
the Default within 60 days after it occurs. Except in the case of a Default in
payment of principal of or interest on any Note, the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Noteholders.
SECTION VI.6 Reports by Indenture Trustee to Holders. The
Indenture Trustee shall deliver to each Noteholder the information and documents
set forth in Section 7.4, and, in addition, all such information with respect to
the Notes as may be required, as specified by the Servicer, to enable such
Holder to prepare its federal and state income tax returns.
SECTION VI.7 Compensation; Indemnity
(a) The Issuer shall cause the Servicer to pay to the
Indenture Trustee from time to time such compensation for its services as shall
be agreed upon in writing. The Indenture Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall cause the Servicer to reimburse the Indenture Trustee for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Indenture Trustee's agents, counsel, accountants and experts. The Issuer shall
cause the Servicer pursuant to the Sale and Servicing Agreement to indemnify the
Indenture Trustee in accordance with Section 6.2 of the Sale and Servicing
Agreement.
(b) The Issuer's obligations to the Indenture Trustee pursuant
to this Section 6.7 shall survive the discharge of this Indenture and the
resignation and removal of the Indenture Trustee. When the Indenture Trustee
incurs expenses after the occurrence of a Default specified in Section 5.1(e) or
(f) with respect to the Issuer or an Event of Servicing Termination specified in
Section 7.1 of the Sale and Servicing Agreement with respect to the Servicer,
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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 VI.8 Replacement of Indenture Trustee
(a) The Indenture Trustee may at any time give notice of its
intent to resign by so notifying the Issuer; provided, however, that no such
resignation shall become effective and the Indenture Trustee shall not resign
prior to the time set forth in Section 6.8(c). The Holders of a majority in
principal amount of such Outstanding Notes may remove the Indenture Trustee by
so notifying the Indenture Trustee and may appoint a successor Indenture
Trustee. Such resignation or removal shall become effective in accordance with
Section 6.8(c). The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with
Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes
charge of the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes
incapable of acting.
(b) If the Indenture Trustee gives notice of its intent to
resign or is removed or if a vacancy exists in the office of the Indenture
Trustee for any reason (the Indenture Trustee in such event being referred to
herein as the retiring Indenture Trustee), the Issuer shall promptly appoint and
designate an Eligible Institution as the successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written
acceptance of its appointment and designation to the retiring Indenture Trustee
and to the 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 the Indenture Trustee under this
Indenture; provided, however, that all amounts due and owing the retiring
Indenture Trustee have been paid. The successor Indenture Trustee shall mail a
notice of its succession to Noteholders and to each of the Rating Agencies. The
retiring Indenture Trustee shall promptly transfer all property held by it as
Indenture Trustee to the successor Indenture Trustee.
(d) If a successor Indenture Trustee does not take office
within 60 days after the retiring Indenture Trustee gives notice of its intent
to resign or is removed, the retiring Trustee, the Issuer or the Holders of a
majority in principal amount of such Outstanding Notes may petition any court of
competent jurisdiction for the appointment and designation of a successor
Indenture Trustee.
(e) If the Indenture Trustee fails to comply with Section
6.11, any Noteholder may petition any court of competent jurisdiction for the
removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee.
(f) Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section 6.8, the Issuer's obligations under Section 6.7 and the
Servicer's corresponding obligations under the Sale and Servicing Agreement
shall continue for the benefit of the retiring Indenture Trustee.
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SECTION VI.9 Merger or Consolidation of Indenture Trustee
(a) Any corporation into which the Indenture Trustee may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Indenture Trustee shall be a party, or
any corporation succeeding to the corporate trust business of the Indenture
Trustee, shall be the successor of the Indenture Trustee under this Indenture;
provided, however, that such corporation shall be eligible under the provisions
of Section 6.11, without the execution or filing of any instrument or any
further act on the part of any of the parties to this Indenture, anything in
this Indenture to the contrary notwithstanding. Following such merger or
consolidation, the successor Indenture Trustee shall mail a notice of such
merger or consolidation to each of the Rating Agencies.
(b) If at the time such successor or successors by merger or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture, any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee. In all such cases such certificate of
authentication shall have the same full force as is provided anywhere in the
Notes or herein with respect to the certificate of authentication of the
Indenture Trustee.
SECTION VI.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee
(a) Notwithstanding any other provisions of this Indenture, at
any time, for the purpose of meeting any legal requirement of any jurisdiction
in which any part of the Trust Estate or any Financed Vehicle may at the time be
located, the Indenture Trustee shall have the power and may execute and deliver
all instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
Trust Estate, and to vest in such Person or Persons, in such capacity and for
the benefit of the Noteholders and (only to the extent expressly provided
herein) the Certificateholders, such title to the Trust Estate, or any part
hereof, and, subject to the other provisions of this Section 6.10, such powers,
duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.8.
(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 the Indenture Trustee shall be conferred or
imposed upon and exercised or performed by the Indenture Trustee and
such separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act separately
without the Indenture Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular
act or acts are to be performed the Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Indenture
Trustee;
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(ii) no trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept
the resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer to
this Indenture and the conditions of this Article VI. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the 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, the Indenture Trustee. Every such instrument
shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee, its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Indenture Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
SECTION VI.11 Eligibility; Disqualification
(a) The Indenture Trustee shall at all times satisfy the
requirements of TIA ' 310(a) and Section 26(a)(1) of the Investment Company Act.
The Indenture Trustee shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition and (i) a rating of at least P-1 from Moody's and A-l+ from S&P with
respect to short-term deposit obligations, and (ii) if such institution has
issued long-term unsecured debt obligations, a rating of A2 or higher from
Moody's and AA- or higher from S&P with respect to long-term unsecured debt
obligations. The Indenture Trustee shall comply with TIA ' 310(b); provided,
however, that there shall be excluded from the operation of TIA ' 310(b)(1) any
indenture or indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA ' 310(b)(1)
are met.
(b) If a Default occurs and is continuing, and the Indenture
Trustee is deemed to have a conflicting interest as a result of acting as
trustee for both the Class A Notes and the Class B Notes, the Issuer shall
appoint, at the Issuer's expense, a successor Indenture Trustee for the Class B
Notes, so that there will be separate Indenture Trustees for the Class A Notes
and the Class B Notes. No such event shall alter the voting rights of the Class
A Noteholders or Class B Noteholders under this Indenture or any other Basic
Document. However, so long as any amounts remain unpaid with respect to the
Class A Notes, only the Indenture Trustee for the Class A Noteholders will have
the right to exercise remedies under this Indenture (but subject to the express
provisions of Section 5.4 and to the right of the Class B Noteholders to receive
their share of any proceeds of enforcement, subject to the subordination of the
Class B Notes to the Class A Notes as described herein) to make deposits to and
withdrawals from the Accounts, hold Account Property and to make distributions
to Noteholders from the Note Distribution Account. Upon repayment of the Class A
Notes in full, all rights to exercise remedies under the Indenture will transfer
to the Indenture Trustee for the Class B Notes.
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(c) In the case of the appointment hereunder of a successor
Indenture Trustee with respect to any class of Notes, the Issuer, the retiring
Indenture Trustee and the successor Indenture Trustee with respect to such class
of Notes shall execute and deliver an indenture supplemental hereto wherein the
successor Indenture Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, the successor Indenture Trustee all the rights,
powers, trusts and duties of the retiring Indenture Trustee with respect to the
Notes of the class to which the appointment of such successor Indenture Trustee
relates, (ii) if the retiring Indenture Trustee is not retiring with respect to
all classes of Notes, shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties of the
retiring Indenture Trustee with respect to the Notes of each class as to which
the retiring Indenture Trustee is not retiring shall continue to be vested in
the retiring Indenture Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Indenture Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that each
such Indenture Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such
Indenture Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Indenture Trustee shall
become effective to the extent provided therein.
SECTION VI.12 Preferential Collection of Claims Against
Issuer. The Indenture Trustee shall comply with TIA ' 311(a), excluding any
creditor relationship listed in TIA ' 311(b). A trustee who has resigned or been
removed shall be subject to TIA ' 311(a) to the extent indicated.
SECTION VI.13 Representations and Warranties of Indenture
Trustee. The Indenture Trustee represents and warrants as of the Closing Date
that:
(a) the Indenture Trustee is a New York banking corporation
duly organized, validly existing and in good standing under the laws of the
State of New York and the eligibility requirements set forth in Section 6.11 are
satisfied with respect to the Indenture Trustee;
(b) the Indenture Trustee has full power, authority and legal
right to execute, deliver and perform this Indenture, and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Indenture; and
(c) this Indenture has been duly executed and delivered by the
Indenture Trustee and constitutes the legal, valid and binding agreement of the
Indenture Trustee, enforceable in accordance with its terms, subject as to
enforceability, to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the enforcement of
creditors= rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in equity).
SECTION VI.14 Indenture Trustee May Enforce Claims Without
Possession of Notes. All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Indenture Trustee
shall be brought in its own name as Indenture Trustee. Any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, its agents and counsel, be
for the ratable benefit of the Noteholders and (only to the extent expressly
provided herein) the Certificateholders in respect of which such judgment has
been obtained.
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SECTION VI.15 Suit for Enforcement. If an Event of Default
shall occur and be continuing, the Indenture Trustee in its discretion may,
subject to the provisions of Section 6.1, proceed to protect and enforce its
rights and the rights of the Noteholders under this Indenture by a Proceeding
whether for the specific performance of any covenant or agreement contained in
this Indenture or in aid of the execution of any power granted in this Indenture
or for the enforcement of any other legal, equitable or other remedy as the
Indenture Trustee, being advised by counsel, shall deem most effectual to
protect and enforce any of the rights of the Indenture Trustee or the
Noteholders.
SECTION VI.16 Rights of Noteholders to Direct Indenture
Trustee. Holders of Notes evidencing not less than a majority in principal of
the Outstanding Notes shall have the right to direct in writing the time, method
and place of conducting any Proceeding for any remedy available to the Indenture
Trustee or exercising any trust or power conferred on the Indenture Trustee;
provided, however, that subject to Section 6.1, the Indenture Trustee shall have
the right to decline to follow any such direction if the Indenture Trustee being
advised by counsel determines that the action so directed may not lawfully be
taken, or if the Indenture Trustee in good faith shall, by a Responsible
Officer, determine that the proceedings so directed would be illegal or subject
it to personal liability or be unduly prejudicial to the rights of Noteholders
not parties to such direction; and provided, further, that nothing in this
Indenture shall impair the right of the Indenture Trustee to take any action
deemed proper by the Indenture Trustee and which is not inconsistent with such
direction by the Noteholders.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION VII.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders. The Issuer shall furnish or cause to be furnished by
the Servicer to the Indenture Trustee (a) not more than five days before each
Distribution Date, a list, in such form as the Indenture Trustee may reasonably
require, of the names and addresses of the Holders of Notes as of the close of
business on the Record Date, and (b) at such other times as the Indenture
Trustee may request in writing, within 14 days after receipt by the Issuer of
any such request, a list of similar form and content as of a date not more than
10 days prior to the time such list is furnished; provided, however, that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
SECTION VII.2 Preservation of Information, Communications to
Noteholders
(a) The Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.1 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.1 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.
(c) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA ' 312(c).
SECTION VII.3 Reports by Issuer
(a) If required, the Issuer shall:
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(i) file with the Indenture Trustee, within 15 days
after the Issuer is required to file the same with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the
Commission in accordance with rules and regulations prescribed from
time to time by the Commission such additional information, documents
and reports with respect to compliance by the Issuer with the
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall, upon written request, transmit by mail to all
Noteholders described in TIA ' 313(c)) such summaries of any
information, documents and reports required to be filed by the Issuer
pursuant to clauses (i) and (ii) of this Section 7.3(a) as may be
required by rules and regulations prescribed from time to time by the
Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of
the Issuer shall end on [December 31] of such year.
SECTION VII.4 Reports by Indenture Trustee
(a) If required by TIA ' 313(a), within 60 days after each
February 1, beginning with February 1, 1999, the 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). The Indenture Trustee also shall comply with
TIA ' 313(b). A copy of any report delivered pursuant to this Section 7.4(a)
shall, at the time of its mailing to Noteholders, be filed by the Indenture
Trustee with the Commission and each stock exchange, if any, on which the Notes
are listed. The Issuer shall notify the Indenture Trustee in writing if and when
the Notes are listed on any stock exchange.
(b) On each Distribution Date, the Indenture Trustee shall
forward to each Noteholder a copy of the statement for the related Monthly
Period as required pursuant to Section 4.7 of the Sale and Servicing Agreement.
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ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION VIII.1 Collection of Money. Except as otherwise
expressly provided herein, the Indenture Trustee may demand payment or delivery
of, and shall receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it as
provided in this Indenture and the Sale and Servicing Agreement. Except as
otherwise expressly provided in this Indenture or in Article III of the Sale and
Servicing Agreement, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of the Trust Estate,
the Indenture Trustee may take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim an
Event of Default under this Indenture and any right to proceed thereafter as
provided in Article V.
SECTION VIII.2 Accounts; Payments
(a) On or prior to the Closing Date, the Issuer shall cause
the Servicer to establish and maintain, in the name of the Indenture Trustee,
for the benefit of the Securityholders, the Accounts as provided in Article IV
of the Sale and Servicing Agreement.
(b) On each Deposit Date, the Indenture Trustee shall cause
all withdrawals, deposits, transfers and distributions provided for in Section
4.5(b) of the Sale and Servicing Agreement to be made. On each Deposit Date, the
Indenture Trustee shall make the distributions from the Collection Account
provided for in Section 4.5(c) of the Sale and Servicing Agreement.
(c) On each Distribution Date, the Indenture Trustee shall
distribute all amounts on deposit in the Note Distribution Account in accordance
with the Servicer's Certificate, to the Noteholders 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:
(i) (A) first, to accrued and unpaid interest on
the Class A Notes; provided, however, that if there are not sufficient
funds in the Note Distribution Account to pay the entire amount of
accrued and unpaid interest then due on the Class A Notes, the amount
in the Note Distribution Account shall be applied to the payment of
such interest on each Note of each class of the Class A Notes pro rata
on the basis of the respective aggregate amount of interest due on each
such class of Class A Notes; and (B) second, unless otherwise provided
in clause (iii) below, to accrued and unpaid interest on the Class B
Notes; provided, however, that if there are not sufficient funds in the
Note Distribution Account (after the payment of all accrued and unpaid
interest on the Class A Notes) to pay the entire amount of accrued and
unpaid interest then due on the Class B Notes, the amount in the Note
Distribution Account shall be applied to the payment of such interest
on each of the Class B Notes pro rata on the basis of the aggregate
amount of interest due on each such Class B Note;
(ii) unless otherwise provided in clause (iii)
below, the Principal Payment Amount shall be applied on each
Distribution Date, as follows:
(A) first, 100% of the Principal Payment
Amount to principal of the Class A Notes, all of
which shall be paid to principal of the Class
A-1 Notes until paid in full, then to principal
of the Class A-2 Notes until paid in full and
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then to principal of the Class A-3 Notes until
paid in full, and
(B) thereafter, 100% of the Principal
Payment Amount to principal of the Class B
Notes;
(iii) if the Notes have been declared immediately due
and payable as provided in Section 5.2(a) following the occurrence of
an Event of Default or if any Notes remain unpaid after the applicable
Final Scheduled Payment Date, until such time as the Class A Notes have
been paid in full and this Indenture has been discharged with respect
to the Class A Notes, any amounts remaining in the Note Distribution
Account on any Distribution Date after the application described in
Section 8.2(c)(i) (A) shall be applied in the following priority: (1)
to the repayment of principal on each of the Class A Notes pro rata on
the basis of the respective unpaid principal amount of each such Class
A Note; (2) to the repayment of interest on each of the Class B Notes
pro rata on the basis of the amount of interest due and unpaid on each
such Class B Note; and (3) to the repayment of principal on each of the
Class B Notes pro rata on the basis of the unpaid principal amount of
each such Class B Note.
SECTION VIII.3 General Provisions Regarding Accounts
(a) Subject to Section 6.1(c), the Indenture Trustee shall not
in any way be held liable by reason of any insufficiency in any of the Accounts
resulting from any loss on any Eligible Investment included therein except for
losses attributable to the Indenture Trustee's failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its commercial capacity
as principal obligor and not as trustee, in accordance with their terms. The
Indenture Trustee shall have no obligation to invest or reinvest any amounts
held in any of the Accounts in the absence of written investment direction.
(b) If (i) the Servicer shall have failed to give investment
directions for any funds on deposit in the Accounts to the Indenture Trustee by
11:00 a.m., New York City time (or such other time as may be agreed by the
Servicer and the Indenture Trustee) on any Business Day; or (ii) a 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(a), or, if such
Notes shall have been declared due and payable following an Event of Default,
but 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
the Indenture Trustee shall, to the fullest extent practicable, invest and
reinvest funds in the Accounts in the Bankers Trust money market fund; provided
such fund is an Eligible Investment or in one or more Eligible Investments until
such time as the Indenture Trustee shall receive written direction otherwise.
SECTION VIII.4 Release of Trust Estate
(a) Subject to the payment of its fees and expenses pursuant
to Section 6.7, the Indenture Trustee may, and when required by the provisions
of this Indenture shall, execute instruments to release property in the Trust
Estate from the lien of this Indenture, or convey the Indenture Trustee's
interest in the same, in a manner and under circumstances that are consistent
with the provisions of this Indenture. No party relying upon an instrument
executed by the Indenture Trustee as provided in this Article VIII shall be
bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
monies.
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding and all sums due to the Indenture Trustee pursuant to Section
6.7 have been paid, notify the Issuer thereof in writing and upon receipt of an
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Issuer Request, release any remaining portion of the Trust Estate that secured
the Notes from the lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Note Distribution
Account. The Indenture Trustee shall (i) release any remaining portion of the
Trust Estate that secured the Certificates from the lien of this Indenture and
(ii) deposit in the Certificate Distribution Account or pay as otherwise
required by the Trust Agreement any funds then on deposit in the Reserve Account
or the Collection Account only at such time as (y) there are no Notes
Outstanding and (z) all sums due to the Indenture Trustee pursuant to Section
6.7 have been paid.
SECTION VIII.5 Opinion of Counsel. The Indenture Trustee shall
receive at least seven days' written notice when requested by the Issuer to take
any action pursuant to Section 8.4(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
shall not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of the provisions of this Indenture;
provided, however, that such Opinion of Counsel shall not be required to express
an opinion as to the fair value of the 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 the Indenture
Trustee in connection with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION IX.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, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order, at any time and from time to time, may enter into
one or more indentures supplemental hereto (which shall conform to the
provisions of the TIA as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any
property at any time subject to the lien of this Indenture, or better
to assure, convey and confirm unto the Indenture Trustee any property
subject or required to be subjected to the lien of this Indenture, or
to subject additional property to the lien of this Indenture;
(ii) to evidence the succession, in compliance with
Section 3.10 and the applicable provisions hereof, of another Person to
the Issuer, and the assumption by any such successor of the covenants
of the Issuer contained herein and in the Notes;
(iii) to add to the covenants of the Issuer for the
benefit of the Securityholders, or to surrender any right or power
herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge
any property to or with the Indenture Trustee;
(v) to cure any ambiguity or to correct or
supplement any provision herein or in any supplemental indenture which
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may be inconsistent with any other provision herein, in any
supplemental indenture or in any other Basic Document;
(vi) to evidence and provide for the acceptance of
the appointment hereunder by a successor or additional Indenture
Trustee with respect to the Notes or any class thereof and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions
of this Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA, and the
Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by
an Issuer Order, may, also without the consent of any of the Noteholders but
with prior notice to the Rating Agencies, at any time and from time to time
enter into one or more indentures supplemental hereto for the purpose of adding
any provisions to, changing in any manner, or eliminating any of the provisions
of, this Indenture or modifying in any manner the rights of the Noteholders
under this Indenture; provided, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the
interests of any Noteholder.
SECTION IX.2 Supplemental Indentures With Consent of
Noteholders
(a) The Issuer and the Indenture Trustee, when authorized by
an Issuer Order, also may, with prior notice to the Rating Agencies by the
Issuer and with the consent of the Holders of not less than a majority of the
Outstanding Notes of the related Series, by Act of such Holders delivered to the
Issuer and the Indenture Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, changing in any
manner, or eliminating any of the provisions of, this Indenture or modifying in
any manner the rights of the Noteholders under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Note affected thereby:
(i) change the due date of any instalment of
principal of or interest on any Note, or reduce the principal amount
thereof, the interest rate applicable thereto, or the Redemption Price
with respect thereto, change any place of payment where, or the coin or
currency in which, any Note or any interest thereon is payable, or
impair the right to institute suit for the enforcement of the
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 aggregate amount
of the Outstanding Notes of such Series, the consent of the Holders of
which is required for (a) any such supplemental indenture, (b) any
waiver of compliance with certain provisions of this Indenture, certain
defaults hereunder and their consequences as provided for in this
Indenture or (c) any action described in Sections 2.12, 3.7(e), 5.2,
5.6, 5.11, 5.12(a), 6.8, or 6.16;
(iii) modify or alter the provisions of this
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Indenture regarding the voting of Notes held by the related Trust, any
other obligor on such Notes, the Seller or an affiliate of any of them;
(iv) reduce the percentage of the aggregate
Outstanding Amount of such Notes required to direct the Indenture
Trustee to sell or liquidate the Trust Estate pursuant to Section 5.4
if the proceeds of such sale would be insufficient to pay the principal
amount of and accrued but unpaid interest on the Outstanding Notes;
(v) modify any provision of this Section 9.2 to
decrease the required minimum percentage necessary to approve any
amendments to any provisions of this Indenture or any of the Basic
Documents;
(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 (including the calculation of any of the individual components of
such calculation), or modify or alter the provisions of the Indenture
regarding the voting of Notes held by the Issuer, the Seller or any
Affiliate of either of them; 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, terminate the lien of this Indenture on any
property at any time subject to the lien of this Indenture or deprive
the Holder of any Note of the security afforded by the lien of this
Indenture.
(b) It shall be sufficient if an Act of Noteholders approves
the substance, but not the form, of any proposed supplemental indenture.
(c) Promptly after the execution by the Issuer and the
Indenture Trustee of any supplemental indenture pursuant to this Section 9.2,
the Issuer shall mail to the Noteholders to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the 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 IX.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, the Indenture Trustee shall be entitled to
receive, and subject to Sections 6.1 and 6.2, shall be fully protected in
conclusively relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture and
that all conditions precedent to such execution have been satisfied. The
Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights, duties,
liabilities, indemnities or immunities under this Indenture or otherwise.
SECTION IX.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 the Indenture Trustee, the Issuer and the Noteholders 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.
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SECTION IX.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 TIA as then in
effect so long as this Indenture shall then be qualified under the TIA.
SECTION IX.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 the Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes of the same
class.
ARTICLE X
REDEMPTION OF NOTES
SECTION X.1 Redemption
(a) The Class A-3 Notes and Class B Notes are subject to
redemption in whole, but not in part, upon the exercise by the Servicer of its
option to purchase the Receivables pursuant to Section 9.2 of the Sale and
Servicing Agreement. Such redemption shall occur on any Distribution Date after
all Class A-1 Notes and the Class A-2 Notes have been paid in full. The purchase
price for the Class A-3 Notes and Class B Notes to be redeemed shall be equal to
the applicable Redemption Price, provided the Issuer has available funds
sufficient to pay such amount. The Issuer shall furnish the Rating Agencies
notice of such redemption. If the Class A-3 Notes and Class B Notes are to be
redeemed pursuant to this Section 10.1(a), the Issuer shall furnish notice
thereof to the Indenture Trustee not later than 10 days prior to the Redemption
Date and the Issuer shall deposit into the Note Distribution Account, before the
Redemption Date, the aggregate Redemption Price of the Class A-3 Notes and Class
B Notes to be redeemed, whereupon all such Notes shall be due and payable on the
Redemption Date.
(b) [Reserved.]
(c) Within sixty days after the redemption in full pursuant to
this Section 10.1 of any class of Notes, the Issuer shall provide each of the
Rating Agencies with written notice stating that all of such Notes have been
redeemed.
SECTION X.2 Form of Redemption Notice
(a) Notice of redemption of the Class A-3 Notes and Class B
Notes under Section 10.1(a) shall be given by the Indenture Trustee by
first-class mail, postage prepaid, mailed not less than five days prior to the
applicable Redemption Date to each Holder of the Class A-3 Notes and Class B
Notes of record, respectively, at such Noteholder's address appearing in the
Note Register.
(b) All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
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(iii) the place where Class A-3 Notes and Class B
Notes are to be surrendered for payment of the Redemption Price (which
shall be the Agency Office of the Indenture Trustee to be maintained as
provided in Section 3.2); and
(c) Notice of redemption of the Class A-3 Notes and Class B
Notes shall be given by the Indenture Trustee in the name and at the expense of
the Issuer. Failure to give notice of redemption, or any defect therein, to any
Holder of any Class A-3 Note and Class B Note to be redeemed shall not impair or
affect the validity of the redemption of any other Class A-3 Note or Class B
Note to be redeemed.
SECTION X.3 Notes Payable on Redemption Date. The Class A
Notes or Class B Notes to be redeemed shall, following notice of redemption as
required by Section 10.2, on the Redemption Date cease to be Outstanding for
purposes of this Indenture and shall thereafter represent only the right to
receive the applicable Redemption Price and (unless the Issuer shall default in
the payment of such Redemption Price) no interest shall accrue on such
Redemption Price for any period after the date to which accrued interest is
calculated for purposes of calculating such Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION XI.1 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the
Indenture Trustee to take any action under any provision of this Indenture, the
Issuer shall furnish to the Indenture Trustee: (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 11.1, except that, in the case of any
such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished. Every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(i) a statement that each signatory of such
certificate or opinion has read or has caused to be read such covenant
or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the judgment 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 with the Indenture Trustee of any
Collateral or other property or securities that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
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Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each Person signing such
certificate as to the fair value (within 60 days of such deposit) to the Issuer
of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters described in clause
(b)(i) above, the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of all other such
securities made on the basis of any such withdrawal or release since
the commencement of the then current fiscal year of the Issuer, as set
forth in the certificates delivered pursuant to clause (i) above and
this clause (b)(ii), is 10% or more of the Outstanding Amount of the
Notes, but such a certificate need not be furnished with respect to any
securities so deposited if the fair value thereof to the Issuer as set
forth in the related Officer's Certificate is less than $25,000 or less
than one percent of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any
Purchased Receivables or Liquidating Receivables, whenever any property
or securities are to be released from the lien of this Indenture, the
Issuer shall also furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each Person signing
such certificate as to the fair value (within 60 days of such release)
of the property or securities proposed to be released and stating that
in the opinion of such Person the proposed release will not impair the
security under this Indenture in contravention of the provisions
hereof.
(iv) Whenever the Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying or stating
the opinion of any signatory thereof as to the matters described in
clause (b)(iii) above, the Issuer shall also furnish to the Indenture
Trustee an Independent Certificate as to the same matters if the fair
value of the property or securities and of all other property, other
than Purchased Receivables and Liquidating 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 (b)(iii) above and this clause (b)(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 11.1, the Issuer may (A) collect, liquidate,
sell or otherwise dispose of Receivables as and to the extent permitted
or required by the Basic Documents, (B) make cash payments out of the
Accounts as and to the extent permitted or required by the Basic
Documents and (C) take any other action not inconsistent with the TIA.
SECTION XI.2 Form of Documents Delivered to Indenture Trustee
(a) 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.
43
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(b) Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, 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 certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Servicer, the Seller, the Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller, the Issuer or the Administrator, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
(c) 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.
(d) Whenever in this Indenture, in connection with any
application or certificate or report to the Indenture Trustee, it is provided
that the Issuer shall deliver any document as a condition of the granting of
such application, or as evidence of the Issuer's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of the granting
of such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Issuer to have such
application granted or to the sufficiency of such certificate or report. The
foregoing shall not, however, be construed to affect the Indenture Trustee's
right to conclusively rely upon the truth and accuracy of any statement or
opinion contained in any such document as provided in Article VI.
SECTION XI.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 or a class of Noteholders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument or
instruments are delivered to the Indenture Trustee, and, where it is hereby
expressly required, to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Noteholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes (or any one or more
predecessor Notes) shall bind the Holder of every Note issued upon the
registration thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Indenture Trustee or the
Issuer in reliance thereon, whether or not notation of such action is made upon
such Note.
44
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SECTION XI.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 the Indenture
Trustee, the Issuer or the Rating Agencies under this Indenture shall be made
upon, given or furnished to or filed with such party as specified in Section
10.5 to the Sale and Servicing Agreement.
SECTION XI.5 Notices to Noteholders; Waiver
(a) Where this Indenture provides for notice to Noteholders of
any condition or event, such notice shall be given as specified in Section 10.5
of the Sale and Servicing Agreement.
(b) Where this Indenture provides for notice in any manner,
such notice may be waived in writing by any Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Noteholders shall be filed with
the Indenture Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
(c) 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 of Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
(d) 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
an Event of Default.
SECTION XI.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the 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. The Issuer shall furnish to the
Indenture Trustee a copy of each such agreement and the Indenture Trustee shall
cause payments to be made and notices to be given in accordance with such
agreements.
SECTION XI.7 Conflict with Trust Indenture Act
(a) 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 TIA, such required provision shall control.
(b) 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 XI.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.
45
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SECTION XI.9 Successors and Assigns
(a) All covenants and agreements in this Indenture and the
Notes by the Issuer shall bind its successors and assigns, whether so expressed
or not.
(b) All covenants and agreements of the Indenture Trustee in
this Indenture shall bind its successors and assigns, whether so expressed or
not.
SECTION XI.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 XI.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, the Noteholders and the Note
Owners and (only to the extent expressly provided herein) the
Certificateholders, 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 XI.12 Legal Holidays. If 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 XI.13 Governing Law. This Indenture shall be governed
by and construed in accordance with the laws of the State of New York, without
reference to its conflict of law provisions.
SECTION XI.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 XI.15 recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such recording
is to be effected by the Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Indenture Trustee or any other counsel
reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any other
Person secured hereunder or for the enforcement of any right or remedy granted
to the Indenture Trustee under this Indenture.
SECTION XI.16 No Recourse. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under this Indenture or any certificate
or other writing delivered in connection herewith or therewith, against:
(i) the Indenture Trustee or the Owner Trustee in its
individual capacity;
(ii) any owner of a beneficial interest in the Issuer; or
(iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee or the Owner
46
<PAGE>
Trustee in their individual capacities, any holder of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or
of any successor or assign of the Indenture Trustee or the Owner
Trustee in their individual capacities (or any of their successors or
assigns), except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no
such obligations in their individual capacities) 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 instalment or call
owing to such entity. For all purposes of this Indenture, in the
performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the
terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
SECTION XI.17 No Petition. The Indenture Trustee, by entering
into this Indenture, and each Noteholder and Note Owner, by accepting a Note (or
interest therein) issued hereunder, hereby covenant and agree that they shall
not, prior to the date which is one year and one day after the termination of
this Indenture with respect to the Issuer pursuant to Section 4.1, acquiesce,
petition or otherwise invoke or cause the Issuer to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the 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 the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Issuer.
SECTION XI.18 Inspection. The Issuer agrees that, on
reasonable prior notice, it shall permit any representative of the Indenture
Trustee, during the Issuer's normal business hours, to examine all the books of
account, records, reports and other papers of the Issuer, to make copies and
extracts therefrom, to cause such books to be audited by Independent certified
public accountants, and to discuss the Issuer's affairs, finances and accounts
with the Issuer's officers, employees and Independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. The Indenture Trustee shall and shall cause its representatives to
hold in confidence all such information except to the extent disclosure may be
required by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.
SECTION XI.19 Voting Rights. Notwithstanding anything to the
contrary contained herein (other than Sections 2.15, 5.11 and 9.2 hereof), if
any of the Basic Documents discuss specific certain circumstances under which a
specified percentage of Outstanding Notes must consent, approve, direct or
request an action, such action shall be valid only if: (i) all outstanding Class
A Notes and Class B Notes voting together as a single class and (ii) all
outstanding Class A Notes voting together as a single class have voted to give
such consent, approval, direction, request or notice or take such action.
47
<PAGE>
IN WITNESS WHEREOF, the Issuer and the 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.
FIRST SECURITY AUTO OWNER TRUST 1998-1
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
By:
---------------------------
Name:
Title:
Bankers Trust Company,
as Indenture Trustee
By:
-----------------------------
Name:
Title:
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared _____________, known
to me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said First
Security Auto Owner Trust 1998-1, a Delaware business trust, and that he
executed the same as the act of said business trust for the purpose and
consideration therein expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ___ day of
__________, ____.
_______________________________________________
Notary Public in and for the State of New York.
My commission expires:
- ----------------------------
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared ______________, known
to me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said Bankers
Trust Company, a New York banking corporation, and that she executed the same as
the act of said New York banking corporation for the purpose and consideration
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ___ day of
___________, ____.
______________________________________________
Notary Public in and for the State of New York.
My commission expires:
- ----------------------------
<PAGE>
EXHIBIT A
LOCATIONS OF
SCHEDULE OF RECEIVABLES
The Schedule of Receivables is on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. First Security Bank, N.A.
<PAGE>
EXHIBIT B
REGISTERED $____________1
No. R-__
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. __________
Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Issuer or its agent for registration of transfer,
exchange or payment, and any Note issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede
& Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FIRST SECURITY AUTO OWNER TRUST 1998-1
CLASS A-__ _____% ASSET BACKED NOTES
FIRST SECURITY AUTO OWNER TRUST 1998-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum of _______________ DOLLARS ($_________)
payable in accordance with the Indenture, prior to the occurrence of an Event of
Default and a declaration that the Notes are due and 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 hereof and the
denominator of which is [aggregate principal amount for class] by (ii) the
aggregate amount, if any, payable from the Note Distribution Account in respect
of principal on such class of Notes pursuant to Sections 2.7, 3.1 and 8.2 of the
Indenture; provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on ______________ (the "Final Scheduled
Distribution Date"). The Issuer shall pay interest on this Note at the rate per
annum shown above on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date). Interest on this
Note will accrue for each Distribution Date from and including the most recent
Distribution Date on which interest has been paid to but excluding the then
current Distribution Date or, if no interest has yet been paid, from November 4,
- ------------------------------
(1) Denominations of $1,000 and integral multiples thereof.
1
<PAGE>
1998. [Interest will be computed on the actual number of days elapsed from the
most recent Distribution Date (or the Closing Date, in the case of the initial
Distribution Date) to but excluding the then current Distribution Date divided
by 360.] [Interest will be computed on the basis of a 360-day year of twelve
30-day months (or, in the case of the initial Distribution Date, 11/30ths of a
month).] Such principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America which, at the time of payment,
is legal tender for payment of public and private debts. All payments made by
the Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof or be valid or obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Date: FIRST SECURITY AUTO OWNER TRUST 1998-1,
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the Trust
Agreement
By: ______________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Date: Bankers Trust Company, not in its
individual capacity but solely as
Indenture Trustee
By: _________________________
Name:
Title:
3
<PAGE>
REVERSE OF NOTE
This Note, designated as a Class A-__ ____% Asset Backed Note,
is one of a duly authorized issue of Notes of the Issuer (herein called the
"Notes"), all issued under an Indenture, dated as of November 4, 1998 (such
Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and Bankers Trust Company, a New York banking corporation, as
trustee (the "Indenture Trustee", which term includes any successor 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 Noteholders.
The Notes are governed by and subject to all terms of the Indenture (which terms
are incorporated herein and made a part hereof), to which Indenture the holder
of this Note by virtue of acceptance hereof assents and by which such holder is
bound. All capitalized terms used and not otherwise defined in this Note that
are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture.
The Indenture secures (a) first, the payment of interest on
the Class A Notes, equally and ratably without prejudice, priority or
distinction, (b) second, the payment of principal of and interest on, and any
other amounts owing in respect of the Class B Notes, equally and ratably without
prejudice, priority or distinction, (c) third, the payment of principal on the
Class A Notes, all of which shall be paid to the Class A-1 Notes until paid in
full, then to principal of the Class A-2 Notes until paid in full and then to
principal of the Class A-3 Notes until paid in full, and (d) fourth, the payment
of principal on the Class B Notes, equally and ratably without prejudice,
priority or distinction.
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 no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee in
their individual capacities, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee in their individual
capacities, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee in their individual capacities, except as any such Person
may have expressly agreed (it being understood that the Indenture Trustee and
the Owner Trustee have no such obligations in their individual capacities) 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 instalment or call owing to
such entity.
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 by accepting the benefits of the Indenture such Noteholder will not, prior
to the date which is one year and one day after the termination of this
4
<PAGE>
Indenture with respect to the Issuer, acquiesce, petition or otherwise invoke or
cause the Issuer to invoke the process of any court or government authority for
the purpose of commencing or sustaining a case against the 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 the Issuer or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of the Issuer.
Each Noteholder, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, unless otherwise required by
appropriate taxing authorities, agrees to treat the Notes as indebtedness
secured by the Receivables for the purpose of federal income taxes, state and
local income and franchise taxes, and any other taxes imposed upon, measured by
or based upon gross or net income.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Notes of the related Series. The Indenture also
contains provisions permitting the Holders of Notes representing a majority of
the Outstanding Notes of the related Series, on behalf of the Holders of all the
Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither the Seller, the Servicer, the
Indenture Trustee nor the Owner Trustee in their respective individual
capacities, any owner of a beneficial interest in the Issuer, nor any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns, shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on, 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 solely as 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
5
<PAGE>
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
6
<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 ____________________________________, as attorney, to transfer said
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated:__________________ __________________________________2
Signature Guaranteed:
- ------------------------- ----------------------------------
___________________________
(2) 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.
7
<PAGE>
EXHIBIT C
REGISTERED $____________
No. R-__
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. 36212AC9
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY
ISSUED ON NOVEMBER 4, 1998, HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT
ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FIRST SECURITY AUTO OWNER TRUST 1998-1
CLASS B 5.95% ASSET BACKED NOTES
FIRST SECURITY AUTO OWNER TRUST 1998-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum of _______________ DOLLARS ($_________)
payable in accordance with the Indenture, prior to the occurrence of an Event of
Default and a declaration that the Notes are due and 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 hereof and the
denominator of which is the aggregate principal amount of Class B Notes
outstanding by (ii) the aggregate amount, if any, payable from the Note
Distribution Account in respect of principal on such class of Notes pursuant to
Sections 2.7, 3.1 and 8.2 of the Indenture; provided, however, that the entire
unpaid principal amount of this Note shall be due and payable on the earlier of
May 17, 2004 (the "Final Scheduled Distribution Date") and the Redemption Date,
if any, pursuant to Section 10.1(a) of the Indenture. The Issuer shall pay
interest on this Note at the rate per annum shown above on each Distribution
Date until the principal of this Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date). Interest on this Note will accrue for each Distribution Date
from and including the most recent Distribution Date on which interest has been
paid to but excluding the then current Distribution Date or, if no interest has
yet been paid, from and including November 4, 1998. Interest will be computed on
the basis of a 360-day year of twelve 30-day months (or, in the case of the
initial Distribution Date, 11/30ths of a month). Such principal of and interest
on this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America which, at the time of payment,
1
<PAGE>
is legal tender for payment of public and private debts. All payments made by
the Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the Indenture referred to
on the reverse hereof or be valid or obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Date: FIRST SECURITY AUTO OWNER TRUST 1998-1,
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee under the Trust
Agreement
By: ______________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Bankers Trust Company, not in its
individual capacity but solely as
Indenture Trustee
By: _________________________
Name:
Title:
3
<PAGE>
REVERSE OF NOTE
This Note, designated as a Class B 5.95% Asset Backed Note, is
one of a duly authorized issue of Notes of the Issuer (herein called the
"Notes"), all issued under an Indenture, dated as of November 4, 1998 (such
Indenture, as supplemented or amended, is herein called the "Indenture"),
between the Issuer and Bankers Trust Company, a New York banking corporation, as
trustee (the "Indenture Trustee", which term includes any successor 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 Noteholders.
The Notes are governed by and subject to all terms of the Indenture (which terms
are incorporated herein and made a part hereof), to which Indenture the holder
of this Note by virtue of acceptance hereof assents and by which such holder is
bound. All capitalized terms used and not otherwise defined in this Note that
are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture.
The Indenture secures (a) first, the payment of interest on
the Class A Notes, equally and ratably without prejudice, priority or
distinction and (b) second, the payment of interest on the Class B Notes,
equally and ratably without prejudice, priority or distinction, (c) third, the
payment of principal on the Class A Notes, all of which will be paid to
principal of the Class A-1 Notes until paid in full, then to principal of the
Class A-2 Notes until paid in full and then to principal of the Class A-3 Notes
until paid in full, and (d) fourth, the payment of principal on the Class B
Notes until paid in full, equally and ratably without prejudice, priority or
distinction; provided, however, that no interest shall be paid on the Class B
Notes following an Event of Default and acceleration of the Notes until all of
the principal and interest on the Class A Notes has been paid in full.
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 no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee in
their individual capacities, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee in their individual
capacities, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee in their individual capacities, except as any such Person
may have expressly agreed (it being understood that the Indenture Trustee and
the Owner Trustee have no such obligations in their individual capacities) 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 instalment or call owing to
such entity.
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 by accepting the benefits of the Indenture such Noteholder will not, prior
to the date which is one year and one day after the termination of this
Indenture with respect to the Issuer, acquiesce, petition or otherwise invoke or
cause the Issuer to invoke the process of any court or government authority for
the purpose of commencing or sustaining a case against the 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 the Issuer or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of the Issuer.
Each Noteholder, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, unless otherwise required by
4
<PAGE>
appropriate taxing authorities, agrees to treat the Notes as indebtedness
secured by the Receivables for the purpose of federal income taxes, state and
local income and franchise taxes, and any other taxes imposed upon, measured by
or based upon gross or net income.
Prior to the due presentment for registration of transfer of
this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note shall
be overdue, and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Notes of the related Series. The Indenture also
contains provisions permitting the Holders of Notes representing a majority of
the Outstanding Notes of the related Series, on behalf of the Holders of all the
Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "Issuer" as used in this Note includes any successor
to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of the Indenture
Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency herein
prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither the Seller, the Servicer, the
Indenture Trustee nor the Owner Trustee in their respective individual
capacities, any owner of a beneficial interest in the Issuer, nor any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns, shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on, 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 solely as the Owner Trustee in the assets of the Issuer.
The Holder of this Note by the acceptance hereof agrees that, except as
5
<PAGE>
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
6
<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 ____________________________________, as attorney, to transfer said
Note on the books kept for registration thereof, with full power of substitution
in the premises.
Dated:__________________ __________________________________1
Signature Guaranteed:
- ------------------------- ----------------------------------
_______________________
(1) 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.
7
<PAGE>
EXHIBIT D
FORM OF NOTE DEPOSITORY AGREEMENT
8
<PAGE>
EXHIBIT E
TRANSFER CERTIFICATE
First Security Bank, N.A.
79 South Main Street
Salt Lake City, Utah 84111
Attention: Executive Vice President and
General Counsel
Bankers Trust Company
Four Albany Street
10th Floor
New York, New York 10006
Attention: Corporate Trust and Agency Services -
Structured Finance
Ladies and Gentlemen:
In connection with the purchase of a Note subject to Section
2.15 of the Indenture dated as of November 4, 1998 (the "Unregistered Note") of
First Security Auto Owner Trust 1998-1, the undersigned buyer ("Buyer") hereby
acknowledges, represents and agrees that:
(a)The Buyer has received the [describe offering document]
relating to the offering of the Unregistered Note (including exhibits thereto).
2. The Buyer understands that the Unregistered Note has not
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), and may not be sold except as permitted in the following sentence. The
Buyer agrees, on its own behalf and on behalf of any accounts for which it is
acting as hereinafter stated, that such Unregistered Note may be resold, pledged
or transferred only (i) to an institutional investor that is an "Accredited
Investor" as defined in Rule 501(a)(1),(2),(3) or (7) (an "Institutional
Accredited Investor") under the Securities Act acting for its own account (and
not for the account of others) or as a fiduciary or agent for others (which
others also are Institutional Accredited Investors unless the holder is a bank
acting in its fiduciary capacity) that, if so requested by the Seller or the
Indenture Trustee, executes a certificate in the form hereof, (ii) so long as
such Unregistered Note is eligible for resale pursuant to Rule 144A under the
Securities Act ("Rule 144A"), to a person whom the Buyer reasonably believes
after due inquiry to be a "qualified institutional buyer" (as defined in Rule
144A) acting for its own account (and not for the account of others) or as a
fiduciary or agent for others (which others also are "qualified institutional
buyers") that, if so requested by the Seller or the Indenture Trustee, executes
a certificate in the form hereof or (iii) in a sale, pledge or other transfer
made in a transaction otherwise exempt from the registration requirements of the
Securities Act, in which case (A) the Indenture Trustee shall require that both
the prospective transferor and the prospective transferee certify to the
Indenture Trustee and the Seller in writing the facts surrounding such transfer,
which certification shall be in form and substance satisfactory to the Indenture
Trustee and the Seller, and (B) the Indenture Trustee shall require a written
opinion of counsel (which will not be at the expense of the Seller, the Servicer
or the Indenture Trustee) satisfactory to the Seller and the Indenture Trustee
to the effect that such transfer will not violate the Securities Act, in each
9
<PAGE>
case in accordance with any applicable securities laws of any state of the
United States. The Buyer will notify any purchaser of the Unregistered Note from
it of the above resale restrictions, if then applicable. The Buyer further
understands that in connection with any transfer of the Unregistered Note by it
that the Seller and the Indenture Trustee may request, and if so requested the
Buyer will furnish, such certificates and other information as they may
reasonably require to confirm that any such transfer complies with the foregoing
restrictions. In the event Class A Notes are Outstanding, the Buyer agrees by
accepting the Unregistered Note (or interest therein) to vote any such
Unregistered Note in the manner the majority of the Outstanding Class A Notes
have voted with regard to such issue.
3.
[CHECK ONE]
G (1) The Buyer is an institutional investor and an
"accredited investor" (as defined in Rule
501(a)(1),(2),(3) or (7) of Regulation D under the
Securities Act) acting for its own account (and not
for the account of others) or as a fiduciary or agent
for others (which others also are Institutional
Accredited Investors unless the Buyer is bank acting
in its fiduciary capacity). The Buyer has such
knowledge and experience in financial and business
matters as to be capable of evaluating the merits and
risks of its investment in the Unregistered Note, and
the Buyer and any accounts for which it is acting are
able to bear the economic risk of investment in the
Unregistered Note for an indefinite period of time.
The Buyer is acquiring the Unregistered Note for
investment and not with a view to, or for offer and
sale in connection with, a public distribution.
G (2) The Buyer is a "qualified institutional buyer" as
defined under Rule 144A under the Securities Act and
is acquiring the Unregistered Note for its own
account (and not for the account of others) or as a
fiduciary or agent for others (which others also are
"qualified institutional buyers"). The Buyer is are
familiar with Rule 144A under the Securities Act and
is aware that the seller of the Unregistered Note and
other parties intend to rely on the statements made
herein and the exemption from the registration
requirements of the Securities Act provided by Rule
144A.
10
<PAGE>
4. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Print Name of Buyer
By:
Name:
Title:
Date:
11
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
First Security Auto Owner Trust 1998-1
(Exact name of obligor as specified in its charter)
Delaware 87-6240825
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
C/O Wilmington Trust Company
Rodney Square North
110 North Market Street
1
<PAGE>
Wilmington, Delaware 19890
(Address of principal executive offices)
First Security Auto Owner Trust 1998-1
Asset Backed Notes
(Title of the indenture securities)
2
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of
Bankers Trust Company dated August 7, 1990,
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated
June 21, 1995 - Incorporated herein by
reference to Exhibit 1 filed with Form T-1
Statement, Registration No. 33-65171,
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated
March 20, 1996, incorporated by reference to
Exhibit 1 filed with Form T-1 Statement,
Registration No. 333-25843, Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated June 19, 1997,
incorporated by reference to Exhibit 1 filed
with Form T-1 Statement, Registration No.
333-45229 and Certificate of Amendment of
the Organization Certificate of Bankers
Trust Company dated March 26, 1998, copy
attached.
Exhibit 2 - Certificate of Authority to commence
business - Incorporated herein by reference
to Exhibit 2 filed with Form T-1 Statement,
Registration No.
33-21047.
3
<PAGE>
Exhibit 3 - Authorization of the Trustee to exercise
corporate trust powers Incorporated herein
by reference to Exhibit 2 filed with Form
T-1 Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust
Company, as amended on November 18, 1997.
Copy attached.
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company
required by Section 321(b) of the Act.
Incorporated herein by reference to Exhibit
4 filed with Form T-1 Statement,
Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers
Trust Company dated as of June, 1998. Copy
attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
4
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the ____ day
of October, 1998.
BANKERS TRUST COMPANY
By: Lillian K. Peros
---------------------------
Lillian K. Peros
Vice President
5
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section
8005 of the Banking Law," dated March 18, 1998, providing for an increase in
authorized capital stock from $2,351,666,670 consisting of 135,166,667 shares
with a par value of $10 each designated as Common Stock and 1000 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$2,501,666,670 consisting of 150,166,667 shares with a par value of $10 each
designated as Common Stock and 1,000 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York,
this 26th day of March in the Year of our Lord one
thousand nine hundred and ninety-eight.
Manuel Kursky
-------------------------------
Deputy Superintendent of Banks
6
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion, Three Hundred and Fifty One Million, Six Hundred
Sixty-Six Thousand, Six Hundred Seventy Dollars ($2,351,666,670),
divided into One Hundred Thirty Five Million, One Hundred Sixty-Six
Thousand, Six Hundred Sixty-Seven (135,166,667) shares with a par value
of $10 each designated as Common Stock and 1000 shares with a par value
of One Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion Five Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($2,501,666,670), divided into
One Hundred Fifty Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (150,166,667) shares with a par value of $10 each
designated as Common Stock and 1000 shares with a par value of One
7
<PAGE>
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
6. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
18th day of March, 1998.
James T. Byrne, Jr.
-------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
-------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
-------------------
Lea Lahtinen
Sworn to before me this 18th day of March, 1998.
Sandra L. West
---------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
8
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
9
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
1
<PAGE>
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time on the third Tuesday of the month. If the day appointed for holding such
regular meetings shall be a legal holiday, the regular meeting to be held on
such day shall be held on the next business day thereafter. Special meetings of
the Board of Directors may be called upon at least two day's notice whenever it
may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
2
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
3
<PAGE>
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
4
<PAGE>
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company which he deems advisable or which the Audit Committee
may request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit program and the adequacy
of the system of internal controls of the Company that should be brought to the
attention of the directors except those matters responsibility for which has
been vested in the General Credit Auditor. Should the General Auditor deem any
matter to be of special immediate importance, he shall report thereon forthwith
to the Audit Committee. The General Auditor shall report to the Chief Financial
Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
5
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
6
<PAGE>
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
7
<PAGE>
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
8
<PAGE>
I, Peter Becker, Assistant Secretary of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
Peter Becker
-------------------------
ASSISTANT SECRETARY
DATED: October __, 1998
9
<PAGE>
Legal Title of Bank:Bankers Trust Company Call Date:06/30/98 ST-BK:36-4840
Address: 130 Liberty Street Vendor ID: D CERT:00623
City, State ZIP: New York, NY 10006
FDIC Certificate No.:| 0 | 0 | 6 | 2 | 3
FFIEC 031
Page RC-1
11
Consolidated Report of Condition for Insured Commercial and
State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, reported the amount outstanding as of the
last business day of the quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
---------------
| C400 |
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
ASSETS | / / / / / / / / / / / |
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): | / / / / / / / / / / / /
a. Noninterest-bearing balances and currency and coin (1) ................ | 0081 1,868,000 |1.a.
b. Interest-bearing balances (2) ..............................................| 0071 2,041,000 |1.b.
2. Securities: | / / / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, column A) .................| 1754 0 |2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............... | 1773 7,419,000 |2.b.
3. Federal funds sold and securities purchased under agreements to resell........... | 1350 41,837,000 |3.
4. Loans and lease financing receivables: | / / / / / / / / // |
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 20,707,000 |4.a.
b. LESS: Allowance for loan and lease losses.................................RCFD 3123 629,000 |4.b.
c. LESS: Allocated transfer risk reserve ................................. ..RCFD 3128 0 |4.c.
d. Loans and leases, net of unearned income, | / / / / / / / / / / |
allowance, and reserve (item 4.a minus 4.b and 4.c) ....................... | 2125 20,078,000 |4.d.
5. Trading Assets (from schedule RC-D) ..............................................| 3545 49,665,000 |5.
6. Premises and fixed assets (including capitalized leases) ........................ | 2145 848,000 |6.
7. Other real estate owned (from Schedule RC-M) .................................... | 2150 180,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M) | 2130 92,000 |8.
9. Customers' liability to this bank on acceptances outstanding ......................| 2155 512,000 |9.
10. Intangible assets (from Schedule RC-M) ............................................| 2143 270,000 |10.
11. Other assets (from Schedule RC-F) .................................................| 2160 6,442,000 |11.
12. Total assets (sum of items 1 through 11) ..........................................| 2170 131,252,000 |12.
</TABLE>
- --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
10
<PAGE>
Legal Title of Bank:Bankers Trust Company Call Date:06/30/98 ST-BK:36-4840
Address: 130 Liberty Street Vendor ID: D CERT:00623
City, State ZIP: New York, NY 10006
FDIC Certificate No.:| 0 | 0 | 6 | 2 | 3
FFIEC 031
Page RC-1
11
<TABLE>
<CAPTION>
Schedule RC--Continued
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
- ------------------------------------------------------------------------------------------------------------------------------------
LIABILITIES
13. Deposits:
<S> <C> <C> <C>
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I) | RCON 2200 26,791,000 |13.a.
(1) Noninterest-bearing(1) ............................ RCON 6631 3,362,000 |13.a.(1)
(2) Interest-bearing .................................. RCON 6636 23,429,000 |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E part II) | RCFN 2200 22,089,000 |13.b.
(1) Noninterest-bearing ................................. RCFN 6631 1,810,000 |13.b.(1)
(2) Interest-bearing .................................... RCFN 6636 20,279,000 |13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase | RCFD 2800 19,274,000 |14.
15. a. Demand notes issued to the U.S. Treasury ............... | RCON 2840 0 |15.a.
b. Trading liabilities (from Schedule RC-D)................ | RCFD 3548 30,729,000 |15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases): | / / / / / / / / / / / / / / / |
a. With a remaining maturity of one year or less ........................ | RCFD 2332 7,891,000 |16.a.
b. With a remaining maturity of more than one year through three years.. | A547 3,576,000 |16.b.
c. With a remaining maturity of more than three years.................... | A548 2,872,000 |16.c
17. Not Applicable. | / / / / / / / / / / / / / / / |17.
18. Bank's liability on acceptances executed and outstanding .................... | RCFD 2920 512,000 |18.
19. Subordinated notes and debentures (2)........................................ | RCFD 3200 1,534,000 |19.
20. Other liabilities (from Schedule RC-G) ...................................... | RCFD 2930 9,202,000 |20.
21. Total liabilities (sum of items 13 through 20) .............................. | RCFD 2948 124,470,000 |21.
22. Not Applicable | / / / / / / / / / / / / / / / /|22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ............................... | RCFD 3838 1,000,000 |23.
24. Common stock ................................................................ | RCFD 3230 2,001,000 |24.
25. Surplus (exclude all surplus related to preferred stock) .................... | RCFD 3839 540,000 |25.
26. a. Undivided profits and capital reserves ............................... | RCFD 3632 3,693,000 |26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities | RCFD 8434 (71,000) |26.b.
27. Cumulative foreign currency translation adjustments ......................... | RCFD 3284 (381,000) |27.
28. Total equity capital (sum of items 23 through 27) ........................... | RCFD 3210 6,782,000 |28.
29. Total liabilities and equity capital (sum of items 21 and 28)................ | RCFD 3300 131,252,000 |29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the
bank by independent external ____________________ Number auditors as of any
date during 1997 ..............................................................| RCFD 6724 N/A | M.1
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by
with generally accepted auditing standards by a certified other external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by
conducted in accordance with generally accepted auditing external auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation
3 = Directors' examination of the bank conducted in work)
accordance with generally accepted auditing standards 8 = No external audit work
by a certified public accounting firm (may be required by
state chartering authority)
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and savings deposits.
(2) Includes limited-life preferred stock and related surplus.
</TABLE>
1 Denominations of $1,000 and integral multiples thereof.
2 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.
1 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.
11
