EXHIBIT 4.1
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-1
CLASS A-1 5.364% ASSET BACKED NOTES
CLASS A-2 5.580% ASSET BACKED NOTES
CLASS A-3 5.680% ASSET BACKED NOTES
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INDENTURE
DATED AS OF MARCH 11, 1999
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THE FIRST NATIONAL BANK OF CHICAGO,
A NATIONAL BANKING ASSOCIATION,
INDENTURE TRUSTEE
CROSS-REFERENCE TABLE
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TIA INDENTURE
SECTION SECTION
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310(a)(1) 6.11
(a)(2) 6.11
(a)(3) 6.10
(a)(4) 6.14
(b) 6.11
(c) N.A.
311(a) 6.12
(b) 6.12
(c) N.A.
312(a) 7.1, 7.2
(b) 7.2
(c) 7.2
313(a) 7.4(a), 7.4(b)
(b)(1) 7.4(a)
(b)(2) 7.4(a)
(c) 7.4(a)
(d) 7.4(a)
314(a) 7.3(a), 3.9
(b) 3.6
(c)(1) 2.2, 2.9, 4.1, 11.1(a)
(c)(2) 11.1(a)
(c)(3) 11.1(a)
(d) 2.9, 11.1(b)
(e) 11.1(a)
(f) 11.1(a)
315(a) 6.1(b)
(b) 6.5
(c) 6.1(a)
(d) 6.2, 6.1(c)
(e) 5.13
316(a)last
sentence 1.1
(a)(1)(A) 5.11
(a)(1)(B) 5.12
(a)(2) Omitted
316(b), (c) 5.7
317(a)(1) 5.3(b)
(a)(2) 5.3(d)
(b) 3.3
318(a) 11.7
N.A. means Not Applicable.
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Note:This cross reference table shall not, for any purpose, be deemed to be part
of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 Definitions 2
1.2 Incorporation by Reference of Trust Indenture Act 2
ARTICLE II
THE NOTES
2.1 Form 3
2.2 Execution, Authentication and Delivery 3
2.3 Temporary Notes 4
2.4 Registration; Registration of Transfer and Exchange of Notes 4
2.5 Mutilated, Destroyed, Lost or Stolen Notes 6
2.6 Persons Deemed Noteholders 7
2.7 Payment of Principal and Interest 7
2.8 Cancellation of Notes 8
2.9 Release of Collateral 8
2.10 9
2.11 Notices to Clearing Agency 9
2.12 Definitive Notes 9
2.13 Seller as Noteholder 10
2.14 Tax Treatment 10
2.15 Special Terms Applicable to the Class A-1 Notes 10
ARTICLE III
COVENANTS
3.1 Payment of Principal and Interest 11
3.2 Maintenance of Agency Office 11
3.3 Money for Payments To Be Held in Trust 11
3.4 Existence 13
3.5 Protection of Trust Estate; Acknowledgment of Pledge 13
3.6 Opinions as to Trust Estate 14
3.7 Performance of Obligations; Servicing of Receivables 15
3.8 Negative Covenants 16
3.9 Annual Statement as to Compliance 17
3.10 Consolidation, Merger, etc., of Issuer; Disposition
of Trust Assets 17
3.11 Successor or Transferee 19
3.12 No Other Business 19
3.13 No Borrowing 19
3.14 Guarantees, Loans, Advances and Other Liabilities 19
3.15 Servicer's Obligations 20
3.16 Capital Expenditures 20
3.17 Removal of Administrator 20
3.18 Restricted Payments 20
3.19 Notice of Events of Default 20
3.20 Further Instruments and Acts 21
3.21 Indenture Trustee's Assignment of Administrative
Receivables and Warranty Receivables 21
3.22 Representations and Warranties by the Issuer to
the Indenture Trustee 21
ARTICLE IV
SATISFACTION AND DISCHARGE
4.1 Satisfaction and Discharge of Indenture 21
4.2 Application of Trust Money 23
4.3 Repayment of Monies Held by Paying Agent 23
4.4 Duration of Position of Indenture Trustee 23
ARTICLE V
DEFAULT AND REMEDIES
5.1 Events of Default 23
5.2 Acceleration of Maturity; Rescission and Annulment 24
5.3 Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee 25
5.4 Remedies; Priorities 27
5.5 Optional Preservation of the Receivables 28
5.6 Limitation of Suits 29
5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest 29
5.8 Restoration of Rights and Remedies 30
5.9 Rights and Remedies Cumulative 30
5.10 Delay or Omission Not a Waiver 30
5.11 Control by Noteholders 30
5.12 Waiver of Past Defaults 31
5.13 Undertaking for Costs 31
5.14 Waiver of Stay or Extension Laws 32
5.15 Action on Notes 32
5.16 Performance and Enforcement of Certain Obligations 32
ARTICLE VI
THE INDENTURE TRUSTEE
6.1 Duties of Indenture Trustee 33
6.2 Rights of Indenture Trustee 34
6.3 Indenture Trustee May Own Notes 35
6.4 Indenture Trustee's Disclaimer 35
6.5 Notice of Defaults 35
6.6 Reports by Indenture Trustee to Holders 36
6.7 Compensation; Indemnity 36
6.8 Replacement of Indenture Trustee 36
6.9 Merger or Consolidation of Indenture Trustee 37
6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee 38
6.11 Eligibility; Disqualification 39
6.12 Preferential Collection of Claims Against Issuer 39
6.13 Representations and Warranties of Indenture Trustee 39
6.14 Indenture Trustee May Enforce Claims Without Possession
of Notes 40
6.15 Suit for Enforcement 40
6.16 Rights of Noteholders to Direct Indenture Trustee 40
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
7.1 Issuer To Furnish Indenture Trustee Names and
Addresses of Noteholders 41
7.2 Preservation of Information, Communications to Noteholders 41
7.3 Reports by Issuer 42
7.4 Reports by Trustee 42
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
8.1 Collection of Money 43
8.2 Designated Accounts; Payments 43
8.3 General Provisions Regarding Accounts 44
8.4 Release of Trust Estate 45
8.5 Opinion of Counsel 45
ARTICLE IX
SUPPLEMENTAL INDENTURES
9.1 Supplemental Indentures Without Consent of Noteholders 46
9.2 Supplemental Indentures With Consent of Noteholders 47
9.3 Execution of Supplemental Indentures 49
9.4 Effect of Supplemental Indenture 49
9.5 Conformity with Trust Indenture Act 49
9.6 Reference in Notes to Supplemental Indentures 49
ARTICLE X
REDEMPTION OF NOTES
10.1 Redemption 49
10.2 Form of Redemption Notice 50
10.3 Notes Payable on Redemption Date 50
ARTICLE XI
MISCELLANEOUS
11.1 Compliance Certificates and Opinions, etc. 51
11.2 Form of Documents Delivered to Indenture Trustee 53
11.3 Acts of Noteholders 53
11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies 54
11.5 Notices to Noteholders; Waiver 55
11.6 Alternate Payment and Notice Provisions 55
11.7 Conflict with Trust Indenture Act 55
11.8 Effect of Headings and Table of Contents 56
11.9 Successors and Assigns 56
11.10 Separability 56
11.11 Benefits of Indenture 56
11.12 Legal Holidays 56
11.13 GOVERNING LAW 57
11.14 Counterparts 57
11.15 Recording of Indenture 57
11.16 No Recourse 57
11.17 No Petition 58
11.18 Inspection 58
11.19 Indemnification by and Reimbursement of the Servicer 58
Exhibit A Location of Schedule of Receivables
Exhibit B Form of Note Depository Agreement
Exhibit C Form of Asset Backed Note
Exhibit D Rule 144A Certificate
INDENTURE, dated as of March 11, 1999, between CAPITAL AUTO RECEIVABLES
ASSET TRUST 1999-1, a Delaware business trust (the "ISSUER"), and THE FIRST
NATIONAL BANK OF CHICAGO, a national banking association, 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 Certificates:
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, (a) all of the Issuer's right, title
and interest in, to and under the Receivables listed on the SCHEDULE OF
RECEIVABLES which is on file at the locations listed on EXHIBIT A hereto and (i)
in the case of Scheduled Interest Receivables, all monies due thereon on and
after the Cutoff Date and (ii) in the case of Simple Interest Receivables, all
monies received thereon on and after the Cutoff Date, in each case exclusive of
any amounts allocable to the premium for physical damage insurance force-placed
by the Servicer and covering any related Financed Vehicle; (b) the interest of
the Issuer in the security interests in the Financed Vehicles granted by
Obligors pursuant to the Receivables and, where permitted by law, any accessions
thereto; (c) the interest of the Issuer in any proceeds with respect to the
Receivables from claims on any physical damage, credit life, credit disability
or other insurance policies covering Financed Vehicles or Obligors (except for
those Receivables originated in Wisconsin); (d) the interest of the Issuer in
any proceeds with respect to the Receivables from recourse against dealers
thereon; (e) all right, title and interest in all funds on deposit from time to
time in the Collection Account, the Note Distribution Account and the
Certificate Distribution Account; (f) all right, title and interest of the
Issuer in, to and under the Trust Sale and Servicing Agreement (including all
rights of Capital Auto Receivables, Inc. ("CARI") under the Pooling and
Servicing Agreement assigned to the Issuer pursuant to the Trust Sale and
Servicing Agreement); and (g) all present and future claims, demands, causes and
choses in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in respect of any
or all of the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, investment property, general intangibles,
condemnation awards, rights to payment of any and every kind and other forms of
obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "COLLATERAL").
The foregoing Grant is made in trust to secure (a) the payment of principal
of and interest on, and any other amounts owing in respect of, the Notes,
equally and ratably without prejudice, priority or distinction, and (b) the
payment of the Certificate Balance and interest on, and any other amounts owing
in respect of, the Certificates, equally and ratably without prejudice, priority
or distinction, and to secure compliance with the provisions of this Indenture,
all as provided in this Indenture. This Indenture constitutes a security
agreement under the UCC.
The foregoing Grant includes all rights, powers and options (but none of
the obligations, if any) of the Issuer under any agreement or instrument
included in the Collateral, including the immediate and continuing right to
claim for, collect, receive and give receipt for principal and interest payments
in respect of the Receivables included in the Collateral and all other monies
payable under the Collateral, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights and
options, to bring Proceedings in the name of the Issuer or otherwise and
generally to do and receive anything that the Issuer is or may be entitled to do
or receive under or with respect to the Collateral.
The Indenture Trustee, as trustee on behalf of the Noteholders, and (only
to the extent expressly provided herein) the Certificateholders, 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
1.1 SECTION DEFINITIONS . Certain capitalized terms used in this Indenture shall
have the respective meanings assigned them in PART I of APPENDIX A to the Trust
Sale and Servicing Agreement (the "TRUST SALE AND SERVICING AGREEMENT") dated as
of March 11, 1999, among the Issuer, CARI and General Motors Acceptance
Corporation ("GMAC"). All references in this Indenture to Articles, Sections,
subsections and exhibits are to the same 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. The
rules of construction set forth in PART II of such APPENDIX A shall be
applicable to this Agreement.
1.2
1.3 SECTION 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:
1.4
1.5 "COMMISSION" means the Securities and Exchange Commission.
1.6
1.7 "INDENTURE SECURITIES" means the Notes.
1.8
1.9 "indenture security holder" means a Noteholder.
1.10
1.11 "indenture to be qualified" means this Indenture.
1.12
1.13 "INDENTURE TRUSTEE" means the Indenture Trustee.
1.14
1.15 "OBLIGOR" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
1.16
1.17 All other TIA terms used in this Indenture that are defined by the TIA,
defined by reference to another statute or defined by a Commission rule have the
respective meanings assigned to them by such definitions.
1.18
ARTICLE II
THE NOTES
1.1 SECTION FORM .
1.2
(a) Each of the Class A-1 Notes, the Class A-2 Notes and the Class A-3
Notes, together, in each case, with the Indenture Trustee's
certificate of authentication, shall be substantially in the form set
forth in EXHIBIT C, 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.
(a) 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.
(b)
(c) The terms of each class of Notes as provided for in EXHIBIT C hereto
are part of the terms of this Indenture.
(d)
1.2 SECTION EXECUTION, AUTHENTICATION AND DELIVERY.
1.3
(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
and in integral multiples thereof (except, if applicable, for one Note
representing a residual portion of each class which may be issued in a
different denomination).
(a) 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.
(b)
(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)
(e) The Indenture Trustee, in exchange for the Grant of the Receivables
and the other components of the Trust, simultaneously with the Grant
to the Indenture Trustee of the Receivables, and the constructive
delivery to the Indenture Trustee of the Receivables Files and the
other components and assets of the Trust, shall cause to be
authenticated and delivered to or upon the order of the Issuer, the
Notes for original issue in aggregate principal amount of
$2,490,200,000, comprised of (i) Class A-1 Notes in the aggregate
principal amount of $1,352,200,000, (ii) Class A-2 Notes in the
aggregate principal amount of $735,000,000 and (iii) Class A-3 Notes
in the aggregate principal amount of $403,000,000. The aggregate
principal amount of all Notes outstanding at any time may not exceed
$2,490,200,000 except as provided in SECTION 2.5.
(f)
(g) 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
EXHIBIT C, executed by the Indenture Trustee by the manual signature
of one of its Authorized Officers, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note
has been duly authenticated and delivered hereunder.
(h)
1.2 SECTION TEMPORARY NOTES.
1.3
(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.
(a) 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.
(b)
1.2 SECTION REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF NOTES.
1.3
(a) The Issuer shall cause to be kept the Note Register, comprising
separate registers for each class of Notes, in which, subject to such
reasonable regulations as the Issuer may prescribe, the Issuer shall
provide for the registration of the Notes and the registration of
transfers and exchanges of the Notes. The Indenture Trustee shall
initially be the Note Registrar for the purpose of registering the
Notes and transfers of the Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a
successor Note Registrar or, if it elects not to make such an
appointment, assume the duties of the Note Registrar.
(a) 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 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.
(b)
(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)
(e) 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 such 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, such Notes
which the Noteholder making the exchange is entitled to receive.
(f)
(g) All Notes issued upon any registration of transfer or exchange of
other 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.
(h)
(i) 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.
(j)
(k) No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer or Indenture Trustee may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than exchanges
pursuant to SECTIONS 2.3 OR 9.6 not involving any transfer.
(l)
(m) 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 within 15 days of submission
to the Corporate Trust Office or the Agency Office.
(n)
1.2 SECTION MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
1.3
(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 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,
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.
(a) If, after the delivery of a replacement Note or payment in respect of
a destroyed, lost or stolen Note pursuant to subsection (a), a 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 a 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.
(b)
(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)
(e) Any duplicate Note issued pursuant to this SECTION 2.5 in replacement
for any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or
not the mutilated, destroyed, lost or stolen Note shall be found at
any time or be enforced by any Person, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any
and all other Notes duly issued hereunder.
(f) 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.
(g)
1.2 SECTION 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.
1.3
1.4 SECTION PAYMENT OF PRINCIPAL AND INTEREST.
1.5
(a) Interest on each class of Notes shall accrue in the manner set forth
in EXHIBIT C at the applicable Interest Rate for such class and will
be due and payable on each Distribution Date in accordance with the
priorities set forth in SECTION 8.2(C). Any instalment of interest
payable on any Note shall be punctually paid or duly provided for by a
deposit by or at the direction of the Issuer into the Note
Distribution Account on 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 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.
(a) Prior to the occurrence of an Event of Default and a declaration in
accordance with SECTION 5.2(A) that the Notes have become immediately
due and payable, the principal of each class of Notes shall be payable
in full on the Final Scheduled Distribution Date for such class and,
to the extent of funds available therefor, in instalments on the
Distribution Dates (if any) preceding the Final Scheduled Distribution
Date for such class, in the amounts and in accordance with the
priorities set forth in SECTION 8.2(C)(II) OR (III), as applicable.
All principal payments on each class of Notes on any Distribution Date
shall be made pro rata to the Noteholders of such class entitled
thereto. Any instalment of principal payable on any Note shall be
punctually paid or duly provided for by a deposit by or at the
direction of the Issuer into the Note Distribution Account on 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, except for: (i) the
final instalment of principal on any Note; and (ii) the Redemption
Price for the Notes redeemed pursuant to SECTION 10.1, which, in each
case, shall be payable as provided herein. The funds represented by
any such checks in respect of interest or principal returned
undelivered shall be held in accordance with SECTION 3.3.
(b)
(c) 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, until such time as all Events of Default
have been cured or waived as provided in SECTION 5.2(B), all principal
payments shall be allocated pro rata among the Holders of all of the
Notes on the basis of the respective aggregate unpaid principal
balances of Notes held by such Holders.
(d)
(e) With respect to any Distribution Date on which the final instalment of
principal and interest on a class of Notes is to be paid, the
Indenture Trustee shall notify each Noteholder of such class of record
as of the Record Date for such Distribution Date of the fact that the
final instalment of principal of and interest on such Note is to be
paid on such Distribution Date. With respect to any such class of
Notes, such notice shall be sent (i) on such Record Date by facsimile,
if Book-Entry Notes are outstanding; or (ii) not later than three
Business Days after such Record Date in accordance with SECTION
11.5(A) if Definitive Notes are outstanding, and shall specify that
such final instalment shall be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may
be presented and surrendered for payment of such instalment and the
manner in which such payment shall be made. Notices in connection with
redemptions of Notes shall be mailed to Noteholders as provided in
SECTION 10.2. Within sixty days of the surrender pursuant to this
SECTION 2.7(D) or cancellation pursuant to SECTION 2.8 of all of the
Notes of a particular class, the Indenture Trustee if requested shall
provide each of the Rating Agencies with written notice stating that
all Notes of such class have been surrendered or canceled.
(f)
1.2 SECTION CANCELLATION OF NOTES. All Notes surrendered for payment ,
redemption, exchange or registration of transfer shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this SECTION 2.8, except as expressly
permitted by this Indenture. All canceled Notes may be held or disposed of by
the Indenture Trustee in accordance with its standard retention or disposal
policy as in effect at the time unless the Issuer shall direct by an Issuer
Order that they be destroyed or 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
request that surrendered Notes have been duly canceled and retained or
destroyed, as the case may be.
1.3
1.4 SECTION RELEASE OF COLLATERAL. The Indenture Trustee shall release
property from the lien of this Indenture other than as permitted by SECTIONS
3.21, 8.2, 8.4 AND 11.1, only upon receipt of an Issuer Request accompanied by
an Officer's Certificate, an Opinion of Counsel (to the extent required by the
TIA) and Independent Certificates in accordance with TIA ss.ss.314(c) and
314(d)(1).
1.5
1.6 SECTION BOOK-ENTRY NOTES. Subject to SECTION 2.15, 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, as the initial Clearing Agency, or its custodian, 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, 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 the Definitive Notes have been issued to Note
Owners pursuant to SECTION 2.12:
1.7
(a) the provisions of this SECTION 2.10 shall be in full force and effect;
(a) 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 such Notes and the giving
of instructions or directions hereunder) as the sole Holder of such
Notes and shall have no obligation to the Note Owners;
(a) 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;
(a) the rights of the Note Owners shall be exercised only throug 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. 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 such
Notes to such Clearing Agency Participants, pursuant to the Note
Depository Agreement; and
(a) whenever this Indenture requires or permits actions to be taken based
upon instructions or directions of Holders of Notes evidencing a
specified percentage of the Outstanding Amount of the Notes, the
Clearing Agency shall be deemed to represent such percentage only to
the extent that it has (i) received instructions to such effect from
Note Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial
interest in the Notes; and (ii) has delivered such instructions to the
Indenture Trustee.
1.1 SECTION 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.
1.2
1.3 SECTION DEFINITIVE NOTES .
1.4
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 (other than the Class A-1 Notes) and
the Issuer 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 a Servicer Default, Note Owners representing
beneficial interests aggregating at least a majority of the Outstanding Amount
of such Notes advise the Clearing Agency in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interests
of the Note Owners, then the Clearing Agency shall notify all Note Owners and
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 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.
1.1 SECTION SELLER AS NOTEHOLDER . The Seller in its individual or any other
capacity may become the owner or pledgee of Notes of any class and may otherwise
deal with the Issuer or its affiliates with the same rights it would have if it
were not the Seller.
1.2
1.3 SECTION TAX TREATMENT. The Seller and the Indenture Trustee, by entering
into this Indenture, and the Noteholders, 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 Notes as
indebtedness secured by the Collateral for the purpose of federal income taxes,
state and local income and franchise taxes, Michigan single business tax, and
any other taxes imposed upon, measured by or based upon gross or net income.
1.4
1.5 SECTION SPECIAL TERMS APPLICABLE TO THE CLASS A-1 NOTES .
1.6
(a) The Class A-1 Notes have not and will not be registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), or the
securities laws of any other jurisdiction. Consequently, the Class A-1
Notes are not transferable other than pursuant to an exemption from
the registration requirements of the Securities Act and satisfaction
of certain other provisions specified herein. An interest in the Class
A-1 Notes are being sold in a private placement on the date hereof. No
sale, pledge or other transfer of any Class A-1 Note (or interest
therein) after the date hereof may be made by any person unless either
(i) such sale, pledge or other transfer is made to a "qualified
institutional buyer" that executes a certificate, in the form attached
hereto as EXHIBIT D or otherwise in form and substance satisfactory to
the Indenture Trustee and the Seller, to the effect that (A) it is a
"qualified institutional buyer" as defined under Rule 144A under the
Securities Act, acting for its own account or the accounts of other
"qualified institutional buyers" as defined under Rule 144A under the
Securities Act, and (B) it is aware that the transferor of such Note
intends to rely on the exemption from the registration requirements of
the Securities Act provided by Rule 144A under the Securities Act, 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 (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. Neither the Seller nor the Indenture Trustee will
register the Class A-1 Notes under the Securities Act, qualify the
Class A-1 Notes under the securities laws of any state or provide
registration rights to any purchaser or holder thereof.
(b)
(c) [Reserved].
(d)
(e) The Class A-1 Notes shall be issued in the form of Definitive Notes
and shall be in fully registered form. SECTIONS 2.10, 2.11 AND 2.12 of
this Indenture shall not apply to the Class A-1 Notes.
(f)
(g) Each Class A-1 Note shall bear a legend to the effect set forth in
subsection (a) above.
(h)
ARTICLE III
COVENANTS
1.1 SECTION 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 Issuer shall cause amounts on deposit in
the Note Distribution Account to be distributed 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.
1.1 SECTION 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.
1.2
1.3 SECTION MONEY FOR PAYMENTS TO BE HELD IN TRUST .
1.4
(a) As provided in SECTION 8.2(A) AND (B), 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)
(c) On or before each Distribution Date or the Redemption Date (if
applicable), the Issuer shall deposit or cause to be deposited in the
Note Distribution Account (including pursuant to SECTION 4.06 of the
Trust Sale and Servicing Agreement) 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.
(d)
(e) 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:
(f)
(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;
(i) 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;
(i) 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;
(i) 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;
and
(i) 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.
(a) 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.
(b)
(c) 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 one year after such amount has become due and payable
shall be discharged from such trust and be paid to the Issuer on
Issuer Request; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment
thereof (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 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 of the Issuer, any
other reasonable means of notification of such payment (including, but
not limited to, mailing notice of such payment to Holders whose Notes
have been called but have not been surrendered for redemption or whose
right to or interest in monies due and payable but not claimed is
determinable from the records of the Indenture Trustee or of any
Paying Agent, at the last address of record for each such Holder).
(d)
1.2 SECTION 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.
1.3
1.4 SECTION PROTECTION OF TRUST ESTATE; ACKNOWLEDGMENT OF PLEDGE .
1.5
(a) The Issuer shall from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other
instruments, and shall take such other action necessary or advisable
to:
(b)
(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, (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 and (D) any other change or occurrence that would make
any financing statement or amendment seriously misleading within
the meaning of Section 9-402(7) of the UCC.
(i) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(i) enforce the rights of the Indenture Trustee and the Noteholders
in any of the Collateral; or
(i) 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 any financing statement, continuation statement or
other instrument required by the Indenture Trustee pursuant to this SECTION 3.5.
(a) The Indenture Trustee acknowledges the pledge by the Seller to the
Indenture Trustee pursuant to SECTION 4.07(c) of the Trust Sale and
Servicing Agreement of (i) all of the Seller's right, title and
interest in and to the Reserve Account Property in order to provide
for the payment to the Noteholders, the Certificateholders and the
Servicer in accordance with SECTIONS 4.06(c) and (d) of the Trust Sale
and Servicing Agreement, to assure availability of the amounts
maintained in the Reserve Account for the benefit of the Noteholders,
the Certificateholders and the Servicer, and as security for the
performance by the Seller of its obligations under the Trust Sale and
Servicing Agreement.
(b)
1.2 SECTION OPINIONS AS TO TRUST ESTATE .
1.3
(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.
(a) On or before August 15 in each calendar year, beginning August 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 August
15 in the following calendar year.
(b)
1.2 SECTION PERFORMANCE OF OBLIGATIONS; SERVICING OF RECEIVABLES .
1.3
(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 Trust Sale and
Servicing Agreement, the Pooling and Servicing Agreement, the
Administration Agreement or such other instrument or agreement.
(a) 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 Officer's 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.
(b)
(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 by the
terms of this Indenture, the Trust Sale and Servicing Agreement and
the Pooling and Servicing Agreement in accordance with and within the
time periods provided for herein and therein.
(d)
(e) If the Issuer shall have knowledge of the occurrence of a Servicer
Default under the Trust Sale and Servicing Agreement, the Issuer shall
promptly notify 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 a
Servicer Default shall arise from the failure of the Servicer to
perform any of its duties or obligations under the Trust Sale and
Servicing Agreement or the Pooling 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 Trust Sale
and Servicing Agreement and the Pooling and Servicing Agreement to
remedy such failure.
(f)
(g) 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 Outstanding Amount of the 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
Trust Sale and Servicing Agreement or the Pooling and Servicing
Agreement, the Administrator under the Administration Agreement or
GMAC under the Pooling and Servicing Agreement. 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.
(h)
1.2 SECTION 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 Warranty
Receivables, Administrative Receivables and Liquidating Receivables),
(ii) make cash payments out of the Designated Accounts, Payment Ahead
Servicing Account and the Certificate Distribution Account and (iii)
take other actions, in each case as contemplated by the Basic
Documents;
(a) 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;
(a) voluntarily commence any insolvency, readjustment of debt, marshalling
of assets and liabilities or other proceeding, or apply for an order
by a court or agency or supervisory authority for the winding-up or
liquidation of its affairs or any other event specified in SECTION
5.1(f); or
(a) 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).
1.1 SECTION ANNUAL STATEMENT AS TO COMPLIANCE . The Issuer shall deliver to the
Indenture Trustee, on or before August 15 of each year, beginning August 15,
2000, an Officer's Certificate signed by an Authorized Officer, dated as of June
30 of such year, stating that:
1.2
(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
(a) to the best of such Authorized Officer's knowledge, based on such
review, the Issuer has fulfilled 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.
1.1 SECTION CONSOLIDATION, MERGER, ETC., OF ISSUER; DISPOSITION OF TRUST ASSETS.
1.2 (a) The Issuer shall not consolidate or merge with or into any other Person
, unless:
(i) the Person (if other than the Issuer) formed by or surviving such
consolidation or merger shall be a Person organized and existing
under the laws of the United States of America, or any State and
shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and timely payment
of the principal of and interest on all Notes and the performance
or observance of every agreement and covenant of this Indenture
on the part of the Issuer to be performed or observed, all as
provided herein;
(i) immediately after giving effect to such merger or consolidation,
no Default or Event of Default shall have occurred and be
continuing;
(i) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person;
(i) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(i) the Issuer shall have delivered to the Indenture Trustee an
Officer's 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;
(A) that such consolidation or merger and such supplemental
indenture shall have no material adverse tax consequence to
the Issuer or any Noteholder or Certificateholder; and
(A) 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.
(a) 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:
(b)
(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;
(1) 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;
(1) 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
(1) 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;
(i) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(i) the Rating Agency Condition shall have been satisfied with
respect to such transaction and such Person;
(i) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(i) the Issuer shall have delivered to the Indenture Trustee an
Officer's 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;
(A) such sale, conveyance, exchange, transfer or disposition and
such supplemental indenture have no material adverse tax
consequence to the Trust or to any Noteholders or
Certificateholders; and
(A) 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.
1.1 SECTION SUCCESSOR OR TRANSFEREE .
1.2
(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.
(a) 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 Notes
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.
(b)
1.2 SECTION 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 Notes and the Certificates, making payments on the Notes and the
Certificates and such other activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto, as set forth
in SECTION 2.3 of the Trust Agreement.
1.3
1.4
SECTION 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.
1.5
1.6 SECTION 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.
1.7
1.8 SECTION SERVICER'S OBLIGATIONS . The Issuer shall use its best efforts to
cause the Servicer to comply with its obligations under SECTION 3.10 of the
Pooling and Servicing Agreement and SECTIONS 4.01 AND 4.02 of the Trust Sale and
Servicing Agreement.
1.9
1.10 SECTION 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 Trust
Sale and Servicing Agreement.
1.11
1.12 SECTION REMOVAL OF ADMINISTRATOR . So long as any Notes are Outstanding,
the Issuer shall not remove the Administrator without cause unless the Rating
Agency Condition shall have been satisfied in connection with such removal.
1.13
1.14 SECTION 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:
1.15
(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;
(a) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or similar security; or
(a) 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 Trust 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.
1.1 SECTION 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 Servicer Default, each default on the part of the Seller
of its obligations under the Trust Sale and Servicing Agreement and each default
on the part of GMAC of its obligations under the Pooling and Servicing
Agreement.
1.2
1.3 SECTION 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.
1.4
1.5 SECTION INDENTURE TRUSTEE'S ASSIGNMENT OF ADMINISTRATIVE RECEIVABLES AND
WARRANTY RECEIVABLES. Upon receipt of the Administrative Purchase Payment or the
Warranty Payment with respect to an Administrative Receivable or a Warranty
Receivable, as the case may be, the Indenture Trustee shall assign, without
recourse, representation or warranty, to the Servicer or the Warranty Purchaser,
as the case may be, all 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, proceeds from any Insurance Policies, proceeds
from recourse against the Dealer on such Receivable and the interests of the
Indenture Trustee in certain rebates of premiums and other amounts relating to
the Insurance Policies and any documents relating thereto, such assignment being
an assignment outright and not for security; and the Servicer or the Warranty
Purchaser, as applicable, shall thereupon own such Receivable, and all such
security and documents, free of any further obligation to the Indenture Trustee,
the Noteholders or the Certificateholders 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 the 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 Noteholders or the Certificateholders.
1.6
1.7 SECTION REPRESENTATIONS AND WARRANTIES BY THE ISSUER TO THE INDENTURE
TRUSTEE . The Issuer hereby represents and warrants to the Indenture Trustee as
follows:
1.8
(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 Receivables, the unpaid
indebtedness evidenced thereby and the collateral security therefor,
free of any Lien; and
(b)
(c) ALL FILINGS MADE. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give the Indenture Trustee a
first perfected security interest in the Receivables shall have been
made.
(d)
(e)
ARTICLE IV
SATISFACTION AND DISCHARGE
1.1 SECTION 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 3.3, 3.4, 3.5, 3.8,
3.10, 3.12, 3.13, 3.19 AND 3.21; (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
(1) all Notes not theretofore delivered to the Indenture Trustee for
cancellation:
(A) have become due and payable,
(A) will be due and payable on their respective Final Scheduled
Distribution Dates within one year, or
(A) 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 Date for such Notes or the Redemption Date for such
Notes (if such Notes have been called for redemption pursuant to SECTION 10.1),
as the case may be;
(a) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(a) 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.
1.1 SECTION 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 Trust Sale and Servicing Agreement or required by law.
1.2
1.3 SECTION REPAYMENT OF MONIES HELD BY PAYING AGENT . In connection with the
satisfaction and discharge of this Indenture with respect to the Notes, all
monies then held by any Paying Agent other than the Indenture Trustee under the
provisions of this Indenture with respect to such 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.
1.4
1.5 SECTION DURATION OF POSITION OF INDENTURE TRUSTEE . Notwithstanding the
earlier payment in full of all principal and interest due to the Noteholders
under the terms of the Notes and the cancellation of the Notes pursuant to
SECTION 3.1, the Indenture Trustee shall continue to act in the capacity as
Indenture Trustee hereunder and, for the benefit of the Certificateholders,
shall comply with its obligations under SECTIONS 5.01(A), 7.02 AND 7.03 of the
Trust Sale and Servicing Agreement, as appropriate, until such time as all
payments in respect of Certificate Balance and interest due to the
Certificateholders have been paid in full.
1.6
1.7
ARTICLE V
DEFAULT AND REMEDIES
1.1 SECTION 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 full Noteholders' Interest Distributable Amount on
any class of Notes on any Distribution Date, and such default shall
continue for a period of five (5) days; or
(a) except as set forth in SECTION 5.1(C), failure to pay any instalment
of the principal of any Note as and when the same becomes due and
payable, and such default continues unremedied for a period of thirty
(30) days after there shall have been given, by registered or
certified mail, to the Servicer by the Indenture Trustee or to the
Servicer and the Indenture Trustee by the Holders of not less than 25%
of the Outstanding Amount of the Notes, a written notice specifying
such default and demanding that it be remedied and stating that such
notice is a "NOTICE OF DEFAULT" hereunder; or
(a) failure to pay in full the outstanding principal balance of any class
of Notes by the Final Scheduled Distribution Date for such class; or
(a) 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 elsewhere in this specifically dealt with 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 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 25% of the Outstanding Amount of the Notes,
a written notice specifying such default, demanding that it be
remedied and stating that such notice is a "NOTICE OF DEFAULT"
hereunder; or
(a) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any
substantial part of the Trust Estate in an involuntary case under any
applicable federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Trust Estate, or ordering
the winding-up or liquidation of the Issuer's affairs, and such decree
or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(a) 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 Business Days
after learning of the occurrence thereof, written notice in the form of an
Officer's Certificate of any event which with the giving of notice and the lapse
of time would become an Event of Default under SECTION 5.1(D), its status and
what action the Issuer is taking or proposes to take with respect thereto.
1.1 SECTION ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT .
1.2
(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 of the
Outstanding Amount of the Notes may declare all the 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 such Notes, together with accrued and
unpaid interest thereon through the date of acceleration, shall become
immediately due and payable.
(a) 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 a majority of the Outstanding Amount of the Notes, by
written notice to the Issuer and the Indenture Trustee, may waive all
Defaults set forth in the notice delivered pursuant to SECTION 5.2(A),
and rescind and annul such declaration and its consequences; PROVIDED,
that no such rescission and annulment shall extend to or affect any
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 respectively to their 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.
1.1 SECTION COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY INDENTURE
TRUSTEE .
1.2
(a) The Issuer covenants that if an Event of Default under SECTIONS
5.1(a), (b) OR (c) occurs and such Event of Default 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 ratable
benefit of the Noteholders in accordance with their respective
outstanding principal amounts, the whole amount then due and payable
on such Notes for principal and interest, with interest upon the
overdue principal, at the rate borne by the 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.
(a) 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.
(b)
(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)
(e) 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:
(f)
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the 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;
(i) 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;
(i) 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
(i) 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.
(a) 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.
(b)
(c) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof
in any trial or other Proceedings relative thereto, and any such
Proceedings instituted by the Indenture Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and
compensation of the Indenture Trustee, each predecessor Trustee and
their respective agents and attorneys, shall be for the ratable
benefit of the Noteholders.
(d)
(e) 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.
(f)
1.2 SECTION REMEDIES; PRIORITIES .
1.3
(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;
(i) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust
Estate;
(i) 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 the Noteholders; and
(i) 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 (i) (A) the Holders of all of the aggregate
Outstanding Amount of the Notes consent thereto or (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 the Notes at the date of such sale or
liquidation or (C) (x) 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, (y) the
Indenture Trustee determines that the Trust Estate will not
continue to provide sufficient funds for the payment of principal
of and interest on the Notes as and when they would have become
due if the Notes had not been declared due and payable, and (z)
the Indenture Trustee obtains the consent of Holders of a
majority of the aggregate Outstanding Amount of the Notes and
(ii) 10 days' prior written notice of sale or liquidation has
been given to the Rating Agencies. 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.
(a) If the Indenture Trustee collects any money or property pursuant
to this ARTICLE V, it shall pay out the money or property in the
following order:
(b) FIRST: to the Indenture Trustee for amounts due under SECTION 6.7
and then to the Owner Trustee for amounts due to the Owner
Trustee (not including amounts due for payments to the
Certificateholders) under the Trust Agreement or the Trust Sale
and Servicing Agreement; and
SECOND: to the Collection Account, for distribution pursuant to
SECTIONS 8.01(b) AND (e) of the Trust Sale and Servicing
Agreement.
The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this SECTION 5.4. At least 15 days before
such record date, the Indenture Trustee shall mail to each Noteholder and the
Indenture Trustee a notice that states the record date, the payment date and the
amount to be paid.
1.1 SECTION OPTIONAL PRESERVATION OF THE RECEIVABLES . If the Notes have been
declared to be due and payable under SECTION 5.2 following an Event of Default
and such declaration and its consequences have not been rescinded and annulled
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.
1.2
1.3 SECTION 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:
1.4
(i) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(i) the Holders of not less than 25% of the Outstanding Amount of the
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;
(i) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in complying with such request;
(i) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
such Proceedings; and
(i) 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 of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes or to obtain or to seek to obtain priority or preference over
any other Holders 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 holders
of Notes. 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 of the Outstanding Amount of the Notes, the Indenture
Trustee in its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.
1.1 SECTION 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.
1.2
1.3 SECTION 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.
1.4
1.5 SECTION RIGHTS AND REMEDIES CUMULATIVE . No right or remedy herein conferred
upon or reserved to the Indenture Trustee or to the Noteholders is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
1.6
1.7 SECTION 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 or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this ARTICLE V or by law
to 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.
1.8
1.9 SECTION CONTROL BY NOTEHOLDERS . The Holders of a majority of the
Outstanding Amount of the 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:
1.10
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(i) subject to the express terms of SECTION 5.4, any direction to the
Indenture Trustee to sell or liquidate the Trust Estate shall be
by the Holders of Notes representing not less than 100% of the
Outstanding Amount of the Notes;
(i) 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 direction to the Indenture
Trustee by Holders of Notes representing less than 100% of the
Outstanding Amount of the Notes to sell or liquidate the Trust
Estate shall be of no force and effect; and
(i) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such
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 or
might materially adversely affect the rights of any Noteholders not consenting
to such action.
1.1 SECTION WAIVER OF PAST DEFAULTS.
1.2
(a) Prior to the declaration of the acceleration of the maturity of the
Notes as provided in SECTION 5.2, the Holders of not less than a
majority of the Outstanding Amount of the Notes may waive any past
Default or Event of Default and its consequences except a Default (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 consent of the Holder of each Note. 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 any subsequent or
other Default or impair any right consequent thereto.
(a) Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto.
(b)
1.2 SECTION 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,
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)
(c) any Proceeding instituted by any Noteholder, or group of Noteholders,
in each case holding in the aggregate more than 10% of the Outstanding
Amount of the Notes; or
(d)
(e) 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).
(f)
1.3 SECTION 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 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.
1.4
1.5 SECTION 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).
1.6
1.7 SECTION PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS .
1.8
(a) Promptly following a request from the Indenture Trustee to do so and
at the Administrator's expense, the Issuer agrees to take all such
lawful action as the Indenture Trustee may request to compel or secure
the performance and observance by the Seller and the Servicer of their
respective obligations to the Issuer under or in connection with the
Trust Sale and Servicing Agreement and the Pooling and Servicing
Agreement or by GMAC of its obligations under or in connection with
the Pooling and Servicing Agreement in accordance with the terms
thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection
with the Trust Sale and Servicing Agreement and the Pooling and
Servicing Agreement to the extent and in the manner directed by the
Indenture Trustee, including the transmission of notices of default on
the part of the Seller or the Servicer thereunder and the institution
of legal or administrative actions or proceedings to compel or secure
performance by the Seller or the Servicer of their respective
obligations under the Trust Sale and Servicing Agreement and the
Pooling and Servicing Agreement.
(b) 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 66-2/3% of the Outstanding Amount of the Notes shall,
exercise all rights, remedies, powers, privileges and claims of the
Issuer against the Seller or the Servicer under or in connection with
the Trust Sale and Servicing Agreement and the Pooling and Servicing
Agreement, including the right or power to take any action to compel
or secure performance or observance by the Seller or the Servicer of
each of their obligations to the Issuer thereunder and to give any
consent, request, notice, direction, approval, extension or waiver
under the Trust Sale and Servicing Agreement, and any right of the
Issuer to take such action shall be suspended.
(c)
(d) [RESERVED.]
(e)
(f) 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 66-2/3% of the Outstanding Amount of the Notes shall,
exercise all rights, remedies, powers, privileges and claims of the
Seller against GMAC under or in connection with the Pooling and
Servicing Agreement, including the right or power to take any action
to compel or secure performance or observance by GMAC of each of its
obligations to the Seller thereunder and to give any consent, request,
notice, direction, approval, extension or waiver under the Pooling and
Servicing Agreement, and any right of the Seller to take such action
shall be suspended.
(g)
(h)
ARTICLE VI
THE INDENTURE TRUSTEE
1.1 SECTION DUTIES OF INDENTURE TRUSTEE .
1.2
(a) If an Event of Default has occurred and is continuing, 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.
(a) Except during the continuance of an Event of Default:
(b)
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and
the Trust Sale and Servicing Agreement and no implied covenants
or obligations shall be read into this Indenture, the Trust Sale
and Servicing Agreement or any other Basic Document against the
Indenture Trustee; and
(i) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Indenture Trustee and conforming to
the requirements of this Indenture; PROVIDED, HOWEVER, that the
Indenture Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(a) 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:
(b)
(i) this SECTION 6.1(C) does not limit the effect of SECTION 6.1(B);
(i) 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
(i) 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.
(a) 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.
(b)
(c) 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 Trust Sale and Servicing Agreement or the Trust
Agreement.
(d)
(e) 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 adequate indemnity against
such risk or liability is not reasonably assured to it.
(f)
(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.
(h)
1.2 SECTION RIGHTS OF INDENTURE TRUSTEE .
1.3
(a) The Indenture Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Indenture Trustee need not investigate any fact or matter stated in
the document.
(a) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The
Indenture Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on the Officer's Certificate or
Opinion of Counsel.
(b)
(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)
(e) 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.
(f)
(g) 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.
(h)
1.2 SECTION 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.
1.3
1.4 SECTION 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.
1.5
1.6 SECTION NOTICE OF DEFAULTS . If a Default occurs and is continuing and if it
is known to a Responsible Officer of the Indenture Trustee, the Indenture
Trustee shall mail to each Noteholder notice of the Default within 90 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.
1.7
1.8 SECTION REPORTS BY INDENTURE TRUSTEE TO HOLDERS . The Indenture Trustee
shall deliver to each Noteholder the information and documents set forth in
ARTICLE VII, and, in addition, all such information with respect to the Notes as
may be required to enable such Holder to prepare its federal and state income
tax returns.
1.9
1.10 SECTION COMPENSATION; INDEMNITY .
1.11
(a) The Issuer shall cause the Servicer pursuant to SECTION 3.09 of the
Pooling and Servicing Agreement to pay to the Indenture Trustee from
time to time reasonable compensation for its services. 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
pursuant to SECTION 3.09 of the Pooling and Servicing Agreement 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 to indemnify the
Indenture Trustee in accordance with SECTION 6.01 of the Trust Sale
and Servicing Agreement.
(a) The Issuer's obligations to the Indenture Trustee pursuant to this
SECTION 6.7 shall survive the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default
specified in SECTION 5.1(D) OR (E) with respect to the Issuer, the
expenses are intended to constitute expenses of administration under
Title 11 of the United States Code or any other applicable federal or
state bankruptcy, insolvency or similar law.
(b)
1.2 SECTION REPLACEMENT OF INDENTURE TRUSTEE .
1.3
(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 Outstanding Amount of the Notes may remove the Indenture
Trustee by so notifying the Indenture Trustee and may appoint a
successor Indenture Trustee. Such resignation or removal shall become
effective in accordance with SECTION 6.8(C). The Issuer shall remove
the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with SECTION 6.11;
(i) the Indenture Trustee is adjudged a bankrupt or insolvent;
(i) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(i) the Indenture Trustee otherwise becomes incapable of acting.
(a) 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 a successor Indenture Trustee.
(b)
(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. The successor Indenture Trustee shall
mail a notice of its succession to Noteholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture
Trustee to the successor Indenture Trustee.
(d)
(e) If a successor Indenture Trustee does not take office within 60 days
after the Indenture Trustee gives notice of its intent to resign or is
removed, the retiring Trustee, the Issuer or the Holders of a majority
of the Outstanding Amount of the Notes may petition any court of
competent jurisdiction for the appointment and designation of a
successor Indenture Trustee.
(f)
(g) 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.
(h)
(i) 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 Trust Sale and
Servicing Agreement shall continue for the benefit of the retiring
Indenture Trustee.
(j)
1.2 SECTION MERGER OR CONSOLIDATION OF INDENTURE TRUSTEE .
1.3
(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.
(a) 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.
(b)
1.2 SECTION 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.
(a) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act
separately without the Indenture Trustee joining in such act),
except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed the
Indenture Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Estate
or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Indenture Trustee;
(i) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(i) the Indenture Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(a) 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.
(b)
(c) 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.
(d)
1.2 SECTION ELIGIBILITY; DISQUALIFICATION . The Indenture Trustee shall at all
times satisfy the requirements of TIA ss. 310(a). The Indenture Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition and (unless waived by Moody's
Investors Service, Inc.) it shall have a long term unsecured debt rating of Baa3
or better by Moody's Investors Service, Inc. The Indenture Trustee shall comply
with TIA ss. 310(b); PROVIDED, HOWEVER, that there shall be excluded from the
operation of TIA ss. 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 ss. 310(b)(1) are met.
1.3
1.4 SECTION PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER . The Indenture
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated.
1.5
1.6 SECTION REPRESENTATIONS AND WARRANTIES OF INDENTURE TRUSTEE . The Indenture
Trustee represents and warrants as of the Closing Date that:
1.7
(a) the Indenture Trustee (i) is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States of America and (ii) satisfies the eligibility criteria
set forth in SECTION 6.11;
(b)
(c) 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;
(d)
(e) the execution, delivery and performance by the Indenture Trustee of
this Indenture (i) shall not violate any provision of any law or
regulation governing the banking and trust powers of the Indenture
Trustee or any order, writ, judgment or decree of any court,
arbitrator, or governmental authority applicable to the Indenture
Trustee or any of its assets, (ii) shall not violate any provision of
the corporate charter or by-laws of the Indenture Trustee, or (iii)
shall not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Trust Estate
pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which
violation, default or lien could reasonably be expected to have a
materially adverse effect on the Indenture Trustee's performance or
ability to perform its duties under this Indenture or on the
transactions contemplated in this Indenture;
(f)
(g) the execution, delivery and performance by the Indenture Trustee of
this Indenture shall not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with,
or the taking of any other action in respect of, any governmental
authority or agency regulating the banking and corporate trust
activities of the Indenture Trustee; and
(h)
(i) 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.
(j)
1.8 SECTION 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.
1.9
1.10 SECTION 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 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.
1.11
1.12 SECTION RIGHTS OF NOTEHOLDERS TO DIRECT INDENTURE TRUSTEE . Holders of
Notes evidencing not less than a majority of the Outstanding Amount of the Notes
shall have the right to direct the time, method and place of conducting any
Proceeding for any remedy available to the 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.
1.13
1.14
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
1.1 SECTION 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 related 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.
1.1 SECTION PRESERVATION OF INFORMATION, COMMUNICATIONS TO NOTEHOLDERS .
1.2
(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.
(a) Noteholders may communicate pursuant to TIA ss. 312(b) with other
Noteholders with respect to their rights under this Indenture or under
the Notes.
(b)
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA ss. 312(c).
(d)
1.2 SECTION REPORTS BY ISSUER .
1.3
(a) The Issuer shall:
(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;
(i) 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
(i) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Noteholders described in TIA ss. 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.
(a) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of such year.
(b)
1.2 SECTION REPORTS BY TRUSTEE .
1.3
(a) If required by TIA ss. 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 ss. 313(c) a brief report dated as
of such date that complies with TIA ss. 313(a). The Indenture Trustee
also shall comply with TIA ss. 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 if and when the Notes are listed on
any stock exchange.
(a) On each Distribution Date the Indenture Trustee shall include with
each payment to each Noteholder a copy of the statement for the
related Monthly Period or Periods applicable to such Distribution Date
as required pursuant to SECTION 4.09 of the Trust Sale and Servicing
Agreement.
(b)
(c)
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
1.1 SECTION COLLECTION OF MONEY . Except as otherwise expressly provided herein,
the Indenture Trustee may demand payment or delivery of, and shall receive and
collect, directly and without intervention or assistance of any fiscal agent or
other intermediary, all money and other property payable to or receivable by the
Indenture Trustee pursuant to this Indenture and the Trust Sale and Servicing
Agreement. The Indenture Trustee shall apply all such money received by it as
provided in this Indenture. Except as otherwise expressly provided in this
Indenture, if any default occurs in the making of any payment or performance
under any agreement or instrument that is part of the Trust Estate, 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 a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in ARTICLE V.
1.1 SECTION DESIGNATED ACCOUNTS; PAYMENTS .
1.2
(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 (and with respect to the Reserve
Account, for the benefit of the Servicer) the Designated Accounts as
provided in ARTICLES IV and V of the Trust Sale and Servicing
Agreement.
(a) On or before each Distribution Date, (i) amounts shall be deposited in
the Collection Account as provided in SECTION 4.06 of the Trust Sale
and Servicing Agreement and (ii) the Aggregate Noteholders' Interest
Distributable Amount and the Aggregate Noteholders' Principal
Distributable Amount shall be transferred from the Collection Account
to the Note Distribution Account as and to the extent provided in
SECTION 4.06 of the Trust Sale and Servicing Agreement.
(b)
(c) On each Distribution Date, the Indenture Trustee shall apply and, as
required, distribute to the Noteholders all amounts on deposit in the
Note Distribution Account (subject to the Servicer's rights under
SECTION 5.03 of the Trust Sale and Servicing Agreement to Investment
Earnings) in the following order of priority and in the amounts
determined as described below:
(d)
(i) The Aggregate Noteholders' Interest Distributable Amount shall be
applied to each class of Notes in an amount equal to the sum of
(A) the Noteholders' Interest Distributable Amount for such class
of Notes for such Distribution Date plus (B) if there was any
Noteholders' Interest Carryover Shortfall as of the close of the
immediately preceding Distribution Date, a pro rata portion
thereof determined on the basis of the amount of interest that
was to be applied to such class on such preceding Distribution
Date; PROVIDED, HOWEVER, that if there are not sufficient funds
in the Note Distribution Account to so apply the entire Aggregate
Noteholders' Interest Distributable Amount, the amount available
in the Note Distribution Account for such purpose shall be
applied to each class of Notes pro rata on the basis of the
respective amount otherwise to be applied to such class pursuant
to this clause (i). The amount so applied to each class of Notes
shall be paid to the Holders thereof on such Distribution Date.
(i) Unless otherwise provided in clause (iii) below, an amount equal
to the Aggregate Noteholders' Principal Distributable Amount
shall be applied to each class of Notes in the following amounts
and in the following order of priority and any amount so applied
shall be paid on such Distribution Date to the Holders of such
class of Notes:
(A) First, to the Class A-1 Notes, until the Outstanding Amount
attributable to such class is reduced to zero;
(A) Second, to the Class A-2 Notes, until the Outstanding Amount
attributable to such class is reduced to zero; and
(A) Third, to the Class A-3 Notes, until the Outstanding Amount
attributable to such class is reduced to zero.
(i) If the Notes have been declared immediately due and payable following
an Event of Default as provided in SECTION 5.2, until such time as all
Events of Default have been cured or waived as provided in SECTION
5.2(b), any amounts remaining in the Note Distribution Account after
the applications described in SECTION 8.2(c)(i) and any amounts then
on deposit or deposited into the Note Distribution Account thereafter
shall be applied to the repayment of principal on each of the Notes
pro rata on the basis of the respective unpaid principal amount of
each such Note and paid to the Holders thereof on such Distribution
Date.
(ii)
1.2 SECTION GENERAL PROVISIONS REGARDING ACCOUNTS .
1.3
(a) So long as no Default or Event of Default shall have occurred and be
continuing, all or a portion of the funds in the Designated Accounts
shall be invested in Eligible Investments and reinvested by the
Indenture Trustee upon Issuer Order, subject to the provisions of
SECTION 5.01(b) of the Trust Sale and Servicing Agreement. The Issuer
shall not direct the Indenture Trustee to make any investment of any
funds or to sell any investment held in any of the Designated Accounts
unless the security interest granted and perfected in such account
shall continue to be perfected in such investment or the proceeds of
such sale, in either case without any further action by any Person,
and, in connection with any direction to the Indenture Trustee to make
any such investment or sale, if requested by the Indenture Trustee,
the Issuer shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect.
(a) Subject to SECTION 6.1(c), the Indenture Trustee shall not in any way
be held liable by reason of any insufficiency in any of the Designated
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.
(b)
(c) If (i) the Issuer shall have failed to give investment directions for
any funds on deposit in the Designated Accounts to the Indenture
Trustee by 11:00 a.m., New York City Time (or such other time as may
be agreed by the Issuer and the Indenture Trustee) on any Business
Day; or (ii) a Default or Event of Default shall have occurred and be
continuing with respect to the Notes but the Notes shall not have been
declared due and payable pursuant to SECTION 5.2, or, 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 Designated
Accounts in one or more Eligible Investments selected by the Indenture
Trustee.
(d)
1.2 SECTION RELEASE OF TRUST ESTATE .
1.3
(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 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.
(a) 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, 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 Designated Accounts. The Indenture Trustee
shall release property from the lien of this Indenture pursuant to
this SECTION 8.4(b) only upon receipt of an Issuer Request accompanied
by an Officer's Certificate, an Opinion of Counsel and (if required by
the TIA) Independent Certificates in accordance with TIA ss.ss. 314(c)
and 314(d)(1) meeting the applicable requirements OF SECTION 11.1.
(b)
1.2 SECTION OPINION OF COUNSEL . The Indenture Trustee shall receive at least
seven days' 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.
1.3
1.4
ARTICLE IX
SUPPLEMENTAL INDENTURES
1.1 SECTION SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS .
1.2
(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 Trust Indenture Act 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 to additional property to the lien of
this Indenture;
(i) 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 contained;
(i) 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;
(i) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(i) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent
with any other provision herein or in any supplemental indenture
or in any other Basic Document;
(i) to evidence and provide for the acceptance of the appointment
hereunder by a successor or additional trustee with respect to
the Notes and to add to or change any of the provisions of this
Indenture as shall be necessary to facilitate the administration
of the trusts hereunder by more than one trustee, pursuant to the
requirements of ARTICLE VI; or
(i) 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.
(a) 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.
(b)
1.2 SECTION SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS .
1.3
(a) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, also may, with prior notice to the Rating Agencies and with the
consent of the Holders of not less than a majority of the Outstanding
Amount of the Notes, by Act of such Holders delivered to 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 of 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:
(b)
(i) change the due date of any instalment of principal of or interest
on any Note, or reduce the principal amount thereof, the interest
rate applicable thereto, or the Redemption Price with respect
thereto, change any place of payment where, or the coin or
currency in which, any Note or any interest thereon is payable,
or impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds
available therefor, as provided in ARTICLE V, to the payment of
any such amount due on the Notes on or after the respective due
dates thereof (or, in the case of redemption, on or after the
Redemption Date);
(i) reduce the percentage of the Outstanding Amount of the Notes, the
consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of
this Indenture or certain defaults hereunder and their
consequences as provided for in this Indenture;
(i) modify or alter the provisions of the proviso to the definition
of the term "Outstanding";
(i) reduce the percentage of the Outstanding Amount of the 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;
(i) 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;
(i) 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
(i) 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 thereto or deprive the Holder of any Note of the
security afforded by the lien of this Indenture.
(a) The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected (such that the consent of each Noteholder
would be required) by any supplemental indenture proposed pursuant to
this SECTION 9.2 and any such determination shall be binding upon the
Holders of all Notes, whether authenticated and delivered thereunder
before or after the date upon which such supplemental indenture
becomes effective. The Indenture Trustee shall not be liable for any
such determination made in good faith.
(b)
(c) It shall be sufficient if an Act of Noteholders approves the
substance, but not the form, of any proposed supplemental indenture.
(d)
(e) Promptly after the execution by the Issuer and the Indenture Trustee
of any supplemental indenture pursuant to this SECTION 9.2, the
Indenture Trustee 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.
(f)
1.2 SECTION EXECUTION OF SUPPLEMENTAL INDENTURES . In executing, or permitting
the additional trusts created by, any supplemental indenture permitted by this
ARTICLE IX or the modifications thereby of the trusts created by this Indenture,
the Indenture Trustee shall be entitled to receive, and subject to SECTIONS 6.1
AND 6.2, shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Indenture Trustee may, but shall not be obligated to, enter
into any such supplemental indenture that affects the Indenture Trustee's own
rights, duties, liabilities or immunities under this Indenture or otherwise.
1.3
1.4 SECTION 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.
1.5
1.6 SECTION 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.
1.7
1.8 SECTION 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.
1.9
1.10
ARTICLE X
REDEMPTION OF NOTES
1.1 SECTION REDEMPTION . The Redeemable 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 8.01 of the Trust Sale and
Servicing Agreement. The date on which such redemption shall occur is the
Distribution Date following the Optional Purchase Date identified by Servicer in
its notice of exercise of such purchase option (the "REDEMPTION DATE"). The
purchase price for the Redeemable Notes shall be equal to the applicable
Redemption Price, provided the Issuer has available funds sufficient to pay such
amount. The Servicer or the Issuer shall furnish the Rating Agencies notice of
such redemption. If the Redeemable Notes are to be redeemed pursuant to this
SECTION 10.1, the Servicer or the Issuer shall furnish notice thereof to the
Indenture Trustee not later than 25 days prior to the Redemption Date and the
Indenture Trustee (based on such notice) shall withdraw from the Collection
Account and deposit into the Note Distribution Account, on the Redemption Date,
the aggregate Redemption Price of the Redeemable Notes, whereupon all such Notes
shall be due and payable on the Redemption Date.
1.1 SECTION FORM OF REDEMPTION NOTICE .
1.2
(a) Notice of redemption of the Redeemable Notes under SECTION 10.1 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 Noteholder of Redeemable Notes of record at
such Noteholder's address appearing in the Note Register.
(a) All notices of redemption shall state:
(b)
(i) the Redemption Date;
(i) the applicable Redemption Price; and
(i) the place where Redeemable 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).
(a) Notice of redemption of the Redeemable 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 Redeemable Note shall not impair or affect the validity
of the redemption of any other Redeemable Note.
(b)
1.2 SECTION NOTES PAYABLE ON REDEMPTION DATE .
1.3
1.4 The Redeemable Notes 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.
1.5
1.6
ARTICLE XI
MISCELLANEOUS
1.1 SECTION COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
1.2
(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;
(i) 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;
(i) 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
(i) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with.
(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 90 days of such deposit)
to the Issuer of the Collateral or other property or securities
to be so deposited.
(ii)
(iii)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.
(i) Other than with respect to the release of any Warranty
Receivables, Administrative 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 90 days of such release) of the property
or securities proposed to be released and stating that
in the opinion of such Person the proposed release will
not impair the security under this Indenture in
contravention of the provisions hereof.
(i) 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 Warranty Receivables,
Administrative 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.
(i) 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 Designated
Accounts and the Certificate Distribution Account as
and to the extent permitted or required by the Basic
Documents and (C) take any other action not
inconsistent with the TIA.
1.1 SECTION FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE .
1.2
(a) In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
(a) 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.
(b)
(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)
(e) 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 rely upon the truth and accuracy of any statement or opinion
contained in any such document as provided in ARTICLE VI.
(f)
1.2 SECTION ACTS OF NOTEHOLDERS .
1.3
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by
Noteholders or a class of Noteholders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and
except as herein otherwise expressly provided such action shall become
effective when such instrument or instruments are delivered to the
Indenture Trustee, and, where it is hereby expressly required, to the
Issuer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the
"ACT" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and
(subject to SECTION 6.1) conclusive in favor of the Indenture Trustee
and the Issuer, if made in the manner provided in this SECTION 11.3.
(a) 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.
(b)
(c) The ownership of Notes shall be proved by the Note Register.
(d)
(e) 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.
(f)
1.2 SECTION 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:
1.3
(a) the Indenture Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Indenture Trustee at its Corporate
Trust Office, or
(b)
(c) the Issuer by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if in writing and either sent
by electronic facsimile transmission (with hard copy to follow via
first class mail) or mailed, by certified mail, return receipt
requested to the Issuer and the Owner Trustee each at the address
specified in APPENDIX B to the Trust Sale and Servicing Agreement.
(d)
(e) The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee and the Indenture Trustee shall
likewise promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee.
(f)
(g) Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be delivered as specified
in APPENDIX B to the Trust Sale and Servicing Agreement.
(h)
1.4 SECTION NOTICES TO NOTEHOLDERS; WAIVER .
1.5
(a) Where this Indenture provides for notice to Noteholders of any event,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) if it is in writing and mailed, first-class,
postage prepaid to each Noteholder affected by such event, at such
Person's address as it appears on the Note Register, not later than
the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. If notice to Noteholders is given by
mail, neither the failure to mail such notice nor any defect in any
notice so mailed to any particular Noteholder shall affect the
sufficiency of such notice with respect to other Noteholders, and any
notice that is mailed in the manner herein provided shall conclusively
be presumed to have been duly given regardless of whether such notice
is in fact actually received.
(a) 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.
(b)
(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)
(e) Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance
constitute an Event of Default.
(f)
1.2 SECTION 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.
1.1 SECTION CONFLICT WITH TRUST INDENTURE ACT .
1.2
(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.
(a) The provisions of TIA ss.ss. 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.
(b)
1.2 SECTION 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.
1.1 SECTION SUCCESSORS AND ASSIGNS .
1.2
(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.
(a) All covenants and agreements of the Indenture Trustee in this
Indenture shall bind its successors and assigns, whether so expressed
or not.
(b)
1.2 SECTION SEPARABILITY .
1.3
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.
1.1 SECTION BENEFITS OF INDENTURE .
1.2
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, the Certificateholders (only to the extent expressly provided
herein) and any other party secured hereunder, and any other Person with an
ownership interest in any part of the Trust Estate, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
1.1 SECTION LEGAL HOLIDAYS .
1.2
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.
1.1 SECTION GOVERNING LAW .
THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
1.1 SECTION COUNTERPARTS .
1.2
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.
1.1 SECTION RECORDING OF INDENTURE .
1.2
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.
1.1 SECTION NO RECOURSE .
1.2
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
(i) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee
in its individual capacity, 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 its individual capacity (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 capacity) and except
that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure
to pay any instalment or call owing to such entity. For all
purposes of this Indenture, in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and
provisions of ARTICLES VI, VII AND VIII of the Trust Agreement.
1.1 SECTION NO PETITION .
1.2
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 Seller or the Issuer to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Seller
or 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 Seller or the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller or the Issuer.
1.1 SECTION INSPECTION .
1.2
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.
1.1 SECTION INDEMNIFICATION BY AND REIMBURSEMENT OF THE SERVICER .
1.2
The Indenture Trustee acknowledges and agrees to reimburse (i) the Servicer
and its directors, officers, employees and agents in accordance with SECTION
6.03(b) of the Trust Sale and Servicing Agreement and (ii) the Seller and its
directors, officers, employees and agents in accordance with SECTION 3.04 of the
Trust Sale and Servicing Agreement. The Indenture Trustee further acknowledges
and accepts the conditions and limitations with respect to the Servicer's
obligation to indemnify, defend and hold the Indenture Trustee harmless as set
forth in SECTION 6.01(a)(iv) of the Trust Sale and Servicing Agreement.
* * * * *
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.
CAPITAL AUTO RECEIVABLES
ASSET TRUST 1999-1
By: BANKERS TRUST (DELAWARE),
not in its individual
capacity but solely as
Owner Trustee,
By: __________________________
Name: Lillian Peros
Title: Attorney-in-Fact
THE FIRST NATIONAL BANK OF CHICAGO, as Indenture Trustee,
By: ____________________________
Name: Steven M. Wagner
Title: First Vice President
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 Capital Auto Receivables Asset 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 11th day of March, 1999.
Notary Public in and for the State of
__________________________.
My commission expires:
- ----------------------------
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 The
First National Bank of Chicago, a national banking association, and that he
executed the same as the act of said national banking association for the
purpose and consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 11th day of March, 1999.
Notary Public in and for the State of
_______________________.
My commission expires:
- ----------------------------
EXHIBIT A
LOCATION OF SCHEDULE OF RECEIVABLES
The SCHEDULE OF RECEIVABLES is on file at the offices of:
1. The Indenture Trustee
2. The Owner Trustee
3. General Motors Acceptance Corporation
4. Capital Auto Receivables, Inc.
EXHIBIT B
FORM OF NOTE DEPOSITORY AGREEMENT
EXHIBIT C
FORM OF ASSET BACKED NOTES
REGISTERED $____________
No. R-
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. __________
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.1
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-1
CLASS A-__% ASSET BACKED NOTES
CAPITAL AUTO RECEIVABLES ASSET TRUST 1999-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "ISSUER"), for value received, hereby promises to pay to
_______________, or registered assigns, the principal sum of _______________
DOLLARS ($_________) payable in accordance with the Indenture (as defined on the
reverse side of this Note), on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction, the numerator of which is the
initial principal amount hereof and the denominator of which is aggregate
principal amount for such Class A-__ Notes by (ii) the aggregate amount, if any,
payable on such Distribution Date from the Note Distribution Account in respect
of principal on the Class A-__ Notes pursuant to SECTIONS 2.7, 3.1 AND 8.2(c) of
1Not applicable to the Class A-1 Notes. For the Class A-1 Notes see SECTION
2.15(d).
the Indenture; PROVIDED, HOWEVER, that the entire unpaid principal amount of
this Note shall be due and payable on [the earlier of] ___________ (the "FINAL
SCHEDULED DISTRIBUTION DATE") [and the Redemption Date, if any, pursuant to
SECTION 10.1 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 (or, for the
initial Distribution Date, the outstanding principal balance on the Closing
Date)). Interest on this Note will accrue from and including the Closing Date,
and will be payable on each Distribution Date in an amount equal to the
Noteholders' Interest Distributable Amount for such Distribution Date. 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, 34/360). Such principal of and
interest on this Note shall be paid in the manner specified on the reverse
hereof. All interest payments on each class of Notes on any Distribution Date
shall be made pro rata to the Noteholders of such class entitled thereto.
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.
Date: March 11, 1999 CAPITAL AUTO RECEIVABLES ASSET
TRUST 1999-1,
By: BANKERS TRUST (DELAWARE),
not in its individual capacity but solely
as Owner Trustee under the Trust Agreement
By: ______________________________
Name: Lillian Peros
Title: Vice President
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely
as Indenture Trustee
By: ___________________________
Name: Steven M. Wagner
Title: First Vice President
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A-__ Asset Backed Notes (herein called the "CLASS A-__
NOTES"), all issued under an Indenture, dated as of March 11, 1999 (such
Indenture, as supplemented or amended, is herein called the "INDENTURE"),
between the Issuer and The First National Bank of Chicago, a national banking
association, 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 Class A-___ Notes are one of three duly authorized classes of
Notes of the Issuer issued pursuant to the Indenture (collectively, as to all
Notes of all such classes, the "NOTES"). 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 Class A-__ Notes and all other Notes issued pursuant to the Indenture
are and will be equally and ratably secured by the Collateral pledged as
security therefor 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 and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
instalment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder will not, prior to the
date which is one year and one day after the termination of this Indenture with
respect to the Issuer, acquiesce, petition or otherwise invoke or cause the
Seller or the Issuer to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Seller or 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 Seller or the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Seller or the Issuer.
Each Noteholder, by acceptance of a Note or, in the case of a Note Owner, a
beneficial interest in a Note, expresses its intention that this Note qualifies
under applicable tax law as indebtedness secured by the Collateral and, unless
otherwise required by appropriate taxing authorities, agrees to treat the Notes
as indebtedness secured by the Collateral for the purpose of federal income
taxes, state and local income and franchise taxes, Michigan single business tax,
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 Amount of all the Notes. The Indenture also contains provisions
permitting the Holders of Notes representing specified percentages of the
Outstanding Amount of the Notes, on behalf of the Holders of all the Notes, to
waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of the Noteholders.
The term "ISSUER" as used in this Note includes any successor to the Issuer
under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder and thereunder
shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither the Seller, the Servicer, the Indenture
Trustee nor the Owner Trustee in their respective individual capacities, any
owner of a beneficial interest in the Issuer, nor any of their respective
partners, beneficiaries, agents, officers, directors, employees or successors or
assigns, shall be personally liable for, nor shall recourse be had to any of
them for, the payment of principal of or interest on, or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in this Note or the Indenture, it being expressly understood that said
covenants, obligations and indemnifications have been made by the Owner Trustee
solely as the Owner Trustee in the assets of the Issuer. The Holder of this Note
by the acceptance hereof agrees that, except as expressly provided in the Basic
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing 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.
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:
- ------------------------------ ----------------------------------
1NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
EXHIBIT D
RULE 144A CERTIFICATE
Capital Auto Receivables, Inc.
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
The First National Bank of Chicago,
as Trustee of Capital Auto Receivables Asset Trust 1999-1
One First National Plaza
Chicago, IL 60670
Ladies and Gentlemen:
In connection with the purchase of a Class A-1 5.364% Asset Backed Note
(the "CLASS A-1 NOTE") of the Capital Auto Receivables Asset Trust 1999-1, the
undersigned buyer ("BUYER") hereby acknowledges, represents and agrees that:
(1) The Buyer has received the Private Placement Memorandum dated March 11, 1999
(the "PRIVATE PLACEMENT MEMORANDUM") relating to the offering of the Class A-1
Note (including EXHIBIT A thereto).
(2)
(3) Buyer is a "qualified institutional buyer" as defined under Rule 144A under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), acting for its
own account or for the accounts of other "qualified institutional buyers" as
defined under Rule 144A under the Securities Act. Buyer is familiar with Rule
144A under the Securities Act and Buyer is aware that the seller of the Class
A-1 Note to it 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.
(4)
(5) Buyer is purchasing the Class A-1 Note for its own account (or the accounts
of other "qualified institutional buyers"), not with a view to, or for offer or
sale in connection with, any distribution thereof, subject to the disposition of
Buyer's property (or property held in the accounts of other "qualified
institutional buyers") being at all times within Buyer's control and subject to
Buyer's ability to resell such Class A-1 Note pursuant to Rule 144A under the
Securities Act. Buyer agrees to offer, sell or otherwise transfer the Class A-1
Note only in conformity with the restrictions on transfer set forth in the
Indenture dated as of March 11, 1999 pursuant to which the Class A-1 Note was
issued and the legend set forth on the definitive physical certificate
evidencing the Class A-1 Note. Buyer acknowledges the definitive certificate
evidencing the Class A-1 Note will bear a legend in the form set forth in the
paragraph entitled "Restrictions on the Transferability of the Notes" in the
Private Placement Memorandum
(6)
(7) Buyer acknowledges that you and others will rely upon our confirmations,
acknowledgements and agreements set forth herein, and Buyer agrees to notify you
promptly in writing if any of the information herein ceases to be accurate and
complete.
(8)
(9)
(10) ______________________________
(11) Print Name of Buyer
(12)
(13) By:____________________________
(14)
(15) Name:
(16)
(17) Title:
(18)
Date: __________________________