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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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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): February 25, 1999
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FIRST SECURITY AUTO OWNER TRUST 1999-1
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(Exact name of registrant as specified in its charter)
United States of America 333-70003 87-6242432
(State or other (Commission File Number) (I.R.S. employer
Jurisdiction of Identification No.)
Incorporation)
79 South Main Street
Salt Lake City, Utah 84111
(Address of principal executive offices)
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Registrant's telephone number, including area code: 801-246-5976
Page 1 of 4
Exhibit Index appears on Page 4
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ITEM 5. OTHER EVENTS
On February 25, 1999, the registrant issued $170,000,000.00
aggregate principal amount of Class A-1 4.96% Asset Backed Notes,
$300,800,000.00 aggregate principal amount of Class A-2 5.311% Asset Backed
Notes, $240,000,000.00 aggregate principal amount of Class A-3 5.58% Asset
Backed Notes, $252,000,000.00 aggregate principal amount of Class A-4 5.74%
Asset Backed Notes and $45,347,000.00 aggregate principal amount of Class B
6.00% Asset Backed Notes of First Security Auto Owner Trust 1991-1 pursuant
to an Indenture. The Indenture is attached hereto as Exhibit 99.
EXHIBIT 99 The following is filed as an Exhibit to this Report under
Exhibit 99.
Indenture dated February 25, 1999, between First Security
Auto Owner Trust 1999-1 and Bankers Trust Company, as
Indenture Trustee.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, as amended, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
FIRST SECURITY AUTO OWNER TRUST 1999-1
(Registrant)
By: First Security Bank, N.A., as
Dated: February 25, 1999 Administrator
By: ______________________________
Name:
Title:
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INDEX TO EXHIBITS
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Sequentially
Exhibit Number Exhibit Numbered Page
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99 Indenture dated as of February 25, 1999 5
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EXHIBIT 99
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FIRST SECURITY AUTO OWNER TRUST 1999-1
CLASS A-1 4.96% ASSET BACKED NOTES
CLASS A-2 5.311% ASSET BACKED NOTES
CLASS A-3 5.58% ASSET BACKED NOTES
CLASS A-4 5.74% ASSET BACKED NOTES
CLASS B 6.00% ASSET BACKED NOTES
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INDENTURE
DATED AS OF FEBRUARY 25, 1999
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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,
(c)(2) 11.1(a)
(c)(3) 11.1(a)
(d) 11.1(a)
(e) 2.9, 11.1(b)
(f) 11.1(a)
315(a) 11.1(a)
(b) 6.1(b)
(c) 6.5
(d) 6.1(a)
(e) 6.2, 6.1(c)
316(a)last 5.13
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
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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 . . . . . . . . . . . . . . . . . . .9
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 . . . . . . . . . . . . . . . . . 16
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 . . . . . . . . . . . . . . . 20
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SECTION 3.16 Capital Expenditures . . . . . . . . . . . . . . . . 20
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 . . . . . . 23
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 . . . . . . . . . . 25
SECTION 5.4 Remedies; Priorities . . . . . . . . . . . . . . . . 27
SECTION 5.5 Optional Preservation of the Trust Estate. . . . . . 28
SECTION 5.6 Limitation of Suits. . . . . . . . . . . . . . . . . 28
SECTION 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest . . . . . . . . . . . . . . . 29
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 . . . . . . . . . . . . . . . 30
SECTION 5.12 Waiver of Past Defaults. . . . . . . . . . . . . . . 30
SECTION 5.13 Undertaking for Costs. . . . . . . . . . . . . . . . 31
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. . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VI THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee. . . . . . . . . . . . . 32
SECTION 6.2 Rights of Indenture Trustee. . . . . . . . . . . . . 33
SECTION 6.3 Indenture Trustee May Own Notes. . . . . . . . . . . 34
SECTION 6.4 Indenture Trustee's Disclaimer . . . . . . . . . . . 34
SECTION 6.5 Notice of Defaults . . . . . . . . . . . . . . . . . 34
SECTION 6.6 Reports by Indenture Trustee to Holders. . . . . . . 35
SECTION 6.7 Compensation; Indemnity. . . . . . . . . . . . . . . 35
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. . . . . . . . . . . . . . . . . . .37
SECTION 6.11 Eligibility; Disqualification. . . . . . . . . . . . 38
SECTION 6.12 Preferential Collection of Claims Against Issuer . . 39
SECTION 6.13 Representations and Warranties of Indenture
Trustee. . . . . . . . . . . . . . . . . . . . . . . 39
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SECTION 6.14 Indenture Trustee May Enforce Claims Without
Possession of Notes. . . . . . . . . . . . . . . . . 40
SECTION 6.15 Suit for Enforcement . . . . . . . . . . . . . . . . 40
SECTION 6.16 Rights of Noteholders to Direct Indenture
Trustee. . . . . . . . . . . . . . . . . . . . . . . 40
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. . . . . . . . . . . . . . . . . . . . . 41
SECTION 7.3 Reports by Issuer. . . . . . . . . . . . . . . . . . 41
SECTION 7.4 Reports by Indenture Trustee . . . . . . . . . . . . 42
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money . . . . . . . . . . . . . . . .. 42
SECTION 8.2 Accounts; Payments . . . . . . . . . . . . . . . . . 42
SECTION 8.3 General Provisions Regarding Accounts. . . . . . . . 44
SECTION 8.4 Release of Trust Estate. . . . . . . . . . . . . . . 44
SECTION 8.5 Opinion of Counsel . . . . . . . . . . . . . . . . . 45
ARTICLE IX SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of
Noteholders. . . . . . . . . . . . . . . . . . . . . 45
SECTION 9.2 Supplemental Indentures With Consent of
Noteholders. . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . 48
SECTION 9.4 Effect of Supplemental Indenture . . . . . . . . . . 48
SECTION 9.5 Conformity with Trust Indenture Act. . . . . . . . . 48
SECTION 9.6 Reference in Notes to Supplemental Indentures. . . . 48
ARTICLE X REDEMPTION OF NOTES
SECTION 10.1 Redemption . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 10.2 Form of Redemption Notice. . . . . . . . . . . . . . . 49
SECTION 10.3 Notes Payable on Redemption Date . . . . . . . . . . . 50
ARTICLE XI MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc . . . . . . .50
SECTION 11.2 Form of Documents Delivered to Indenture Trustee . . . 52
SECTION 11.3 Acts of Noteholders. . . . . . . . . . . . . . . . . . 52
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer
and Rating Agencies . . . . . . . . . . . . . . . . .. 53
SECTION 11.5 Notices to Noteholders; Waiver . . . . . . . . . . . . 53
SECTION 11.6 Alternate Payment and Notice Provisions. . . . . . . . 54
SECTION 11.7 Conflict with Trust Indenture Act. . . . . . . . . . . 54
SECTION 11.8 Effect of Headings and Table of Contents . . . . . . . 54
SECTION 11.9 Successors and Assigns . . . . . . . . . . . . . . . . 54
<PAGE>
SECTION 11.10 Separability. . . . . . . . . . . . . . . . . . . . . 54
SECTION 11.11 Benefits of Indenture . . . . . . . . . . . . . . . . 54
SECTION 11.12 Legal Holidays. . . . . . . . . . . . . . . . . . . . 55
SECTION 11.13 Governing Law . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.14 Counterparts. . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.15 Recording of Indenture. . . . . . . . . . . . . . . . 55
SECTION 11.16 No Recourse . . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.17 No Petition . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.18 Inspection. . . . . . . . . . . . . . . . . . . . . . 56
SECTION 11.19 Voting Rights . . . . . . . . . . . . . . . . . . . . 56
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 February 25, 1999 between FIRST SECURITY
AUTO OWNER TRUST 1999-1, 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
<PAGE>
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 1.1 DEFINITIONS. Certain capitalized terms used in
this Indenture shall have the respective meanings assigned them in Section
1.1 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 1.2 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.
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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 2.1 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.
(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 2.2 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
<PAGE>
$1,008,147,400.28, comprised of (i) Class A-1 Notes in the aggregate
principal amount of $170,000,000.00, (ii) Class A-2 Notes in the aggregate
principal amount of $300,800,000.00, (iii) Class A-3 Notes in the aggregate
principal amount of $240,000,000.00, (iv) Class A-4 Notes in the aggregate
principal amount of $252,000,000.00 and (v) Class B Notes in the aggregate
principal amount of $45,347,400.28. The aggregate principal amount of all
Notes outstanding at any time may not exceed $1,008,147,400.28 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 2.3 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.
SECTION 2.4 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
<PAGE>
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
<PAGE>
or 9.6 not involving any transfer.
(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 2.5 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
<PAGE>
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 2.6 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 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 2.7 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, the
Class A-4 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, 20/30ths 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 installment
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 any Class B Notes are held by the
Seller or any of its Affiliates, payment on such Class B Notes shall be made
by wire transfer in immediately available funds to the account designated by
the Seller.
(b) Until the earlier of (i) 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 and (ii) any Notes remaining unpaid
after the applicable Final Scheduled Distribution Date, 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
installments on the Distribution Dates (if any) preceding the Final Scheduled
Distribution Date for such class, in
<PAGE>
the amounts and in accordance with the priorities set forth in Section
8.2(c)(ii) or (iii), as applicable. All principal payments on each class of
Notes shall be made pro rata to the Noteholders of such class entitled
thereto. Any installment 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 any of the Class B Notes are held by the
Seller or any of its Affiliates, payment on such 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 installment 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
immediately due and payable, principal on the Notes shall be payable as
provided in Section 8.2(c)(iv).
(e) With respect to any Distribution Date on which the final
installment 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 installment 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 installment 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 installment 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 2.8 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
<PAGE>
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 2.9 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 Sections 314(c) and 314(d)(1).
SECTION 2.10 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
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
<PAGE>
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 2.11 NOTICES TO CLEARING AGENCY. Whenever a notice or
other communication to the Noteholders is required under this Indenture,
unless and until Definitive Notes shall have been issued to Note Owners
pursuant to Section 2.12, 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 2.12 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 2.13 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 2.14 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
otherwise required by appropriate taxing authorities, agree to treat the
<PAGE>
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 2.15 SPECIAL TERMS APPLICABLE TO SUBSEQUENT TRANSFERS
OF CERTAIN NOTES.
(a) At the time of issuance, a Class B Note shall be issued
to and retained by the Seller in the aggregate principal amount of $400.28
and shall not be registered under the Securities Act, or the securities laws
of any other jurisdiction. Consequently, such Class B Note (the
"Unregistered Note") 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 the 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 the Unregistered Note under the Securities
Act, qualify the Unregistered Note under the securities laws of any state or
provide registration rights to any purchaser or holder thereof.
(b) The Unregistered Note shall be issued in the form of a
Definitive Note and Sections 2.10, 2.11 and 2.12 of this Indenture shall not
apply thereto.
(c) The Unregistered Note shall bear legends to the effect
set forth in subsection (a).
ARTICLE III
COVENANTS
<PAGE>
SECTION 3.1 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 3.2 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
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 3.3 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;
<PAGE>
(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.
(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
<PAGE>
the Indenture Trustee or of any Paying Agent, at the last address of record
for each such Holder).
SECTION 3.4 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 3.5 PROTECTION OF TRUST ESTATE; ACKNOWLEDGMENT 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;
(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 3.6 OPINIONS AS TO TRUST ESTATE.
<PAGE>
(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, 2000, 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 3.7 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 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
<PAGE>
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 3.8 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
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supervisory authority for the winding-up or liquidation of its affairs
or any other event specified in Section 5.1(f); or
(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 3.9 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, 2000, 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 3.10 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
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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
(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;
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(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
(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 3.11 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.
<PAGE>
(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 3.12 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 3.13 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 3.14 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 3.15 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.
SECTION 3.16 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 3.17 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:
<PAGE>
(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 3.18 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 3.19 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 3.20 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.
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SECTION 3.21 REPRESENTATIONS AND WARRANTIES BY THE ISSUER TO
THE INDENTURE TRUSTEE. The Issuer hereby represents and warrants to the
Indenture Trustee as follows:
(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 4.1 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:
(1) 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
(2) all Notes not theretofore delivered to the
Indenture Trustee for cancellation:
<PAGE>
(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
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 4.2 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.
<PAGE>
SECTION 4.3 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 5.1 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 the Class A Noteholders' Interest
Distributable Amount or the Class B Noteholders' Interest Distributable
Amount, as applicable, to the Noteholders on the related Distribution
Date, 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
installment 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 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
<PAGE>
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 5.2 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 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
<PAGE>
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 5.3 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:
<PAGE>
(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 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
<PAGE>
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 5.4 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):
(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
<PAGE>
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 5.5 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 Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to
the sufficiency of the Trust Estate for such purpose.
SECTION 5.6 LIMITATION OF SUITS. No Holder of any Note shall
have any right to institute any Proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(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
<PAGE>
(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 5.7 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE
PRINCIPAL AND INTEREST. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest 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 5.8 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 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 5.9 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
<PAGE>
other appropriate right or remedy.
SECTION 5.10 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 5.11 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.
SECTION 5.12 WAIVER OF PAST DEFAULTS.
<PAGE>
(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 5.13 UNDERTAKING FOR COSTS. All parties to this
Indenture agree, and each Holder of any Note by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any 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 5.14 WAIVER OF STAY OR 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.
<PAGE>
SECTION 5.15 ACTION ON NOTES. The Indenture Trustee's right
to seek and recover judgment on the Notes or under this Indenture shall not
be affected by the seeking, obtaining or application of any other relief
under or with respect to this Indenture. Neither the lien of this Indenture
nor any rights or remedies of the Indenture Trustee or the Noteholders shall
be impaired by the recovery of any judgment by the Indenture Trustee against
the Issuer or by the levy of any execution under such judgment upon any
portion of the Trust 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 5.16 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 6.1 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
<PAGE>
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
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 6.2 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
<PAGE>
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 6.3 INDENTURE TRUSTEE MAY OWN NOTES. The Indenture
Trustee in its individual or any other capacity may become the owner or
pledgee 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 6.4 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
<PAGE>
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 6.5 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 6.6 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 6.7 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, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 REPLACEMENT OF INDENTURE TRUSTEE.
(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
<PAGE>
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.
<PAGE>
SECTION 6.9 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 6.10 APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE
INDENTURE TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the 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
<PAGE>
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;
(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 6.11 ELIGIBILITY; DISQUALIFICATION.
(a) The Indenture Trustee shall at all times satisfy the
requirements of TIA Section 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
<PAGE>
with respect to long-term unsecured debt obligations. The Indenture Trustee
shall comply with TIA Section 310(b); PROVIDED, HOWEVER, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
(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.
(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 6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER.
The
<PAGE>
Indenture Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated.
SECTION 6.13 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 6.14 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.
SECTION 6.15 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 6.16 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
<PAGE>
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 7.1 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 7.2 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 Section
312(b) with other Noteholders with respect to their rights under this
Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA Section 312(c).
SECTION 7.3 REPORTS BY ISSUER.
(a) If required, the Issuer shall:
<PAGE>
(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 Section 313(c)) such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to
clauses (i) and (ii) of this Section 7.3(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 7.4 REPORTS BY INDENTURE TRUSTEE.
(a) If required by TIA Section 313(a), within 60 days after
each February 1, beginning with February 1, 2000, the Indenture Trustee shall
mail to each Noteholder as required by TIA Section 313(c) a brief report
dated as of such date that complies with TIA Section 313(a). The Indenture
Trustee also shall comply with TIA Section 313(b). A copy of 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.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 COLLECTION OF MONEY. Except as otherwise
expressly provided
<PAGE>
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 8.2 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 (iv) 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;
<PAGE>
(ii) unless otherwise provided in clause (iii) or (iv)
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-1 Notes, until paid in full, and
(B) thereafter, (1) the Class A Principal
Percentage of the Principal Payment Amount to principal of
the Class A Notes, all of which shall be paid to principal
of the Class A-2 Notes until paid in full, then to
principal of the Class A-3 Notes until paid in full and
then to principal of the Class A-4 Notes until paid in
full, and (2) the Class B Principal Percentage of the
Principal Payment Amount to principal of the Class B Notes.
(iii) unless otherwise provided in clause (iv) below, from
and after the occurrence of a Gross Loss Trigger Event, 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, then to principal of the Class A-3 Notes until paid
in full and then to the Class A-4 Notes until paid in full,
and
(B) thereafter, 100% of the Principal Payment
Amount to principal of the Class B Notes.
(iv) 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 8.3 GENERAL PROVISIONS REGARDING ACCOUNTS.
(a) Subject to Section 6.1(c), the Indenture Trustee shall not
in any way be
<PAGE>
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 8.4 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 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.
<PAGE>
SECTION 8.5 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 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
NOTEHOLDERS.
(a) Without the consent of the Holders of any Notes but with
prior notice to the Rating Agencies, 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 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
<PAGE>
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 9.2 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 installment 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
<PAGE>
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 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 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing,
or permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the
<PAGE>
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 9.4 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and be deemed to be modified and amended in
accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities
and immunities under this Indenture of 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.
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT. Every
amendment of this Indenture and every supplemental indenture executed
pursuant to this Article IX shall conform to the requirements of the TIA as
then in effect so long as this Indenture shall then be qualified under the
TIA.
SECTION 9.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX may, and if required by 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 10.1 REDEMPTION.
(a) The Class A-4 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, the Class A-2 Notes and the Class A-3 Notes
have been paid in full. The purchase price for the Class A-4 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
<PAGE>
redemption. If the Class A-4 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-4 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 10.2 FORM OF REDEMPTION NOTICE.
(a) Notice of redemption of the Class A-4 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-4 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
(iii) the place where Class A-4 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-4 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-4 Note and Class B Note to be redeemed shall not
impair or affect the validity of the redemption of any other Class A-4 Note
or Class B Note to be redeemed.
SECTION 10.3 NOTES PAYABLE ON REDEMPTION DATE. The Class A-4
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.
<PAGE>
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 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 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.
<PAGE>
(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 11.2 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE.
(a) In any case where several matters are required to be
certified by, or
<PAGE>
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an Authorized Officer of
the Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, 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 11.3 ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Noteholders 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
<PAGE>
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.
SECTION 11.4 NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER AND
RATING AGENCIES. Any request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders or other documents provided or
permitted by this Indenture to be made upon, given or furnished to or filed
with 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 9.5 to the Sale and Servicing Agreement.
SECTION 11.5 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
9.5 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
<PAGE>
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 11.6 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 11.7 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 Sections 310 through 317 that
impose duties on any Person (including the provisions automatically deemed
included herein unless expressly excluded by this Indenture) are a part of
and govern this Indenture, whether or not physically contained herein.
SECTION 11.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.9 SUCCESSORS AND ASSIGNS.
(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 11.10 SEPARABILITY. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 11.11 BENEFITS OF INDENTURE. Nothing in this Indenture
or in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, 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
<PAGE>
right, remedy or claim under this Indenture.
SECTION 11.12 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 11.13 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 11.14 COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and
the same instrument.
SECTION 11.15 RECORDING OF INDENTURE. If this Indenture is
subject to recording in any appropriate public recording offices, such
recording is to be effected by the Issuer and at its expense accompanied by
an Opinion of Counsel (which may be counsel to the Indenture Trustee or any
other counsel reasonably acceptable to the Indenture Trustee) to the effect
that such recording is necessary either for the protection of the Noteholders
or any other Person secured hereunder or for the enforcement of any right or
remedy granted to the Indenture Trustee under this Indenture.
SECTION 11.16 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 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
<PAGE>
installment or call owing to such entity. For all purposes of this
Indenture, in the performance of any duties or obligations of the
Issuer hereunder, the Owner Trustee shall be subject to, and entitled
to the benefits of, the terms and provisions of Articles VI, VII
and VIII of the Trust Agreement.
SECTION 11.17 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 11.18 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 11.19 VOTING RIGHTS. Notwithstanding anything to
the contrary contained herein, 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 the holders of such specified percentage of all outstanding
Class A Notes (or if no Class A Notes are outstanding, all outstanding Class
B Notes) voting together as a single class have voted to give such consent,
approval, direction, request or notice or take such action.
<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 1999-1
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 1999-1, 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 25th day of
February, 1999.
___________________________________
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 25th day of
February, 1999.
___________________________________
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:
<TABLE>
<C> <S>
1. The Indenture Trustee
2. The Owner Trustee
3. First Security Bank, N.A.
</TABLE>
<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 1999-1
CLASS A-__ _____% ASSET BACKED NOTES
FIRST SECURITY AUTO OWNER TRUST 1999-1, 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
- --------------
(1) Denominations of $1,000 and integral multiples thereof.
<PAGE>
[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
February 25, 1999. [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, 20/30ths 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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
<PAGE>
Date: FIRST SECURITY AUTO OWNER
TRUST 1999-1,
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:
<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 February 25, 1999 (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 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 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 the
Indenture, all as provided in the Indenture.
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 installment 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
<PAGE>
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
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.
<PAGE>
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 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.
<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.
<PAGE>
EXHIBIT C
REGISTERED $____________
No. R-__
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ________
[Unless this Note is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Issuer or its agent for registration
of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.] [THE SECURITIES REPRESENTED BY THIS NOTE
WERE ORIGINALLY ISSUED ON FEBRUARY 25, 1999, HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION
FROM REGISTRATION THEREUNDER.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
FIRST SECURITY AUTO OWNER TRUST 1999-1
CLASS B ____% ASSET BACKED NOTES
FIRST SECURITY AUTO OWNER TRUST 1999-1, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"ISSUER"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of _______________ DOLLARS ($_________)
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
<PAGE>
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 March 15, 2005 (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 February 25, 1999. 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, 20/30ths of a month). Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The Holder of this Class B Note acknowledges and agrees that
its rights to receive payments in respect of this Class B Note are
subordinated to the rights of the Class A Noteholders as and to the extent
described in the Indenture.
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.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
<PAGE>
Date: February 25, 1999 FIRST SECURITY AUTO OWNER
TRUST 1999-1,
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: February 25, 1999 Bankers Trust Company, not in
its individual capacity but
solely as Indenture Trustee
By: _________________________
Name:
Title:
<PAGE>
REVERSE OF NOTE
This Note, designated as a Class B ___% 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 February 25, 1999 (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 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 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 the Indenture, all
as provided in the Indenture.
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 installment 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
<PAGE>
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
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 Indenture further provides that the Holder
of this Note shall not be entitled to vote until such time as all of the
Class A Notes have been paid in full.
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.
<PAGE>
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 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.
<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.
<PAGE>
EXHIBIT D
FORM OF NOTE DEPOSITORY AGREEMENT
<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 February 25, 1999 (the "Unregistered Note")
of First Security Auto Owner Trust 1999-1, 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
<PAGE>
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 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.
3.
[CHECK ONE]
/ / (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.
/ / (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.
<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:
