OH&S Draft
8/26/96
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CHASE MANHATTAN AUTO OWNER TRUST 199_-_
Class A-1 _____% Asset Backed Notes
Class A-2 _____% Asset Backed Notes
INDENTURE
Dated as of ______, 199__
---------------------------------
as Trustee
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions................................................................. 2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act........................... 2
SECTION 1.3 Usage of Terms.............................................................. 2
SECTION 1.4 Calculations of Interest.................................................... 3
ARTICLE II
THE NOTES
SECTION 2.1 Form........................................................................ 3
SECTION 2.2 Execution, Authentication and Delivery...................................... 3
SECTION 2.3 Temporary Notes............................................................. 4
SECTION 2.4 Registration of Transfer and Exchange....................................... 4
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes.................................. 6
SECTION 2.6 Persons Deemed Owner........................................................ 7
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest....................... 7
SECTION 2.8 Cancellation................................................................ 8
SECTION 2.9 Release of Collateral....................................................... 8
SECTION 2.10 Book-Entry Notes............................................................ 8
SECTION 2.11 Notices to Clearing Agency.................................................. 9
SECTION 2.12 Definitive Notes............................................................ 10
SECTION 2.13 Authenticating Agent........................................................ 10
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest........................................... 12
SECTION 3.2 Maintenance of Office or Agency............................................. 12
SECTION 3.3 Money for Payments To Be Held in Trust...................................... 12
SECTION 3.4 Existence................................................................... 14
SECTION 3.5 Protection of Trust Estate.................................................. 14
SECTION 3.6 Opinions as to Trust Estate................................................. 15
SECTION 3.7 Performance of Obligations; Servicing of Receivables........................ 15
SECTION 3.8 Negative Covenants.......................................................... 16
SECTION 3.9 Annual Statement as to Compliance........................................... 17
SECTION 3.10 The Issuer May Consolidate, Etc. Only on Certain Terms...................... 17
SECTION 3.11 Successor or Transferee..................................................... 19
SECTION 3.12 No Other Business........................................................... 20
SECTION 3.13 No Borrowing................................................................ 20
(i)
Page
SECTION 3.14 Servicer's Obligations...................................................... 20
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities........................... 20
SECTION 3.16 Capital Expenditures........................................................ 20
SECTION 3.17 Restricted Payments......................................................... 20
SECTION 3.18 Notice of Events of Default................................................. 21
SECTION 3.19 Further Instruments and Acts................................................ 21
SECTION 3.20 Dissolution upon Bankruptcy of the General Partner.......................... 21
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture..................................... 21
SECTION 4.2 Application of Trust Money.................................................. 22
SECTION 4.3 Repayment of Moneys Held by Paying Agent.................................... 23
SECTION 4.4 Duration of the Position of the Trustee for the Benefit of
Certificateholders.......................................................... 23
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default........................................................... 23
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.......................... 24
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by the Trustee......... 24
SECTION 5.4 Remedies; Priorities........................................................ 27
SECTION 5.5 Optional Preservation of the Receivables.................................... 28
SECTION 5.6 Limitation of Suits......................................................... 28
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest....... 29
SECTION 5.8 Restoration of Rights and Remedies.......................................... 29
SECTION 5.9 Rights and Remedies Cumulative.............................................. 29
SECTION 5.10 Delay or Omission Not a Waiver.............................................. 29
SECTION 5.11 Control by Noteholders...................................................... 30
SECTION 5.12 Waiver of Past Defaults..................................................... 30
SECTION 5.13 Undertaking for Costs....................................................... 31
SECTION 5.14 Waiver of Stay or Extension Laws............................................ 31
SECTION 5.15 Action on Notes............................................................. 31
SECTION 5.16 Performance and Enforcement of Certain Obligations.......................... 32
(ii)
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ARTICLE VI
THE TRUSTEE
SECTION 6.1 Duties of the Trustee....................................................... 32
SECTION 6.2 Rights of the Trustee....................................................... 34
SECTION 6.3 Individual Rights of the Trustee............................................ 35
SECTION 6.4 The Trustee's Disclaimer.................................................... 35
SECTION 6.5 Notice of Defaults.......................................................... 35
SECTION 6.6 Reports by the Trustee to Holders........................................... 35
SECTION 6.7 Compensation and Indemnity.................................................. 35
SECTION 6.8 Replacement of the Trustee.................................................. 36
SECTION 6.9 Successor Trustee by Merger................................................. 37
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee............................... 37
SECTION 6.11 Eligibility; Disqualification............................................... 38
SECTION 6.12 Preferential Collection of Claims Against the Issuer........................ 39
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 The Issuer To Furnish the Trustee Names and Addresses of the Noteholders.. . 39
SECTION 7.2 Preservation of Information; Communications to the Noteholders.............. 39
SECTION 7.3 Reports by the Issuer....................................................... 40
SECTION 7.4 Reports by the Trustee...................................................... 40
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money......................................................... 40
SECTION 8.2 Trust Accounts.............................................................. 41
SECTION 8.3 General Provisions Regarding Accounts....................................... 42
SECTION 8.4 Release of Trust Estate..................................................... 43
SECTION 8.5 Opinion of Counsel.......................................................... 43
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders...................... 44
SECTION 9.2 Supplemental Indentures with Consent of the Noteholders..................... 45
SECTION 9.3 Effect of Supplemental Indenture............................................ 46
SECTION 9.4 Conformity with Trust Indenture Act......................................... 47
(iii)
Page
SECTION 9.5 Reference in Notes to Supplemental Indentures............................... 47
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption.................................................................. 47
SECTION 10.2 Form of Redemption Notice................................................... 48
SECTION 10.3 Notes Payable on Redemption Date............................................ 48
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc................................... 48
SECTION 11.2 Form of Documents Delivered to the Trustee.................................. 50
SECTION 11.3 Actions of Noteholders...................................................... 51
SECTION 11.4 Notices, etc., to the Trustee, the Issuer, and Rating Agencies.............. 52
SECTION 11.5 Notices to Noteholders; Waiver.............................................. 52
SECTION 11.6 Alternate Payment and Notice Provisions..................................... 53
SECTION 11.7 Conflict with Trust Indenture Act........................................... 53
SECTION 11.8 Effect of Headings and Table of Contents.................................... 53
SECTION 11.9 Successors and Assigns...................................................... 53
SECTION 11.10 Separability................................................................ 54
SECTION 11.11 Benefits of Indenture....................................................... 54
SECTION 11.12 Legal Holidays.............................................................. 54
SECTION 11.13 GOVERNING LAW............................................................... 54
SECTION 11.14 Counterparts................................................................ 54
SECTION 11.15 Recording of Indenture...................................................... 54
SECTION 11.16 Trust Obligation............................................................ 54
SECTION 11.17 No Petition................................................................. 55
SECTION 11.18 Inspection.................................................................. 55
Exhibit A Schedule of Receivables
Exhibit B Form of Class A-1 Note
Exhibit C Form of Class A-2 Note
Exhibit D Note Depository Agreement
(iv)
CROSS REFERENCE TABLE 1
TIA Section Indenture Section
310 (a)(1).................................................................................. 6.11
(a)(2).................................................................................. 6.11
(a)(3).................................................................................. 6.10
(a)(4).................................................................................. N.A. 2
(a)(5).................................................................................. 6.11
(b) ............................................................................... 6.8; 6.11
(c) ............................................................................... N.A.
311 (a) ............................................................................... 6.12
(b) ............................................................................... 6.12
(c) ............................................................................... N.A.
312 (a) ............................................................................... 7.1; 7.2
(b) ............................................................................... 7.2
(c) ............................................................................... 7.2
313 (a) ............................................................................... 7.4
(b)(1).................................................................................. 7.4
(b)(2).................................................................................. 7.4
(c) ............................................................................... 7.4
(d) ............................................................................... 7.3
314 (a) ............................................................................... 7.3
(b) ............................................................................... 3.6
(c)(1).................................................................................. 11.1
(c)(2).................................................................................. 11.1
(c)(3).................................................................................. 11.1
(d) ............................................................................... 11.1
(e) ............................................................................... 11.1
(f) ............................................................................... N.A.
315 (a) ............................................................................... 6.1
(b) ............................................................................... 6.5; 11.5
(c) ............................................................................... 6.1
(d) ............................................................................... 6.1
(e) ............................................................................... 5.13
316 (a) (last sentence)..................................................................... 1.1
(a)(1)(A)............................................................................... 5.11
(a)(1)(B)............................................................................... 5.12
(a)(2).................................................................................. N.A.
(b) ............................................................................... 5.7
(c) ............................................................................... N.A.
317 (a)(1).................................................................................. 5.3
(a)(2).................................................................................. 5.3
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1 Note: This Cross Reference Table shall not, for any purpose,
be deemed to be part of this Indenture.
2 N.A. means Not Applicable.
(b) ............................................................................... 3.3
318 (a) ............................................................................... 11.7
INDENTURE dated as of , 199 , between CHASE MANHATTAN AUTO TRUST 199_,
a Delaware business trust (the "Issuer"), and _______________________, an
__________ banking corporation, solely as trustee and not in its individual
capacity (the "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 Issuer's Class A-1 __%
Asset Backed Notes (the "Class A-1 Notes"), and Class A-2 __% Asset Backed Notes
(the "Class A-2 Notes" and, together with the Class A-1 Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Trustee at the Closing Date, as
Trustee for the benefit of the Holders of the Notes and (only to the extent
expressly provided herein) the Certificateholders, all of the Issuer's right,
title and interest in, to and under (a) the Receivables listed in Schedule A
hereto, all proceeds thereof and all amounts and monies due [or received]
thereon on and after the Cutoff Date (including proceeds of the repurchase of
Receivables by the Seller pursuant to Section 3.2 of the Sale and Servicing
Agreement or the purchase of Receivables by the Servicer pursuant to Section
4.7 of the Sale and Servicing Agreement); (b) the security interests in the
Financed Vehicles granted by the Obligors pursuant to the Receivables and in
any repossessed Financed Vehicles; (c)Liquidation Proceeds and in any proceeds
of any extended warranties, theft and physical damage, credit life or credit
disability policies relating to the Financed Vehicles or the Obligors; (d) any
proceeds from Dealer repurchase obligations relating to the Receivables; (e)
funds on deposit from time to time in the Trust Accounts, and in all
investments and proceeds thereof (but excluding all investment income
thereon); (f) the 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, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds of
any of the foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction except
as set forth herein, and to secure compliance with the provisions of this
Indenture, all as provided in this Indenture.
The Trustee, as trustee on behalf of the Holders of the Notes,
acknowledges such Grant, accepts the trusts under this Indenture in accordance
with the provisions of this Indenture and agrees to perform its duties
required in this Indenture to the best of its ability to the end that the
interests of the Holders of the Notes and (only to the extent expressly
provided herein) Holders of the Certificates may be adequately and effectively
protected.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. Capitalized terms are used in this Indenture
as defined in Section 1.1 to the Sale and Servicing Agreement dated as of _____,
199_, between the Issuer and CHASE MANHATTAN BANK USA, N.A., as Seller and
Servicer.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuer and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
have the meaning assigned to them by such definitions.
SECTION 1.3 Usage of Terms. With respect to all terms in this
Indenture, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a
visible form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein entered into in
accordance with their respective terms and not prohibited by this Indenture;
references to Persons include their permitted successors and assigns; and the
term "including" means "including without limitation." All references herein
to Articles, Sections,
2
Subsections and Exhibits are references to Articles, Sections, Subsections and
Exhibits contained in or attached to this Indenture unless otherwise
specified.
SECTION 1.4 Calculations of Interest. All calculations of interest
made hereunder shall be made on the basis of a year of 360 days of twelve
30-day months.
ARTICLE II
THE NOTES
SECTION 2.1 Form. The Class A-1 Notes and the Class A-2 Notes, in
each case together with the Trustee's certificate of authentication, shall be
in substantially the forms set forth in Exhibits B and C, respectively, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may, consistently herewith, be determined by the officers executing
such Notes, as evidenced by their execution of the Notes. Any portion of the
text of any Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note. Each Note shall be dated the date
of its authentication. The Notes shall be issuable as registered Notes in the
minimum denomination of $1,000 and in integral multiples thereof (except for
one Note of each class which may be issued in a denomination other than an
integral multiple of $1,000).
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
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes. No Note shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Note a certificate of authentication substantially in
the form provided for herein executed by the Trustee by the manual signature
of one of its authorized signatories, and such certificate upon any Note shall
be conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder. The terms of the Notes set forth in
Exhibits B and C are part of the terms of this Indenture.
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.
SECTION 2.2 Execution, Authentication and Delivery. The
Notes shall be executed on behalf of the Issuer by any of its
Authorized Officers or by any other authorized signatory of the
3
Issuer. The signature of any such Authorized Officer on the Notes may be manual
or facsimile.
The Trustee shall, upon written order of the Seller, authenticate and
deliver Class A-1 Notes for original issue in an aggregate principal amount of
$______ and Class A-2 Notes for original issue in the aggregate principal amount
of $______. The respective aggregate principal amount of Class A-1 Notes and
Class A-2 Notes outstanding at any time may not exceed such amounts, except as
provided in Section 2.5.
SECTION 2.3 Temporary Notes. Pending the preparation of Definitive
Notes, the Issuer may execute, and at the direction of the Issuer the Trustee
shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the officers executing
such Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects
be entitled to the same benefits under this Indenture as Definitive Notes.
SECTION 2.4 Registration of Transfer and Exchange. The
Issuer shall cause to be kept a register (the "Note Register") in
which, subject to such reasonable regulations as it may prescribe,
the Note Register shall provide for the registration of the Notes
and the registration of transfers of the Notes. The Chase
Manhattan Bank shall initially be "Note Registrar" for the purpose
of registering Notes and transfers of Notes as herein provided. In
the event that, subsequent to the date of issuance of the Notes,
The Chase Manhattan Bank notifies the Trustee that it is unable to
act as Note Registrar, the Trustee shall act, or the Trustee shall,
with the consent of the Issuer, appoint another bank or trust
company, having an office or agency located in The City of New York
and which agrees to act in accordance with the provisions of this
Indenture applicable to it, to act, as successor Note Registrar
under this Indenture.
The Trustee may revoke such appointment and remove The Chase
Manhattan Bank as Note Registrar if the Trustee determines in its sole
discretion that The Chase Manhattan Bank failed to perform its obligations
under this Indenture in any material respect. The Chase Manhattan Bank shall
be permitted to resign as Note Registrar
4
upon 30 days' written notice to the Trustee, the Seller and the Servicer;
provided, however, that such resignation shall not be effective and The Chase
Manhattan Bank shall continue to perform its duties as Note Registrar until
the Trustee has appointed a successor Note Registrar with the consent of the
Issuer.
If a Person other than the Trustee is appointed by the Issuer as the
Note Registrar, the Issuer will give the Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and any change in the
location, of the Note Register, and the Trustee shall have the right to
inspect the Note Register at all reasonable times and to obtain copies
thereof, and the Trustee shall have the right to conclusively rely upon a
certificate executed on behalf of the Note Registrar by an Executive Officer
thereof as to the names and addresses of the Holders of the Notes and the
principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.2, if the
requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute,
the Trustee shall authenticate and (if the Note Registrar is different than
the Trustee, then the Note Registrar shall) deliver to the Noteholder, in the
name of the designated transferee or transferees, one or more new Notes,
in any authorized denominations, of the same class and a like aggregate
principal amount.
At the option of the Holder, the Notes may be exchanged for other
Notes in any authorized denominations, of the same class and a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office
or agency. Whenever any Notes are so surrendered for exchange, if the
requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute
and the Trustee shall authenticate and (if the Note Registrar is different
than the Trustee, then the Note Registrar shall) deliver to the Noteholder,
the Notes which the Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of the
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be (i) duly endorsed by, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustee 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 is located, or by a member firm of a national
securities exchange, and (ii) accompanied by such other documents as the
Trustee may require.
5
No service charge shall be made to a Holder for any registration of
transfer or exchange of the Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Notes, other
than exchanges pursuant to Section 2.3 or 9.5 not involving any transfer.
The preceding provisions of this section notwithstanding, the Issuer
shall not be required to make and the Note Registrar need not register
transfers or exchanges of the Notes selected for redemption or of any Note for
a period of 15 days preceding the due date for any payment in full with
respect to the Note.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes. If
(i) any mutilated Note is surrendered to the Note Registrar, or the
Note Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered
to the Note Registrar and the Trustee such security or indemnity as
may be required by them to hold the Issuer, the Note Registrar and
the Trustee harmless, then, in the absence of notice to the Issuer,
the Note Registrar or the Trustee that such Note has been acquired
by a bona fide purchaser, and provided that the requirements of
Section 8-405 of the UCC are met, the Issuer shall execute and the
Trustee shall authenticate and (if the Note Registrar is different
from the Trustee, the Note Registrar shall) deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen
Note, a replacement Note of like class, tenor and denomination;
provided that if any such destroyed, lost or stolen Note, but not
a mutilated Note, shall have become or within seven days shall be
due and payable, or shall have been called for redemption, instead
of issuing a replacement Note, the Issuer may pay such destroyed,
lost or stolen Note when so due or payable or upon the Redemption
Date without surrender thereof. If, after the delivery of such
replacement Note or payment of a destroyed, lost or stolen Note
pursuant to the proviso to the preceding sentence, a bona fide
purchaser of the original Note in lieu of which such replacement
Note was issued presents for payment such original Note, the
Issuer, the Note Registrar and the Trustee shall be entitled to
recover such replacement Note (or such payment) from the Person to
whom it was delivered or any Person taking such replacement Note
from such Person to whom such replacement Note was delivered or any
assignee of such Person, except a bona fide purchaser, and shall be
entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer, the Note Registrar or the Trustee in
connection therewith.
Upon the issuance of any replacement Note under this Section, 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 the fees and expenses of
the Trustee) connected therewith.
6
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Trustee, the Note
Registrar and any agent of the Issuer, the Trustee or the Note Registrar may
treat the Person in whose name any Note is registered (as of the day of
determination) as the owner of such Note for the purpose of receiving payments
of principal of and interest, if any, on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Issuer, the
Trustee or the Note Registrar nor any agent of the Issuer, the Trustee or the
Note Registrar shall be bound by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest; Defaulted Interest.
(a) The Notes shall accrue interest as provided in the forms of the Class A-1
Note and the Class A-2 Note, set forth in Exhibits B and C, respectively, and
such interest shall be payable on each Distribution Date as specified therein.
Any installment of interest or principal, if any, payable on any Note which is
punctually paid or duly provided for by the Issuer on the applicable
Distribution Date shall be paid to the Person in whose name such Note (or one
or more Predecessor Notes) is registered on the preceding Record Date, by
check mailed first-class, postage prepaid, to such Person's address as it
appears on the Note Register on such Record Date, except that, unless
Definitive Notes have been issued pursuant to Section 2.12, with respect to
the Notes registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payment will be
made by wire transfer in immediately available funds to the account designated
by such nominee, except for the final installment of principal payable with
respect to such Note on a Distribution Date or on a Final Scheduled
Distribution Date (and except for the Redemption Price for any Note called for
redemption pursuant to Section 10.1(a)) which shall be payable as provided
below. The funds represented by any such checks returned undelivered shall be
held in accordance with Section 3.3.
(b) The principal of each Note shall be payable in installments no
later than 12 noon, New York City time, on each Distribution Date as provided
in the forms of the Class A-1 Note and the Class A-2 Note, set forth in
Exhibits B and C, respectively. Notwithstanding the foregoing, the entire
unpaid
7
principal amount of the Notes shall be due and payable, if not previously
paid, on the date on which an Event of Default shall have occurred and be
continuing, if the Trustee or the Holders of the Notes representing a majority
of the Outstanding Amount of the Notes have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2. All
principal payments on each class of Notes shall be made pro rata to the
Noteholders of such class entitled thereto. The Trustee shall notify the
Person in whose name a Note is registered at the close of business on the
Record Date preceding the Distribution Date on which the Issuer expects that
the final installment of principal of and interest on such Note will be paid.
Such notice shall be (i)transmitted by facsimile on such Record Date if
Book-Entry Notes are outstanding or (ii)mailed as provided in Section 10.2 not
later than three Business Days after such Record Date if Definitive Notes are
outstanding and shall specify that such final installment will be payable only
upon presentation and surrender of such Note and shall specify the place where
such Note may be presented and surrendered for payment of such installment.
SECTION 2.8 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Note Registrar, be delivered to the Note Registrar and
shall be promptly cancelled by the Note Registrar. The Issuer may at any time
deliver to the Note Registrar 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 cancelled
by the Note Registrar. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Notes may be held or
disposed of by the Note Registrar in accordance with its standard retention or
disposal policy as in effect at the time unless the Issuer shall direct that
they be destroyed or returned to it; provided that such direction is timely
and the Notes have not been previously disposed of by the Note Registrar.
SECTION 2.9 Release of Collateral. Subject to Section 11.1, the
Trustee shall release property from the lien of this Indenture only upon
request of the Issuer accompanied by an Officer's Certificate, an Opinion of
Counsel and Independent Certificates in accordance with the TIA 314(c) and
314(d)(1) or an Opinion of Counsel in lieu of such Independent Certificates to
the effect that the TIA does not require any such Independent Certificates.
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance,
will be issued in the form of typewritten Notes representing the Book-Entry
Notes, to be delivered to , as agent for The Depository Trust Company, the
initial Clearing Agency, by, or on behalf of, the Issuer. Such Notes shall
initially be registered on the Note Register in the name of Cede & Co., the
nominee of the initial Clearing Agency, and no Note Owner
8
will receive a Definitive Note representing such Note Owner's interest in such
Note, except as provided in Section 2.12. Unless and until definitive, fully
registered Notes have been issued to Note Owners pursuant to Section 2.12:
(a) the provisions of this Section shall be in full force and effect;
(b) the Note Registrar, the Paying Agent and the Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on the Notes and the
giving of instructions or directions hereunder) as the sole Holder of the
Notes, and shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section conflict
with any other provisions of this Indenture, the provisions of this
Section shall control;
(d) the rights of the Note Owners shall be exercised only through the
Clearing Agency (or to the extent the Note Owners are not Clearing Agency
Participants, through the Clearing Agency Participants through which such Note
Owners own Book-Entry Certificates) and shall be limited to those established
by law and agreements between such Note Owners and the Clearing Agency and/or
the Clearing Agency Participants and all references in this Indenture to
actions by the Noteholders shall refer to actions taken by the Clearing Agency
upon instructions from the Clearing Agency Participants, and all references in
this Indenture to distributions, notices, reports and statements to the
Noteholders shall refer to distributions, notices, reports and statements to
the Clearing Agency, as registered holder of the Notes, as the case may be,
for distribution to the Note Owners in accordance with the procedures of the
Clearing Agency. Pursuant to the Note Depository Agreement, unless and until
Definitive Notes are issued pursuant to Section 2.12, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency Participants
and receive and transmit payments of principal of and interest on the Notes to
such Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of the Holders of the Notes evidencing a
specified percentage of the Outstanding Amount of the Notes, the Clearing
Agency shall be deemed to represent such percentage only to the extent that it
has received instructions to such effect from the Note Owners and/or Clearing
Agency Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Notes and has delivered such
instructions to the Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to the Note Owners pursuant to
Section 2.12, the Trustee shall
9
give all such notices and communications specified herein to be given to the
Holders of the Notes to the Clearing Agency, and shall have no obligation to
the Note Owners.
SECTION 2.12 Definitive Notes. If (a) the Servicer advises the
Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its responsibilities with respect to the Notes, and the
Servicer is unable to locate a qualified successor, (b) the Servicer at its
option advises the Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency, or (c) after the occurrence of
an Event of Default, the Note Owners representing beneficial interests
aggregating not less than 50% of the Outstanding Amount of the Notes advise
the Trustee and 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 the
Note Owners of the occurrence of any such event and of the availability of
Definitive Notes to the Note Owners requesting the same. Upon surrender to the
Note Registrar of the typewritten Note or Notes representing the Book-Entry
Notes by the Clearing Agency, accompanied by re- registration instructions,
the Issuer shall execute and the Trustee shall authenticate and (if the Note
Registrar is different than the Trustee, then the Note Registrar shall)
deliver the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the 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 the Definitive Notes, the Trustee shall recognize the Holders of
the Definitive Notes as Noteholders.
SECTION 2.13 Authenticating Agent.
(a) The Trustee may appoint one or more authenticating agents (each,
an "Authenticating Agent") with respect to the Notes which shall be authorized
to act on behalf of the Trustee in authenticating the Notes in connection with
the issuance, delivery, registration of transfer, exchange or repayment of the
Notes. The Trustee hereby appoints The Chase Manhattan Bank as Authenticating
Agent for the authentication of the Notes upon any registration of transfer or
exchange of such Notes. Whenever reference is made in this Indenture to the
authentication of the Notes by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent, other than The Chase Manhattan Bank, shall be
acceptable to the Issuer.
(b) Any institution succeeding to the corporate agency
business of an Authenticating Agent shall continue to be an
Authenticating Agent without the execution or filing of any paper
10
or any further act on the part of the Trustee or such Authenticating Agent.
(c) An Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and the Issuer. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving notice of
termination to such Authenticating Agent and to the Issuer. Upon receiving
such a notice of resignation or upon such a termination, or in case at any
time an Authenticating Agent shall cease to be acceptable to the Trustee or
the Issuer, the Trustee promptly may appoint a successor Authenticating Agent
with the consent of the Issuer. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless acceptable to the Issuer.
(d) The Servicer shall pay the Authenticating Agent from time to time
reasonable compensation for its services under this Section 2.13.
(e) The provisions of Sections 6.1, 6.2, 6.3, 6.4, 6.7 and 6.9 shall
be applicable to any Authenticating Agent.
(f) Pursuant to an appointment made under this Section 2.13, the
Notes may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially
the following form:
This is one of the Notes referred to in the within mentioned
Indenture.
______________________________________,
as Trustee
By: ______________________________________
Authorized Officer
or
_______________________________________
as Authenticating Agent
for the Trustee,
_______________________________________
Authorized Officer
11
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer
will duly and punctually pay the principal of and interest on the
Notes in accordance with the terms of the Notes and this Indenture.
Without limiting the foregoing, subject to Section 8.2(c), the
Issuer will cause to be distributed all amounts on deposit in the
Note Distribution Account on a Distribution Date deposited therein
pursuant to the Sale and Servicing Agreement (i) for the benefit of
the Class A-1 Notes, to Class A-1 Noteholders and (ii) for the
benefit of the Class A-2 Notes, to Class A-2 Noteholders. Amounts
properly withheld under the Code by any Person from a payment to
any Noteholder of interest and/or principal shall be considered as
having been paid by the Issuer to such Noteholder for all purposes
of this Indenture.
SECTION 3.2 Maintenance of Office or Agency. The Issuer
will maintain in The City of New York, an office or agency where
Notes may be surrendered for registration of transfer or exchange.
The Issuer hereby initially appoints the Note Registrar to serve as
its agent for the foregoing purposes. The Issuer will give prompt
written notice to the Trustee of the location, and of any change in
the location, of any such office or agency. If at any time the
Issuer shall fail to maintain any such office or agency or shall
fail to furnish the Trustee with the address thereof, such
surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Issuer hereby appoints the Trustee
as its agent to receive all such surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust. As
provided in Sections 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 Collection Account and the Note
Distribution Account pursuant to Section 8.2(c) shall be made on
behalf of the Issuer by the Trustee or by another Paying Agent, and
no amounts so withdrawn from the Collection Account and the Note
Distribution Account for payments on the Notes shall be paid over
to the Issuer except as provided in this Section 3.3.
On or before each Distribution Date and Redemption Date, the Trustee
or the Paying Agent shall deposit at the direction of the Servicer in
accordance with Section 5.5 of the Sale and Servicing Agreement in the Note
Distribution Account an aggregate sum sufficient to pay the amounts then
becoming due under the Notes, such sum to be held in trust for the benefit of
the Persons entitled thereto and (unless the Paying Agent is the Trustee or
deposit was made by the Trustee) shall promptly notify the Trustee of its
action or failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee (and if the Trustee acts
12
as Paying Agent, it hereby so agrees), subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Trustee notice of any default by the Issuer of
which it has actual knowledge (or any other obligor upon the Notes)
in the making of any payment required to be made with respect to the
Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay
to the Trustee all sums held by it in trust for the payment of the
Notes if at any time it ceases to meet the standards required to be
met by the Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which the sums were held by such Paying Agent; and upon such a payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Subject to applicable laws with respect to the escheat of funds, any
money held by the Trustee or any Paying Agent in trust for the payment of any
amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such
trust and be paid to the Issuer on its 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 Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided that the Trustee or such
Paying Agent, before being required to make any such repayment, shall 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
13
general circulation in The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to the Issuer. The Trustee shall also
adopt and employ, at the expense of the Issuer, any other reasonable means of
notification of such repayment (including, but not limited to, mailing notice
of such repayment to the Holders whose notes have been called but have not
been surrendered for redemption or whose right to or interest in moneys due
and payable but not claimed is determinable from the records of the Trustee or
of any Paying Agent, at the last address of record for each such Holder).
SECTION 3.4 Existence. Except as otherwise permitted by the
provisions of Section 3.10, the Issuer will keep in full effect its existence,
rights and franchises as a business trust under the laws of the State of
Delaware (unless it becomes, or any successor to the 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 will keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and will
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate.
SECTION 3.5 Protection of Trust Estate. The Issuer will from time to
time prepare (or shall cause to be prepared), execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other
instruments, and will take such other action necessary or advisable to:
(a) maintain or preserve the lien and security interest
(and the priority thereof) of this Indenture or carry out more
effectively the purposes hereof;
(b) perfect, publish notice of or protect the validity
of any Grant made or to be made by this Indenture;
(c) enforce the rights of the Trustee and the
Noteholders in any of the Collateral; or
(d) preserve and defend title to the Trust Estate and the
rights of the Trustee and the Noteholders in such Trust Estate
against the claims of all persons and parties.
The Issuer hereby designates the Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required by the Trustee pursuant to this Section.
14
SECTION 3.6 Opinions as to Trust Estate. (a) On the Closing Date, the
Issuer shall furnish to the Trustee an Opinion of Counsel either stating that,
in the opinion of such counsel, such action has been taken with respect to the
recording and filing of this Indenture, any indentures supplemental hereto,
and any other requisite documents, and with respect to the execution and
filing of any financing statements and continuation statements, as are
necessary to perfect and make effective the lien and security interest of this
Indenture and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest effective.
(b) On or before March 31 of each calendar year, commencing with
March 31, 199_, the Issuer shall furnish to the Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been
taken with respect to the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the execution and filing of any financing
statements and continuation statements as are necessary to maintain the lien
and security interest created by this Indenture and reciting the details of
such action or stating that in the opinion of such counsel no such action is
necessary to maintain such lien and security interest. Such Opinion of Counsel
shall also describe the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite
documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and security interest of this Indenture until March 31 in
the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Receivables. (a)
The Issuer will not take any action and will use its best efforts not to
permit any action to be taken by others that would release any Person from any
of such Person's material covenants or obligations under any instrument or
agreement included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
ordered by any bankruptcy or other court or as expressly provided in this
Indenture, any other Basic Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Trustee in 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.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Basic
Documents and in the instruments and agreements included in
15
the Trust Estate, including but not limited to preparing (or causing to be
prepared) and filing (or causing to be filed) all UCC financing statements and
continuation statements required to be filed by the terms of this Indenture
and the Sale and Servicing Agreement in accordance with and within the time
periods provided for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of an Event
of Servicing Termination under the Sale and Servicing Agreement, the Issuer
shall promptly notify the Trustee and the Rating Agencies thereof in
accordance with Section11.4, and shall specify in such notice the action, if
any, the Issuer is taking in respect of such default. If an Event of Servicing
Termination shall arise from the failure of the Servicer to perform any of its
duties or obligations under the Sale and Servicing Agreement with respect to
the Receivables, the Issuer shall take all reasonable steps available to it to
remedy such failure.
(e) Upon any termination of the Servicer's rights and powers pursuant
to the Sale and Servicing Agreement, the Issuer shall promptly notify the
Trustee. As soon as a successor Servicer (other than the Trustee) is
appointed, the Issuer shall notify the Trustee of such appointment, specifying
in such notice the name and address of such successor Servicer.
(f) Without derogating from the absolute nature of the assignment
granted to the Trustee under this Indenture or the rights of the Trustee
hereunder, the Issuer agrees that, unless such action is specifically
permitted hereunder or under the other Basic Documents, it will not, without
the prior written consent of the Trustee or the Holders of at least a majority
of Outstanding Amount of the Notes, amend, modify, waive, supplement,
terminate or surrender, or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any Collateral or the Basic
Documents, or waive timely performance or observance by the Servicer or the
Seller under the Sale and Servicing Agreement; provided that no such amendment
shall (i) increase or reduce in any manner the amount of, or accelerate or
delay the timing of, distributions that are required to be made for the
benefit of the Noteholders, or (ii) reduce the aforesaid percentage of the
Notes which are required to consent to any such amendment, without the consent
of the Holders of all the Outstanding Notes. If any such amendment,
modification, supplement or waiver shall be so consented to by the Trustee or
such Holders, the Issuer agrees, promptly following a request by the 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 Trustee may deem
necessary or appropriate under the circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(a) except as expressly permitted by this Indenture or
the other Basic Documents, sell, transfer, exchange or
16
otherwise dispose of any of the properties or assets of the
Issuer, including those included in the Trust Estate, unless
directed to do so by the Trustee;
(b) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code) or
assert any claim against any present or former Noteholder by reason
of the payment of the taxes levied or assessed upon any part of the
Trust Estate; or
(c) (i) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or
permit any Person to be released from any covenants or obligations
with respect to the Notes under this Indenture except as may be
expressly permitted hereby, (ii) permit any lien, charge, excise,
claim, security interest, mortgage or other encumbrance (other than
the lien of this Indenture) to be created on or extend to or
otherwise arise upon or burden the Trust Estate or any part thereof
or any interest therein or the proceeds thereof (other than tax
liens, mechanics' liens and other liens that arise by operation of
law, in each case on a Financed Vehicle and arising solely as a
result of an action or omission of the related Obligor) or (iii)
permit the lien of this Indenture not to constitute a valid first
priority (other than with respect to any such tax, mechanics' or
other lien) security interest in the Trust Estate.
SECTION 3.9 Annual Statement as to Compliance. The Issuer will
deliver to the Trustee on or before March 31 of each year, commencing March
31, 199_, and otherwise in compliance with the requirements of TIA
Section 314(a)(4), an Officer's Certificate stating, as to the Authorized
Officer signing such Officer's Certificate, that
(a) a review of the activities of the Issuer during such
year and of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge,
based on such review, the Issuer has complied with all conditions and
covenants in all material respects under this Indenture throughout
such year, or, if there has been a default in the compliance of any
such condition or covenant, specifying each such default known to
such Authorized Officer and the nature and status thereof.
SECTION 3.10 The Issuer May Consolidate, Etc. Only on
Certain Terms. (a) The Issuer shall not consolidate or merge with
or into any other Person, unless
17
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized
and existing under the laws of the United States of America or any
state and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of and
interest on all the Notes and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to
be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been
taken; and
(vi) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel each stating that
such consolidation or merger and such supplemental indenture comply
with this Section 3.10 and that all conditions precedent herein
provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act).
(b) Except as otherwise expressly permitted by this Indenture or the
other Basic Documents, the Issuer shall not convey or transfer all or
substantially all of its properties or assets, including those included in the
Trust Estate, to any Person, unless
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of
which is hereby restricted shall (A) be a United States citizen or a
Person organized and existing under the laws of the United States of
America or any state, (B) expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and interest on all the 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, (C) expressly agree by means of such supplemental indenture
that all right, title and interest so
18
conveyed or transferred shall be subject and subordinate to the
rights of the Holders of the Notes, (D) unless otherwise provided in
such supplemental indenture, expressly agree to indemnify, defend and
hold harmless the Issuer against and from any loss, liability or
expense arising under or related to this Indenture and the Notes and
(E) expressly agree by means of such supplemental indenture that such
Person (or if a group of persons, then one specified Person) shall
prepare (or cause to be prepared) and make all filings with the
Commission (and any other appropriate Person) required by the
Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been
taken; and
(vi) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such conveyance or transfer and such supplemental indenture comply
with this Section 3.10 and that all conditions precedent herein
provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act).
SECTION 3.11 Successor or Transferee. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.10(a), the Person formed by
or surviving such consolidation or merger (if other than the Issuer) shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer under this Indenture with the same effect as if such Person had
been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.10(b), Chase Manhattan Auto Trust 199_ will 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 Trustee from the Person acquiring such
assets and properties stating that Chase Manhattan Auto Owner Trust 199_ is
to be so released.
19
SECTION 3.12 No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Receivables in the manner contemplated by this Indenture and the other Basic
Documents, issuing the Notes and the Certificates, making payments thereon, and
such other activities that are necessary, suitable or desirable to accomplish
the foregoing or are incidental thereto as set forth in Section 2.3 of the
Trust Agreement.
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for money borrowed in respect of the Notes or in
accordance with the Basic Documents.
SECTION 3.14 Servicer's Obligations. The Issuer shall use its best
efforts to cause the Servicer to comply with Sections 4.9, 4.10, 4.11 and 5.5
of the Sale and Servicing Agreement.
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities.
Except as contemplated by the Sale and Servicing Agreement or this Indenture,
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 assuming
another's payment or performance on any obligation or capability of so doing
or otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any
stock, obligations, assets or securities of, or any other interest in, or make
any capital contribution to, any other Person.
SECTION 3.16 Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty) other than the purchase of the Receivables and
related property pursuant to the Sale and Servicing Agreement.
SECTION 3.17 Restricted Payments. The Issuer shall not, directly or
indirectly, (a) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the
Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer or to Servicer, (b) redeem, purchase, retire, or
otherwise acquire for value any such ownership or equity interest or security
or (c) set aside or otherwise segregate any amounts for any such purpose;
provided that the Issuer may make, or cause to be made, distributions to the
Servicer, the Owner Trustee, the Trustee and the Certificateholders as
permitted by, and to the extent funds are available for such purpose under,
the Basic Documents. The Issuer will not, directly or indirectly, make
payments to or distributions from the Collection Account except in accordance
with this Indenture and the other Basic Documents.
20
SECTION 3.18 Notice of Events of Default. The Issuer agrees to give
the Trustee and the Rating Agencies prompt written notice of each Event of
Default, any Event of Servicing Termination and each default on the part of
the Seller of its obligations under the Sale and Servicing Agreement.
SECTION 3.19 Further Instruments and Acts. Upon request of the
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.20 Dissolution upon Bankruptcy of the General Partner. The
Trustee shall, upon receipt of the written notice of an Insolvency Event
described in Section 9.2 of the Trust Agreement, give prompt written notice to
the Noteholders of the occurrence of such event. Each Noteholder shall be
entitled to provide the Owner Trustee the instructions described in such
Section 9.2 of the Trust Agreement if such Noteholder disapproves of the
liquidation of the Receivables and the termination of the Issuer.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the
Notes except as to (a) rights or registration of transfer and
exchange, (b) substitution of mutilated, destroyed, lost or stolen
Notes, (c) rights of Noteholders to receive payments of principal
thereof and interest thereon, (d) Sections 3.2, 3.3, 3.4, 3.5, 3.8,
3.10, 3.12, 3.13, 3.15, 3.16 and 3.18, (e) the rights, obligations
and immunities of the Trustee hereunder (including the rights of
the Trustee under Section 6.7 and the obligations of the Trustee
under Sections 4.2 and 4.4) and (f) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them, and the 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, when
(i) either
(A) All Notes theretofore authenticated and
delivered (other than (1) the Notes that have been
destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.5 and (2) the Notes for which
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 Trustee
for cancellation; or
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(B) all Notes not theretofore delivered to the
Trustee for cancellation:
(1) have become due and payable,
(2) will become due and payable at their
respective Final Scheduled Distribution Dates
within one year, or
(3) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the
Issuer,
and the Issuer, in the case of clauses (1), (2) or (3) of
Section 4.1(i)(B), has irrevocably deposited or caused to be
irrevocably deposited with the 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 Trustee for cancellation when due on their
respective Final Scheduled Distribution Dates or Redemption
Date (if the Notes shall have been called for redemption
pursuant to Section 10.1(a)), as the case may be;
(ii) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer; and
(iii) the Issuer has delivered to the Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or the
Trustee) an Independent Certificate from a firm of certified public
accountants, each meeting the applicable requirements of Section
11.1(a) and each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
SECTION 4.2 Application of Trust Money. All moneys deposited with the
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 Trustee may
determine, to the Holders of the particular Notes for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such moneys
need not be segregated from other funds except to the extent required herein
or in the Sale and Servicing Agreement or required by law.
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SECTION 4.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture
with respect to the Notes, all moneys then held by any Paying Agent
other than the Trustee under the provisions of this Indenture with
respect to such Notes shall, upon demand of the Issuer, be paid to
the Trustee to be held and applied according to Section 3.3 and
thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
SECTION 4.4 Duration of the Position of the Trustee for the Benefit of
Certificateholders. Notwithstanding (i)the earlier payment in full of all
principal and interest due to the Noteholders under the terms of the Notes of
each class, (ii)the cancellation of such Notes pursuant to Section 2.8 and
(iii)the discharge of the Trustee's duties hereunder with respect to such Notes,
the Trustee shall continue to act in the capacity of the Trustee hereunder for
the benefit of the Certificateholders and the Trustee, for the benefit of the
Certificateholders, shall comply with its obligations under Sections 5.1, 5.5,
8.1 and 8.2 of the Sale and Servicing Agreement, as appropriate, until such
time as all distributions in respect of Certificate Balance and interest due
to the Certificateholders have been paid in full.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any interest on any Note
when the same becomes due and payable, and such default shall
continue for a period of five days;
(b) default in the payment of the principal of or any
installment of the principal of any Note when the same becomes
due and payable;
(c) default in the observance or performance of any covenant
or agreement of the Issuer made in this Indenture (other than a
covenant or agreement, a default in the observance or performance of
which is elsewhere in this Section specifically dealt with) which
default
23
materially and adversely affects the rights of the Noteholders, and
which default shall continue or not be cured for a period of 30 days
(or for such longer period, not in excess of 90 days, as may be
reasonably necessary to remedy such default; provided that such
default is capable of remedy within 90 days or less and the Servicer
on behalf of the Owner Trustee delivers an Officer's Certificate to
the Trustee to the effect that the Issuer has commenced, or will
promptly commence and diligently pursue, all reasonable efforts to
remedy such default) after there shall have been given, by registered
or certified mail, to the Issuer by the Trustee or to the Issuer and
the Trustee by the Holders of at least 25% of the Outstanding Amount
of the Notes, a written notice specifying such default and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; and
(d) an Insolvency Event shall have occurred for the Issuer.
The Issuer shall deliver to the Trustee, within five days after the
occurrence thereof, written notice in the form of an Officer's Certificate of
any event which with the giving of notice and the lapse of time would become
an Event of Default under clause (c), its status and what action the Issuer is
taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If an
Event of Default should occur and be continuing, then and in every such case
the Trustee or the Holders of the 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
Trustee if given by the Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable.
At any time after such declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article V provided, the
Holders of the Notes representing a majority of the Outstanding Amount of the
Notes, by written notice to the Issuer and the Trustee, may rescind and annul
such declaration and its consequences; provided, that, no such rescission
shall affect any subsequent default or impair any right consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by the Trustee. (a) The Issuer covenants that if (i)
default is made in the payment of any interest on any Note when the
24
same becomes due and payable, and such default continues for a period of five
days, or (ii) default is made in the payment of the principal of or any
installment of the principal of any Note when the same becomes due and
payable, the Issuer will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of the Notes, the whole amount then due and payable on
such Notes for principal and interest, with interest upon the overdue
principal, and, to the extent payment at such rate of interest shall be
legally enforceable, upon overdue installments of interest, at the 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 Trustee
and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the 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 moneys adjudged or decreed to be
payable.
(c) If an Event of Default occurs and is continuing, the 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 Trustee shall deem most effective to protect
and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Trust Estate, proceedings under Title 11 of the United States
Code or any other applicable Federal or state bankruptcy, insolvency or other
similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in the case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such proceedings or
otherwise:
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(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as
a result of negligence, bad faith or willful misconduct) and of the
Noteholders allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Notes in any election of a
trustee, a standby trustee or person performing similar functions in
any such proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Noteholders and of
the Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee or the Holders of the Notes allowed in any
judicial proceedings relative to the Issuer, its creditors and its
property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Noteholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to
the making of payments directly to such Noteholders, to pay to the Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such
proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Trustee without
the possession of any of the Notes or the production thereof in any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express
26
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee, each predecessor Trustee and
their respective agents and attorneys, shall be for the ratable benefit of the
Holders of the Notes.
(g) In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party), the Trustee shall be held to represent
all the Holders of the Notes, and it shall not be necessary to make any
Noteholder a party to any such proceedings.
SECTION 5.4 Remedies; Priorities. (a) If an Event of Default shall
have occurred and be continuing and the Notes have been accelerated under
Section 5.2, the Trustee may do one or more of the following (subject to
Section 5.5):
(i) institute proceedings in its own name and as trustee of
an express trust for the collection of all amounts then payable on
the Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Notes moneys adjudged
due;
(ii) institute proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect
to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the
rights and remedies of the Trustee and the Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or rights
or interest therein, at one or more public or private sales called
and conducted in any manner permitted by law;
provided that the Trustee may not sell or otherwise liquidate the
Trust Estate following an Event of Default, unless (A) the Holders of
100% of the Outstanding Amount of the Notes consent thereto, (B) the
proceeds of such sale or liquidation distributable to the Noteholders
are sufficient to discharge in full all amounts then due and unpaid
upon such Notes for principal and interest, or (C)there has been an
Event of Default described in Section 5.1(a) or (b) and the Trustee
determines that the Trust Estate will not continue to provide
sufficient funds for the payment of principal of and interest on the
Notes as they would have become due if the Notes had not been
declared due and payable, and the Trustee obtains the consent of
Holders of 66-2/3% of the Outstanding Amount of the Notes. In
determining such sufficiency or insufficiency with respect to clause
(B) and (C), the 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
27
feasibility of such proposed action and as to the sufficiency
of the Trust Estate for such purpose.
(b) If the Trustee collects any money or property pursuant to this
Article V, it shall pay out such money or property (and other amounts
including amounts held on deposit in the Reserve Account) held as Collateral
for the benefit of the Noteholders in the following order:
FIRST: to the Trustee for amounts due under Section 6.7; and
SECOND: to the Collection Account for distribution pursuant
to Section 9.1(b) of the Sale and Servicing Agreement.
SECTION 5.5 Optional Preservation of the Receivables. If
the Notes have been declared to be due and payable under Section
5.2 following an Event of Default and such declaration and its
consequences have not been rescinded and annulled, the Trustee may,
but need not, elect to maintain possession of the Trust Estate. It
is the desire of the parties hereto and the Noteholders that there
be at all times sufficient funds for the payment of principal of
and interest on the Notes, and the Trustee shall take such desire
into account when determining whether or not to maintain possession
of the Trust Estate. In determining whether to maintain possession
of the Trust Estate, the Trustee may, but need not, obtain and rely
upon an opinion of an Independent investment banking or accounting
firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Trust Estate for such
purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding
Amount of the Notes have made written request to the Trustee to
institute such proceeding in respect of such Event of Default in its
own name as the Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to it against the costs, expenses
and liabilities to be incurred in complying with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
such proceedings; and
28
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of the 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 the Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Holders of the Notes, each
representing less than a majority of the Outstanding Amount of the Notes, the
Trustee in its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional,
to receive payment of the principal of and interest, if any, on such Note on
or after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies. If the
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 Trustee or to such Noteholder, then and
in every such case the Issuer, the Trustee and the Noteholders
shall, subject to any determination in such Proceeding, be restored
severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the
Noteholders shall continue as through no such proceeding had been
instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Trustee or to the
Noteholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of
the Trustee or any Holder of any Note to exercise any right or remedy accruing
upon any Default or Event of Default shall
29
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 Trustee or to the Noteholders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Holders of a majority of the
Outstanding Amount of the Notes shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee with respect to the Notes or exercising any trust or power conferred
on the Trustee; provided that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture;
(b) subject to the express terms of Section 5.4, any
direction to the Trustee to sell or liquidate the Trust Estate shall
be by the Holders of the Notes representing not less than 100% of the
Outstanding Amount of the Notes;
(c) if the conditions set forth in Section 5.5 have been
satisfied and the Trustee elects to retain the Trust Estate pursuant
to such Section, then any direction to the Trustee by Holders of the
Notes representing less than 100% of the Outstanding Amount of the
Notes to sell or liquidate the Trust Estate shall be of no force and
effect;
(d) the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction;
and
(e) such direction shall be in writing;
provided, further, that, subject to Section 6.1, the Trustee need not take any
action that it determines might involve it in liability or might materially
adversely affect the rights of any Noteholders not consenting to such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of the Notes of not less than a majority of the Outstanding Amount of
the Notes may, on behalf of all such Holders, waive any past Default or Event
of Default and its consequences except a Default (a) in payment of principal
of or interest on any of the Notes or (b) in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of
the Holder of each Note. In the case of any such waiver, the Issuer, the
Trustee and the Holders of the Notes shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereto.
30
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. The Issuer shall give prompt written notice of any waiver to the
Rating Agencies.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or omitted by it
as the 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 shall not apply to (a) any suit instituted by the
Trustee, (b) any suit instituted by any Noteholder or group of Noteholders, in
each case holding in the aggregate more than 10% of the Outstanding Amount of
the Notes, or, (c) any suit instituted by any Noteholder for the enforcement
of the payment of principal of or interest on any Note on or after the
respective due dates expressed in such Note and in this Indenture (or, in the
case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead or in any manner whatsoever,
claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, that
may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
SECTION 5.15 Action on Notes. The Trustee's right to seek and recover
judgment on the Notes or under this Indenture shall not be affected by the
seeking, obtaining or application of any other relief under or with respect to
this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Trustee or the Noteholders shall be impaired by the recovery of any
judgment by the Trustee against the Issuer or by the levy of any execution
under such judgment upon any portion of the Trust Estate or upon any of the
assets of the Issuer.
31
SECTION 5.16 Performance and Enforcement of Certain Obligations. (a)
Promptly following a request from the Trustee to do so and at the
Administrator's expense, the Issuer agrees to take all such lawful action as
the Trustee may request to compel or secure the performance and observance by
the Seller and the Servicer, as applicable, of each of their respective
obligations to the Issuer under or in connection with the Sale 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 Sale and Servicing Agreement to the extent and in
the manner directed by the Trustee, including the transmission of notices of
default on the part of the Seller or the Servicer thereunder and the
institution of legal or administrative actions or proceedings to compel or
secure performance by the Seller or the Servicer of each of their respective
obligations under the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
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 Sale 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
respective obligations to the Issuer thereunder and to give any consent,
request, notice, direction, approval, extension or waiver under the Sale and
Servicing Agreement, and any right of the Issuer to take such action shall be
suspended.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Duties of the Trustee. (a) The Trustee, both prior to and
after the occurrence of an Event of Default, shall undertake to perform such
duties and only such duties as are specifically set forth in this Indenture
and the Sale and Servicing Agreement. If an Event of Default known to the
Trustee has occurred and is continuing, the Trustee shall exercise the rights
and powers vested in it by this Indenture and the Sale and Servicing Agreement
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; provided, however, that if the Trustee shall assume the
duties of the Servicer pursuant to Section 8.2 of the Sale and Servicing
Agreement, the Trustee in performing such duties shall use the degree of skill
and attention customarily exercised by a servicer with respect to automobile
receivables that it services for itself.
The Trustee, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders, or other
32
instruments furnished to the Trustee that shall be specifically required to be
furnished pursuant to any provision of this Indenture or the Sale and
Servicing Agreement, shall examine them to determine whether they conform to
the requirements of this Indenture or the Sale and Servicing Agreement;
provided, however, that the Trustee shall not be responsible for the accuracy
or content of any such resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Servicer to the Trustee
pursuant to this Indenture or the Sale and Servicing Agreement.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own bad faith or wilful malfeasance; provided, however, that
(i) prior to the occurrence of an Event of Default, and after the curing of
all such Events of Default, the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and the Sale
and Servicing Agreement, and no implied covenants or obligations shall be read
into this Indenture or the Sale and Servicing Agreement against the Trustee,
and in the absence of bad faith on its part or manifest error, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture or the Sale and
Servicing Agreement. The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts nor shall the
Trustee be liable with respect to any action it takes or omits to take in good
faith in accordance with this Indenture or in accordance with a direction
received by it pursuant to Section 5.11.
(c) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuer.
(d) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or indemnity satisfactory to it against such risk or
liability is not assured to it, and none of the provisions contained in this
Indenture shall in any event require the Trustee to perform, or be responsible
for the manner of performance of, any of the obligations of the Servicer
(including its obligations as custodian) under this Indenture except during
such time, if any, as the Trustee shall be the successor to, and be vested
with the
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rights, duties, powers and privileges of, the Servicer in accordance with the
terms of the Sale and Servicing Agreement.
(f) The Trustee shall not be charged with knowledge of an Event of
Default until such time as a Responsible Officer shall have actual knowledge
or have received written notice thereof.
(g) Except for actions expressly authorized by this Indenture or,
based upon an Opinion of Counsel, in the best interests of the Noteholders,
the Trustee shall take no action reasonably likely to impair the security
interests created or existing under any Receivable or to impair the value of
any Receivable.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 6.2 Rights of the Trustee. (a) The Trustee may conclusively
rely on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Opinion of Counsel. The Trustee shall not be liable for any action it
takes, suffers or omits to take in good faith in reliance on the Opinion of
Counsel.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee, and the 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. The Trustee shall have no duty to monitor the performance of the
Issuer.
(d) The Trustee shall not be personally liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, that the Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel, and the written 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 written advice or opinion of such
counsel.
(f) [Reserved].
(g) Prior to the occurrence of an Event of Default and after the
curing of all Events of Default that may have occurred, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, or other paper or document, unless
requested in writing to do so by Holders of the Notes evidencing not less than
25% of the Amount Outstanding of the Notes; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses, or
liabilities likely to be incurred by it in the making of such investigation
shall be, in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such cost, expense, or liability or payment
of such expenses as a condition precedent to so proceeding. The reasonable
expense of every such examination shall be paid by the Issuer or by the Servicer
at the direction of the Issuer or, if paid by the Trustee, shall be reimbursed
by the Issuer or by the Servicer at the direction of the Issuer upon demand.
Nothing in this clause (g) shall affect the obligation of the Issuer or the
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Obligors.
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SECTION 6.3 Individual Rights of the Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of the Notes
and may otherwise deal with the Issuer or its Affiliates with the same rights
it would have if it were not the Trustee. Any Paying Agent, the Note
Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4 The Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, shall not be accountable for the Issuer's use of
the proceeds from the Notes, and 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 Trustee's certificate of
authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing
and if it is either actually known or written notice of the existence thereof
has been delivered to a Responsible Officer of the Trustee, the Trustee shall
mail to each Noteholder notice of the Default within 90 days after such
knowledge or notice occurs. Except in the case of a Default in
accordance with the provisions of Section 313(c) of the TIA in payment of
principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), the 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 interest of the Noteholders.
SECTION 6.6 Reports by the Trustee to Holders. The Trustee shall
deliver to each Noteholder such information as may be reasonably required to
enable such Holder to prepare its Federal and state income tax returns.
SECTION 6.7 Compensation and Indemnity. The Issuer shall cause the
Administrator pursuant to the Administration Agreement to pay to the Trustee
from time to time reasonable compensation for its services. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Issuer shall cause the Administrator pursuant to the
Administration Agreement to reimburse the Trustee for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection,
in addition to the compensation for its services. Such expenses shall include
the reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts.
The Issuer shall cause the Administrator pursuant to the Administration
Agreement to indemnify the Trustee against any and all loss, liability or
expense (including the fees of either in-house counsel or outside counsel, but
not both) incurred by it in connection with the administration of this trust
and the performance of its duties hereunder. The Trustee shall notify the
Issuer and the Administrator promptly of any claim for which it may seek
indemnity.
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The Administrator's payment obligations to the Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the Trustee
incurs expenses after the occurrence of a Default specified in Section 5.1(d)
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.
SECTION 6.8 Replacement of the Trustee. (a) The Trustee may give
notice of its intent to resign at any time by so notifying the Issuer. The
Holders of a majority in Outstanding Amount of the Notes may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee. The
Issuer shall remove the Trustee if:
(i) the Trustee fails to comply with Section 6.11;
(ii) the Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of
the Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee gives notice of its intent to resign or is removed
or if a vacancy exists in the office of the Trustee for any reason (the
Trustee in such event being referred to herein as the retiring Trustee), the
Issuer shall promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer and thereupon the
resignation or removal of the Trustee shall become effective, and the
successor Trustee, without any further act, deed or conveyance shall have all
the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Noteholders. The
retiring Trustee shall promptly transfer all property held by it as the
Trustee to the successor Trustee.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee gives notice of its intent to resign or is removed, the
retiring Trustee, the Issuer or the Holders of a majority in Outstanding
Amount of the Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 6.11, any Noteholder
may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) Any resignation or removal of the Trustee and appointment
of a Successor Trustee pursuant to any of the provisions of this
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Section shall not become effective until acceptance of appointment by the
successor Trustee pursuant to Section 6.8(c) and payment of all fees and
expenses owed to the outgoing Trustee.
(g) Notwithstanding the resignation or removal of the Trustee
pursuant to this Section, the Issuer's and the Servicer's obligations under
Section 6.7 shall continue for the benefit of the retiring Trustee. The
Trustee shall not be liable for the acts or omissions of any successor
Trustee.
SECTION 6.9 Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee. The Trustee shall provide the
Issuer and the Rating Agencies prior written notice of any such transaction.
In case at the time such successor or successors by merger,
conversion or consolidation to the 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 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 Trustee may authenticate such Notes either in the
name of any predecessor hereunder or in the name of the successor Trustee; and
in all such cases such certificate of authentication shall have the same full
force as is provided anywhere in the Notes or in this Indenture with respect
to the certificate of authentication of the Trustee.
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Indenture, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any part
of the Issuer may at the time be located, the Trustee shall have the power and
may execute and deliver all instruments to appoint one or more Persons to act
as a co-trustee or co-trustees, or separate trustee or separate trustees, of
all or any part of the Trust, and to vest in such Person or Persons, in such
capacity and for the benefit of the Noteholders, such title to the Trust, or
any part hereof, and, subject to the other provisions of this Section, such
power, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. The Administrator will pay all reasonable fees and
expenses of any co-trustee or co-trustees or separate trustee or separate
trustees. The appointment of any separate trustee or co-trustee shall not
absolve the Trustee of its obligations under this Indenture. 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 the Noteholders of
the appointment of any co-trustee or separate trustee shall be required under
Section 6.8.
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(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Issuer or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of
the Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder,
including acts or omissions of predecessor or successor trustees; and
(iii) the Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. 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 Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee (with a copy given to the Issuer).
(d) Any separate trustee or co-trustee may at any time constitute the
Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Indenture on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA 310(a). The
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Trustee shall have a combined capital and surplus of at least $100,000,000 as
of the last day of the most recent fiscal quarter for such institution and
shall be subject to examination or supervision by federal or state authorities.
The Trustee shall comply with TIA Section 310(b), including the optional
provision permitted by the second sentence of TIA Section 310(b)(9); provided
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in the TIA Section
310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against the Issuer. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 The Issuer To Furnish the Trustee Names and Addresses of
the Noteholders. The Issuer will furnish or cause to be furnished to the
Trustee (a) not more than five days after each Record Date, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Holders as of such Record Date and (b) at such other times as the 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 that so long as the Trustee
is the Note Registrar, no such list shall be required to be furnished.
SECTION 7.2 Preservation of Information; Communications to the
Noteholders. (a) The 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 Trustee as provided in
Section 7.1 and the names and addresses of the Holders of Notes received by
the Trustee in its capacity as the Note Registrar. The Trustee may destroy any
list furnished to it as provided in such Section 7.1 upon receipt of a new
list so furnished.
(b) The Noteholders may communicate pursuant to TIA 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Trustee and the Note Registrar shall have
the protection of TIA Section 312(c).
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SECTION 7.3 Reports by the Issuer. (a) The Issuer shall:
(i) file with the Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the
Issuer may be required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act;
(ii) file with the Trustee and the Commission in accordance
with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with
respect to compliance by the Issuer with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(iii) supply to the Trustee (and the Trustee shall transmit
by mail to all Noteholders described in TIA 313(c)) such summaries of
any information, documents and reports required to be filed by the
Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a) as may
be required by rules and regulations prescribed from time to time by
the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year
of the Issuer shall end on December 31 of each year.
SECTION 7.4 Reports by the Trustee. If required by TIA 313(a), within
60 days after each March 31, beginning with March 31, 199_, the Trustee shall
mail to each Noteholder as required by TIA Section 313(c) a brief report dated
as of such date that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Section 313(b). A copy of each report at the time of its
mailing to Noteholders shall be filed by the Trustee with the Commission and
each stock exchange, if any, on which the Notes are listed. The Issuer shall
notify the Trustee if and when the Notes are listed on any stock exchange. On
each Distribution Date, the Trustee shall include with each payment to each
Noteholder a copy of the statement for the related Collection Period provided to
the Trustee pursuant to Section 5.7 of the Sale and Servicing Agreement.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise provided herein,
the Trustee may demand payment or delivery of, and shall receive and collect,
directly and without intervention or assistance of any fiscal agent or other
intermediary, all money and other property payable to or receivable by the
Trustee pursuant to this Indenture. The Trustee shall apply all such money
received by it as provided in this Indenture and the Sale and Servicing
40
Agreement. Except as otherwise 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 Trustee may take such action
as may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings. Any such action shall
be without prejudice to any right to claim a Default or Event of Default under
this Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.2 Trust Accounts. (a) On or prior to the Closing Date, the
Issuer shall cause the Servicer to establish and maintain, in the name of the
Trustee, for the benefit of the Noteholders and the Certificateholders, the
Trust Accounts as provided in Section 5.1 of the Sale and Servicing Agreement.
(b) Before each Distribution Date, the Servicer and the
Seller are required to deposit the Total Distribution Amount with
respect to the preceding Collection Period in the Collection Account
pursuant to Sections 5.2 and 5.4 of the Sale and Servicing Agreement.
Before each Distribution Date, the Trustee shall withdraw the Reserve
Account Transfer Amount for such Distribution Date from the Reserve
Account and deposit it in the Collection Account in accordance with
Section 5.5(b) of the Sale and Servicing Agreement. On or before each
Distribution Date, the Trustee or the Paying Agent on behalf of the
Trustee shall transfer the Noteholders' Distributable Amount for such
Distribution Date from the Collection Account to the Note
Distribution Account in accordance with Section 5.5 of the Sale and
Servicing Agreement.
(c) Not later than 12:00 noon, New York City time, on each
Distribution Date, the Trustee or the Paying Agent on behalf of the
Trustee shall distribute all amounts on deposit in the Note
Distribution Account to Noteholders to the extent of amounts due and
unpaid on the Notes for principal and interest in the following
amounts and in the following order of priority:
(i) to accrued and unpaid interest on the Notes;
provided that if there are not sufficient funds in the Note
Distribution Account to pay the entire amount of accrued and
unpaid interest then due on the Notes, the amount in the
Note Distribution Account shall be applied to the payment of
such interest on the Notes pro rata on the basis of the
total such interest due on the Notes;
(ii) unless otherwise provided in clause (iv)
below, to the Holders of the Class A-1 Notes until the
Outstanding Amount of the Class A-1 Notes is reduced to
zero;
(iii) unless otherwise provided in clause (iv)
below, to the Holders of the Class A-2 Notes until the
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Outstanding Amount of the Class A-2 Notes is reduced to
zero; and
(iv) if the Notes have been declared immediately
due and payable as provided in Section 5.2, any amounts
remaining in the Note Distribution Account after the
applications described in Section 8.2(c)(i) 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.
SECTION 8.3 General Provisions Regarding Accounts. (a) In accordance
with Section 5.1(b) of the Sale and Servicing Agreement, all funds in the
Trust Accounts shall be invested in Permitted Investments upon written
direction of the Servicer. All income or other gain from investments of moneys
deposited in the Trust Accounts shall be paid to the Servicer, and any loss
resulting from such investments shall be charged to such account. The Servicer
will not direct the Trustee to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security interest
Granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Trustee to
make any such investment or sale, if requested by the Trustee, the Servicer
shall deliver to the Trustee an Opinion of Counsel, acceptable to the Trustee,
to such effect.
(b) Subject to Section 6.1(b), the Trustee shall not in any way be
held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any loss on any Permitted Investment included therein except
for losses attributable to the Trustee's failure to make payments on such
Permitted Investments issued by the Trustee, in its commercial capacity as
principal obligor and not as trustee, in accordance with their terms.
(c) If (i) the Servicer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Trustee by
11:00 a.m. New York City time (or such other time as may be agreed by the
Servicer and the 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, 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 Trustee shall, to the fullest extent practicable, invest
and reinvest funds in the Trust Accounts in one or more Permitted Investments.
The Trustee shall not be liable for losses in respect of such investments in
Permitted Investments that comply with the requirements of the Basic
Documents.
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SECTION 8.4 Release of Trust Estate. (a) Subject to the payment of
its fees and expenses pursuant to Section 6.7, the 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 Trustee's
interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Trustee as provided in this Article VIII shall be
bound to ascertain the Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any moneys.
(b) The Trustee shall, at such time as there are no Notes Outstanding,
and all sums due the 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 Note Distribution Account. The Trustee shall
(i)release any remaining portion of the Trust Estate that secures the
Certificates from the lien of this Indenture and (ii)release to the Issuer
or any other Person entitled thereto any funds then on deposit in the Reserve
Account or the Collection Account only to such time as (x)there are no Notes
Outstanding, (y)all payments in respect of Certificate Balance and interest due
to the Certificateholders have been paid in full and (z)all sums due to the
Trustee pursuant to Section 6.7 have been paid. The 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 Sections 314(c) and 314(d)(1) meeting the applicable
requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The 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
Trustee may also require as a condition of such action, an Opinion of Counsel,
in form and substance satisfactory to the Trustee, stating the legal effect of
any such action, outlining the steps required to complete the same, and
concluding that all such action will not materially and adversely impair the
security for the Notes or the rights of the Noteholders; 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 Trustee in connection with
any such action.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with prior notice to
the Rating Agencies by the Issuer, when authorized by the Issuer Request, 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 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 Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and
the assumption by any such successor of the covenants of issuer
herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of the Notes, or to surrender any right
or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental
indenture; provided that such action shall not materially and
adversely affect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the
Notes and to add to or change any of the provisions of this Indenture
as shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA.
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The Trustee is hereby authorized to join in the execution of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Trustee, when authorized by an Issuer Order,
may, also without the consent of any of the Holders of the Notes but with
prior notice to the Rating Agencies by the Issuer, as evidenced to the
Trustee, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Holders of the Notes under this Indenture; provided that such
action shall not, as evidenced by an Opinion of Counsel, materially and
adversely affect the interests of any Noteholder.
SECTION 9.2 Supplemental Indentures with Consent of the Noteholders.
The Issuer and the Trustee, when authorized by the Issuer, also may, with
prior notice to the Rating Agencies and with the consent of the Holders of a
majority of the Outstanding Amount of the Notes, by Act of such Holders
delivered to the Issuer and the Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing
in any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(i) change the date of payment of any installment of
principal of or interest on any Note, or reduce the principal amount
thereof, the interest rate thereon or the Redemption Price with
respect thereto, change the provision of this Indenture relating to
the application of collections on, or the proceeds of the sale of,
the Trust Estate to payment of principal of or interest on the Notes,
or change any place of payment where, or the coin or currency in
which, any Note or the interest thereon is payable, or impair the
right to institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor, as
provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof (or, in the case
of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences
provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
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(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Trustee to sell or liquidate the Trust
Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to
increase any percentage specified herein or to provide that certain
additional provisions of this Indenture or any of the other Basic
Documents cannot be modified or waived without the consent of the
Holder of each Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Distribution Date
(including the calculation of any of the individual components of
such calculation) or to affect the rights of the Holders of the Notes
to the benefit of any provisions for the mandatory redemption of the
Notes contained herein; or
(vii) permit the creation of any lien ranking prior to or on
a parity with the lien of this Indenture with respect to any part of
the Trust Estate or, except as otherwise permitted or contemplated
herein or in the Basic Documents, terminate the lien of this
Indenture on any property at any time subject hereto or deprive the
Holder of any Note of the security provided by the lien of this
Indenture.
The Trustee may determine whether or not any Notes would be affected
by any supplemental indenture and any such determination shall be conclusive
upon the Holders of all Notes, whether theretofore or thereafter authenticated
and delivered hereunder. The Trustee shall not be liable for any such
determination made in good faith.
It shall not be necessary for any Noteholders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Noteholders shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to this Section, the Trustee shall mail to the
Holders of the Notes to which such amendment or supplemental indenture relates
a notice setting forth in general terms the substance of such supplemental
indenture. Any failure of the Trustee to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 9.3 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,
46
obligations, duties, liabilities and immunities under this Indenture of the
Trustee, the Issuer and the Holders of the Notes shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be an be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.4 Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall comply in all respects with the Trust Indenture Act.
SECTION 9.5 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 Trustee shall, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Issuer or the Trustee shall so determine, new
Notes so modified as to conform, in the opinion of the Trustee and the Issuer,
to any such supplemental indenture may be prepared and executed by the Issuer
and authenticated and delivered by the Trustee in exchange for Outstanding
Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. (a) The Class A-2 Notes are subject to
redemption in whole, but not in part, on any Distribution Date upon the
exercise by the Servicer of its option to purchase the Receivables pursuant to
Section 9.1(a) of the Sale and Servicing Agreement. The Notes shall be
redeemed for the Redemption Price; provided that the Issuer has available
funds sufficient to pay the Redemption Price. The Servicer or the Issuer shall
furnish notice of such election to the Trustee not later than the 25th day of
the month prior to the Redemption Date and the Issuer shall deposit with the
Trustee in the Note Distribution Account the Redemption Price of the Class A-2
Notes to be redeemed whereupon all such Class A-2 Notes shall be due and
payable on the Redemption Date.
(b) If the assets of the Issuer are sold pursuant to Section 9.2 of
the Trust Agreement, all amounts deposited in the Note Distribution Account
pursuant to Section 9.1(b) of the Sale and Servicing Agreement shall be paid
to the Noteholders up to the Outstanding Amount of the Notes together with all
accrued and unpaid interest thereon. If amounts are to be paid to the
Noteholders pursuant to this Section, the Servicer or the Issuer shall, to the
extent practicable, furnish notice of such event to the Trustee not later than
25 days prior to the Redemption Date whereupon all such amounts shall be
payable on the Redemption Date.
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SECTION 10.2 Form of Redemption Notice. (a) Notice of redemption
under Section 10.1(a) shall be given by the Trustee by facsimile or by
first-class mail, postage prepaid, transmitted or mailed prior to the
applicable Redemption Date to each Holder of Class A-2 Notes, as of the close
of business on the Record Date preceding the applicable Redemption Date, at
such Holder's address appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable and that payments shall be made
only upon presentation and surrender of such Class A-2 Notes and the
place where such Class A-2 Notes are to be surrendered for payment of
the Redemption Price (which shall be the office or agency to be
maintained as provided in Section 3.2); and
(iv) that interest on the Class A-2 Notes shall cease to
accrue on the Redemption Date.
Notice of redemption of the Class A-2 Notes shall be given by the
Trustee in the name and at the expense of the Issuer. Failure to give notice
of redemption, or any defect therein, to any Holder of any Class A-2 Notes
shall not impair or affect the validity of the redemption of any other Class
A-2 Note.
(b) Prior notice of redemption under Section 10.1(b) is not
required to be given to Noteholders.
SECTION 10.3 Notes Payable on Redemption Date. The Notes to
be redeemed shall, following notice of redemption as required by
Section 10.2 (in the case of redemption pursuant to Section
10.1(a)), on the Redemption Date become due and payable at the
Redemption Price and (unless the Issuer shall default in the
payment of the Redemption Price) no interest shall accrue on the
Redemption Price for any period after the date to which accrued
interest is calculated for purposes of calculating the Redemption
Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc. (a) Upon any
application or request by the Issuer to the Trustee to take any action under
any provision of this Indenture, the Issuer shall furnish to the Trustee (i)
an Officer's Certificate stating that all conditions precedent, if any,
provided for in this
48
Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, and (iii) (if required
by the TIA) an Independent Certificate from a firm of certified public
accountants meeting the applicable requirements of this Section, except that,
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation
as is necessary to enable such signatory to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Trustee 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 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) Whenever the Issuer is required to furnish to the
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (i), the
Issuer shall also deliver to the 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
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) and this clause (ii),
is 10% or more of the Outstanding Amount of the Notes,
49
but such a certificate need not be furnished with respect to any
securities so deposited, if the fair value thereof to the Issuer as
set forth in the related Officer's Certificate is less than $25,000
or less than one percent of the Outstanding Amount of the Notes.
(iii) Other than with respect to the release of any
Repurchased Receivables or Defaulted Receivables, whenever any
property or securities are to be released from the lien of this
Indenture, the Issuer shall also furnish to the Trustee an Officer's
Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 90 days of such
release) of the property or securities proposed to be released and
stating that in the opinion of such person the proposed release will
not impair the security under this Indenture in contravention of the
provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (iii), the
Issuer shall also furnish to the 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 Repurchased
Receivables and Defaulted Receivables, or securities released from
the lien of this Indenture since the commencement of the then current
calendar year, as set forth in the certificates required by clause
(iii) and this clause (iv), equals 10% or more of the Outstanding
Amount of the Notes, but such certificate need not be furnished in
the case of any release of property or securities if the fair value
thereof as set forth in the related Officer's Certificate is less
than $25,000 or less than one percent of the then Outstanding Amount
of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of
this Section, the Issuer may (A) collect, liquidate, sell or
otherwise dispose of the Receivables as and to the extent permitted
or required by the Basic Documents and (B) make cash payments out of
the Trust Accounts as and to the extent permitted or required by the
Basic Documents.
SECTION 11.2 Form of Documents Delivered to the Trustee. In
any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person my certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon
50
a certificate to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate
or opinion is based are erroneous. Any such certificate of an Authorized
Officer or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Servicer, the Seller or the Issuer, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller or the Issuer, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Trustee, it is provided that the Issuer shall
deliver any document as a condition of the granting of such application, or as
evidence of the Issuer's compliance with any term hereof, it is intended that
the truth and accuracy, at the time of 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 to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however,
be construed to affect the Trustee's right to rely upon the truth and accuracy
of any statement or opinion contained in any such document as provided in
Article VI.
SECTION 11.3 Actions of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by the
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by an
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, when required, to the Issuer or
the Servicer. 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 conclusive in favor of the Trustee, the Issuer and the Servicer,
if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any Noteholder of
any such instrument or writing may be proved in any reasonable
manner which the Trustee deems sufficient.
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(c) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Noteholder shall bind every Holder of every Note
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, or omitted to be done, by the
Trustee, the Issuer or the Servicer in reliance thereon, whether or not
notation of such action is made upon such Note.
(d) The Trustee may require such additional proof of any matter
referred to in this Section 11.3 as it shall deem necessary.
SECTION 11.4 Notices, etc., to the Trustee, the Issuer, and Rating
Agencies. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to or filed with:
(a) The Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if personally delivered or
mailed certified mail, return receipt requested and shall be deemed
to have been duly given upon receipt by the Trustee at its Corporate
Trust Office, or
(b) The Issuer by the Trustee or any Noteholder shall be
sufficient for every purpose hereunder if personally delivered or
mailed certified mail, return receipt to the Issuer addressed to:
Chase Manhattan Auto Owner Trust 199_-_, in care of [Owner Trustee]
or at any other address previously furnished in writing to the
Trustee by the Issuer. The Issuer shall promptly transmit any notice
received by it from the Noteholders to the Trustee.
Notices required to be given to the Rating Agencies by the Issuer,
the Trustee or the Owner Trustee shall be in writing, personally delivered or
mailed certified mail, return receipt requested to (i) in the case of Moody's,
at the following address: Moody's Investors Service, Inc., 99 Church Street,
New York, New York 10004 and (ii) in the case of S&P, at the following
address: Standard & Poor's Ratings Group, 26 Broadway (15th Floor), New York,
New York 10004, Attention of Asset Backed Surveillance Department; or as to
each of the foregoing, at such other address as shall be designated by written
notice to the other parties.
SECTION 11.5 Notices to Noteholders; Waiver. Where this
Indenture provides for notice to Noteholders of any event, such
notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage
prepaid to each Noteholder affected by such event, at his address
as it appears on the Note Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given
by mail, neither the failure to mail such notice nor any defect in
any notice so mailed to any particular Noteholder shall affect the
sufficiency of such notice with respect to other Noteholders, and
52
any notice that is mailed in the manner herein provided shall conclusively be
presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Trustee but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to the 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 Trustee shall be deemed to
be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other right or obligations
created hereunder, and shall not under any circumstance constitute a Default
or Event of Default.
SECTION 11.6 Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the
Issuer may enter into any agreement with any Holder of a Note providing for a
method of payment, or notice by the Trustee or any Paying Agent to such Holder
that is different from the methods provided for in this Indenture for such
payments or notices, provided that such methods are reasonable and consented
to by the Trustee (which consent shall not be unreasonably withheld). The
Issuer will furnish to the trustee a copy of each such agreement, and the
Trustee will cause payments to be made and notices to be given in accordance
with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind
53
its successors and assigns. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 11.10 Separability. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not be affected
or impaired thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Noteholders and (only
to the extent expressly provided herein) the Certificateholders, and any other
party secured hereunder, and any other person with an ownership interest in
any part of the Trust Estate, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 11.12 Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest
shall accrue for the period from and after any such nominal date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Trustee or any other counsel reasonably
acceptable to the 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 Trustee
under this Indenture or to satisfy any provision of the TIA.
SECTION 11.16 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director, employee or agent of the
54
Trustee or the Owner Trustee in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the 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 installment or call owing to
such entity. For all purposes of this Indenture, in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII and of the Trust Agreement.
SECTION 11.17 No Petition. The Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they will not at any time institute against the Issuer or the General
Partner or join in any institution against the General Partner or the Issuer
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the other Basic Documents.
SECTION 11.18 Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the 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 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 Trustee may reasonably determine that such disclosure
is consistent with its Obligations hereunder.
55
IN WITNESS WHEREOF, the Issuer and the 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.
THE CHASE MANHATTAN AUTO
OWNER TRUST 199_,
By:______________________________
Name:
Title:
________________________________,
not in its individual capacity
but solely as Trustee
By:______________________________
Name:
Title:
56
EXHIBIT A
SCHEDULE OF RECEIVABLES
EXHIBIT B
FORM OF A-1 NOTES
REGISTERED $_________________3
No. R-____ CUSIP NO. __________
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC). ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF
THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
CHASE MANHATTAN AUTO OWNER TRUST 199_-_
____% CLASS A-1 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 199_-_, a trust organized and
existing under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of __________ DOLLARS ($__________),
partially payable on each Distribution Date in an amount equal to the result
obtained by multiplying (i) a fraction, the numerator of which is $__________
and the denominator of which is $__________ by (ii) the aggregate amount, if
any, payable from the Note Distribution Account in respect of principal on the
Class A-1 Notes pursuant to Section 3.1 of the Indenture; provided that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the __________ Distribution Date and the Redemption Date, if any,
pursuant to Section 10.1(a) of the Indenture. The Issuer will 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), subject to certain limitations contained in Sections 2.7,
3.1 and 8.2 of the Indenture. Interest on this Note will accrue for each
Distribution Date from the most recent Distribution Date
________
3 Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
on which interest has been paid to but excluding the then current Distribution
Date or, if no interest has yet been paid, from __________, 199_. Interest
will be computed on the basis of actual days elapsed in a 360-day year. Such
principal of and interest on this Note shall be paid in the manner specified
in the Indenture.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as 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 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.
Dated: __________, 199_
CHASE MANHATTAN AUTO OWNER TRUST
199_._
By:__________________________________
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement
By:__________________________________
Name:
Title:
B-2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within mentioned Indenture.
Dated: __________, 199_
_______________________________,
not in its individual capacity
but solely as Indenture Trustee
By:_____________________________
Authorized Signatory
B-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its ____% Class A-1 Asset Backed Notes (herein called the "Class
A-1 Notes" or the "Notes"), all issued under an Indenture dated as of _______,
199_ (such Indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and , not in its individual capacity but solely
as trustee (the "Indenture Trustee"), which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are not otherwise defined herein and that are
defined in the Indenture shall have the meanings assigned to them in or pursuant
to the Indenture.
The Notes and the Class A-2 Notes are and will be equally and ratably
secured by the collateral pledges as security therefor as provided in the
Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class A-1 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case
of a Note Owner, a beneficial interest in the Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Trustee on the Notes or
under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Trustee or the Owner Trustee
in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Owner Trustee or the
Trustee or of any successor or assign of the Trustee or the Owner Trustee in
its individual capacity, except as any such Person may have expressly agreed
(it being understood that the 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 installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the Noteholders and the
Note Owners that, for purposes of Federal and State income tax and any other
tax measured in whole or in part by income, the Notes will qualify as
indebtedness of the Issuer. The Noteholders, by acceptance of a Note, agree to
treat, and to take no action inconsistent with the treatment of, the Notes for
such tax purposes as indebtedness of the Issuer.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that they will not at any time institute against the General Partner or the
Issuer or join in any institution against General Partner or Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or State
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the other Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither ________________________________, in
its individual capacity, any owner of a beneficial interest in the Issuer, nor
any of their respective partners, beneficiaries, agents, officers, directors,
employees, successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest
on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and
indemnifications have been made by the Trustee for the sole purposes of
binding the interests of the Trustee in the assets of the Issuer. The Holder
of this Note by the acceptance hereof agrees that, except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided that nothing contained herein
shall be taken to prevent recourse to, and enforcement against, the assets of
the Issuer for any and all liabilities, obligations and undertakings contained
in the Indenture or in this Note.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
- ------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
- ------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____, attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:__________ ___________________________________****
Signature Guaranteed:
______
**** NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note
in every particular without alteration, enlargement or any change
whatsoever.
EXHIBIT C
FORM OF A-2 NOTES
REGISTERED $_________________1
No. R-____ CUSIP NO. __________
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF
THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACT
HEREOF.
CHASE MANHATTAN AUTO OWNER TRUST 199__
__% CLASS A-2 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 199__, a trust organized and
existing under the laws of the State of Delaware (including any successor, the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of ______________________ DOLLARS
($____________), partially payable on each Distribution Date in an amount
equal to the result obtained by multiplying (i) a fraction, the numerator of
which is $_____________ and the denominator of which is $____________ by the
(ii) the aggregate amount, if any, payable from the Note Distribution Account
in respect of principal on the Class A-1 Notes pursuant to Section 3.1 of the
Indenture; provided that the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the _________________ Distribution Date
and the Redemption Date, if any, pursuant to Section 10.1(a) of the Indenture.
No payments of principal of the Class A-2 Notes will be made until the
principal of the Class A-1 Notes has been paid in full. The Issuer will 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), subject to certain limitations contained in Sections 2.7,
3.1 and 8.2 of the Indenture. Interest
______
1 Denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
on this Note will accrue for each Distribution Date from the most recent
Distribution Date on which interest has been paid to but excluding the then
current Distribution Date or, if no interest has yet been paid, from
____________, 199__. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Note shall be
paid in the manner specified in the Indenture.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America as 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 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.
Dated: ____________________, 199__
CHASE MANHATTAN AUTO OWNER TRUST 199__
By______________________________________
, not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By:_____________________________________
Name:
Title:
C-2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Dated: ____________________, 199__
______________________________________,
not in its individual capacity, but
solely as Indenture Trustee
By:___________________________________
Authorized Signatory
C-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its _____% Class A-2 Asset Backed Notes (herein called the
"Class A-2 Notes" or the "Notes"), all issued under an Indenture dated as of
199__ (such Indenture, as supplemented or amended, is herein called the
"Indenture"), between the Issuer and ______________________, not in its
individual capacity but solely as trustee (the "Indenture Trustee"), which
term includes any successor Indenture Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights and obligations thereunder the of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Notes are
subject to all terms of the Indenture. All terms used in this Note that are
not otherwise defined herein and that are defined in the Indenture shall have
the meanings assigned to them in or pursuant to the Indenture.
The Notes and the Class A-1 Notes are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture.
The Issuer shall pay interest on overdue installments of interest at
the Class A-2 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in the case
of a Note Owner, a beneficial interest in the Note, covenants and agrees that
no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Trustee on the Notes or
under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Trustee or the Owner Trustee
in its individual capacity, (ii) any owner of a beneficial interest in Issuer
or (iii) any partner, owner, beneficiary, agent, officer, director, employee
or agent of the Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Trustee or the Owner
Trustee or of any successor or assign of the Trustee or the Owner Trustee in
its individual capacity, except that any such Person may have expressly agreed
(it being understood that the 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 installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the Noteholders and the
Note Owners that, for purposes of Federal and State income tax and any other
tax measured in whole or in part by income, the Notes will qualify as
indebtedness of the Issuer. The Noteholders, by acceptance of a Note, agree to
treat, and to take no action
inconsistent with the treatment of, the Notes for such tax purposes
as indebtedness of the Issuer.
Each Noteholder or Note Owner, by acceptance of a Note, or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that they will not at any time institute against the General Partner or the
Issuer, or join in any institution against the General Partner or Issuer of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the other Basic Documents.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, neither ____________________________________,
in its individual capacity, any owner of a beneficial interest in the Issuer,
nor any of their respective partners, beneficiaries, agents, officers,
directors, employees, successors or assigns shall be personally liable for,
nor shall recourse be had to any of them for, the payment of principal of or
interest on, or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the Indenture, it
being expressly understood that said covenants, obligations and
indemnifications have been made by the Trustee for the sole purpose of binding
the interests of the Trustee in the assets of the Issuer. The Holder of this
Note by the acceptance hereof agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency,
loss or claim therefrom; provided that nothing contained herein shall be taken
to prevent recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in the
Indenture or in this Note.
C-2
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
_________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
_________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _______________________________, attorney, to transfer said Note
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated: ______________________ _____________________________*
Signature Guaranteed:
____________________________
________
* NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note
in every particular without alteration, enlargement or any change
whatsoever.
EXHIBIT D
Note Depository Agreement