EXHIBIT 4.2(1)
--------------
- --------------------------------------------------------------------------------
CHASE MANHATTAN AUTO OWNER TRUST 1998-A
Class A-1 5.549% Asset Backed Notes
Class A-2 5.679% Asset Backed Notes
Class A-3 5.700% Asset Backed Notes
Class A-4 5.800% Asset Backed Notes
-------------------
INDENTURE
Dated as of February 1, 1998
-------------------
Norwest Bank Minnesota, National Association
as Indenture Trustee
- --------------------------------------------------------------------------------
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....................... 4
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............................................ 9
SECTION 2.13 Authenticating Agent........................................ 10
SECTION 2.14 Appointment of Paying Agent................................. 11
ARTICLE III
COVENANTS
SECTION 3.1 Payment of Principal and Interest............................ 12
SECTION 3.2 Maintenance of Office or Agency.............................. 13
SECTION 3.3 Money for Payments To Be Held in Trust....................... 13
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
i
Page
----
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........................................... 19
SECTION 3.13 No Borrowing................................................ 19
SECTION 3.14 Servicer's Obligations...................................... 19
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities........... 19
SECTION 3.16 Capital Expenditures........................................ 20
SECTION 3.17 Restricted Payments......................................... 20
SECTION 3.18 Notice of Events of Default................................. 20
SECTION 3.19 Further Instruments and Acts................................ 20
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture...................... 20
SECTION 4.2 Application of Trust Money................................... 21
SECTION 4.3 Repayment of Moneys Held by Paying Agent..................... 22
SECTION 4.4 Duration of the Position of the Indenture Trustee for
the Benefit of Certificateholders.................................... 22
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default............................................ 22
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment........... 23
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by the Indenture Trustee............................................. 23
SECTION 5.4 Remedies; Priorities......................................... 25
SECTION 5.5 Optional Preservation of the Receivables..................... 26
SECTION 5.6 Limitation of Suits.......................................... 27
SECTION 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest............................................... 27
SECTION 5.8 Restoration of Rights and Remedies........................... 28
SECTION 5.9 Rights and Remedies Cumulative............................... 28
SECTION 5.10 Delay or Omission Not a Waiver.............................. 28
SECTION 5.11 Control by Noteholders...................................... 28
SECTION 5.12 Waiver of Past Defaults..................................... 29
SECTION 5.13 Undertaking for Costs....................................... 29
SECTION 5.14 Waiver of Stay or Extension Laws............................ 29
SECTION 5.15 Action on Notes............................................. 30
SECTION 5.16 Performance and Enforcement of Certain Obligations.......... 30
ARTICLE VI
ii
Page
----
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of the Indenture Trustee.............................. 30
SECTION 6.2 Rights of the Indenture Trustee.............................. 32
SECTION 6.3 Individual Rights of the Indenture Trustee................... 33
SECTION 6.4 The Indenture Trustee's Disclaimer........................... 33
SECTION 6.5 Notice of Defaults........................................... 33
SECTION 6.6 Reports by the Indenture Trustee to Holders.................. 34
SECTION 6.7 Compensation and Indemnity................................... 34
SECTION 6.8 Replacement of the Indenture Trustee......................... 34
SECTION 6.9 Successor Indenture Trustee by Merger........................ 35
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee.................................................... 36
SECTION 6.11 Eligibility; Disqualification............................... 37
SECTION 6.12 Preferential Collection of Claims Against the Issuer........ 37
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 The Issuer To Furnish the Indenture Trustee Names and
Addresses of the Noteholders......................................... 37
SECTION 7.2 Preservation of Information; Communications to the
Noteholders.......................................................... 38
SECTION 7.3 Reports by the Issuer........................................ 38
SECTION 7.4 Reports by the Indenture Trustee............................. 38
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money.......................................... 39
SECTION 8.2 Trust Accounts............................................... 39
SECTION 8.3 General Provisions Regarding Accounts........................ 40
SECTION 8.4 Release of Trust Estate...................................... 41
SECTION 8.5 Opinion of Counsel........................................... 42
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders....... 42
SECTION 9.2 Supplemental Indentures with Consent of the Noteholders...... 43
SECTION 9.3 Effect of Supplemental Indenture............................. 45
SECTION 9.4 Conformity with Trust Indenture Act.......................... 45
iii
Page
----
SECTION 9.5 Reference in Notes to Supplemental Indentures................ 45
SECTION 9.6 Execution of Supplemental Indentures......................... 45
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption.................................................. 46
SECTION 10.2 Form of Redemption Notice................................... 46
SECTION 10.3 Notes Payable on Redemption Date............................ 46
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc................... 47
SECTION 11.2 Form of Documents Delivered to the Indenture Trustee........ 48
SECTION 11.3 Actions of Noteholders...................................... 49
SECTION 11.4 Notices, etc., to the Indenture Trustee, the Issuer,
and Rating Agencies.................................................. 50
SECTION 11.5 Notices to Noteholders; Waiver.............................. 50
SECTION 11.6 Alternate Payment and Notice Provisions..................... 51
SECTION 11.7 Conflict with Trust Indenture Act........................... 51
SECTION 11.8 Effect of Headings and Table of Contents.................... 51
SECTION 11.9 Successors and Assigns...................................... 51
SECTION 11.10 Separability............................................... 51
SECTION 11.11 Benefits of Indenture...................................... 52
SECTION 11.12 Legal Holidays............................................. 52
SECTION 11.13 GOVERNING LAW.............................................. 52
SECTION 11.14 Counterparts............................................... 52
SECTION 11.15 Recording of Indenture..................................... 52
SECTION 11.16 Trust Obligation........................................... 52
SECTION 11.17 No Petition................................................ 53
SECTION 11.18 Inspection................................................. 53
Exhibit A - Schedule of Receivables
Exhibit B - Form of Class A-1 Note
Exhibit C - Form of Class A-2 Note
Exhibit D - Form of Class A-3 Note
Exhibit E - Form of Class A-4 Note
Exhibit F - Form of 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
- --------
(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.
v
(c) ............................................... N.A.
317 (a)(1) ............................................... 5.3
(a)(2) ............................................... 5.3
(b) ............................................... 3.3
318 (a) ............................................... 11.7
vi
INDENTURE dated as of February 1, 1998, between CHASE
MANHATTAN AUTO OWNER TRUST 1998-A, a Delaware business trust (the "Issuer"),
and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking
association, solely as trustee and not in its individual capacity (the
"Indenture Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Issuer's
Class A-1 5.549% Asset Backed Notes (the "Class A-1 Notes"), Class A-2 5.679%
Asset Backed Notes (the "Class A-2 Notes"), Class A- 3 5.700% Asset Backed
Notes (the "Class A-3 Notes") and Class A-4 5.800% Asset Backed Notes (the
"Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2 Notes
and the Class A-3 Notes, the "Notes"):
GRANTING CLAUSE
---------------
The Issuer hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture 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 Exhibit A hereto, which is incorporated by reference herein, all
proceeds thereof and all amounts and monies received thereon on or 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 4.6 or 9.1 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 (including without
limitation the Reserve Account Initial Deposit), and in all investments and
proceeds thereof (but excluding all investment income on funds on deposit in
the Collection Account); (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, contract rights, 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 Indenture Trustee, as trustee on behalf of the Holders
of the Notes, acknowledges such Grant, accepts the trusts under this Indenture
in accordance with the
2
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 February 1, 1998, between the Issuer and Chase Manhattan Bank USA,
National Association, as Seller and Servicer (the "Sale and Servicing
Agreement").
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
Indenture Trustee.
"obligor" on the indenture securities means the Issuer and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by
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, Subsections and Exhibits are references to Articles,
Sections, Subsections and Exhibits contained in or attached
3
to this Indenture unless otherwise specified, and each such Exhibit is part of
the terms of this Indenture.
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, other than the calculation of interest accrued on the
Class A-1 Notes at the Class A-1 Interest Rate, which will be calculated on
the basis of a 360-day year based upon the actual number of days elapsed which
will be 25 days for the March 1999 Distribution Date for the Class A-1 Notes.
ARTICLE II
THE NOTES
SECTION 2.1 Form. The Class A-1 Notes, the Class A-2 Notes,
the Class A- 3 Notes and the Class A-4 Notes, in each case together with the
Indenture Trustee's or Authenticating Agent's certificate of authentication,
shall be in substantially the forms set forth in Exhibits B, C, D and E,
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 to be
appropriate 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, if applicable, for one Note
representing a residual portion 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 date of authentication and delivery of such
Notes or did not hold such offices at such date. 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 Indenture
Trustee or an Authenticating Agent 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, C, D
and E 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.
4
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 Issuer. The signature of
any such Authorized Officer on the Notes may be manual or facsimile.
The Indenture Trustee shall, upon written order of the
Seller, authenticate and deliver Class A-1 Notes for original issue in an
aggregate principal amount of $238,000,000, Class A-2 Notes for original issue
in an aggregate principal amount of $204,000,000, Class A-3 Notes for original
issue in the aggregate principal amount of $294,000,000 and Class A-4 Notes
for original issue in the aggregate principal amount of $246,000,000. The
respective aggregate principal amount of Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes and Class A-4 Notes outstanding at any time may not exceed
such amounts, except as provided in Section 2.5.
SECTION 2.3 Temporary Notes. Pending the preparation of
Definitive Notes, the Issuer may execute, and at the direction of the Issuer,
the Indenture Trustee shall authenticate and deliver, temporary Notes which
are printed, lithographed, typewritten, mimeographed or otherwise produced, of
the tenor of the Definitive Notes in lieu of which they are issued and with
such variations not inconsistent with the terms of this Indenture as the
officers executing such Notes may determine, as evidenced by their execution
of such Notes.
If temporary Notes are issued, 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 Indenture Trustee shall authenticate
and deliver in exchange therefor a like principal amount of Definitive Notes
of authorized denominations. Until so exchanged, the temporary Notes shall in
all respects be entitled to the same benefits under this Indenture as
Definitive Notes.
SECTION 2.4 Registration of Transfer and Exchange. 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 Registrar
shall provide for the registration of the Notes and the registration of
transfers of the Notes. Chase 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, Chase notifies
the Indenture Trustee that it is unable to act as Note Registrar, the
Indenture Trustee shall act, or the Indenture 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 Indenture Trustee may revoke such appointment and remove
Chase as Note Registrar if the Indenture Trustee determines in its sole
discretion that Chase failed to perform its obligations under this Indenture
in any material respect. Chase shall be permitted
5
to resign as Note Registrar upon 30 days' written notice to the Indenture
Trustee, the Seller and the Servicer; provided, however, that such resignation
shall not be effective and Chase shall continue to perform its duties as Note
Registrar until the Indenture Trustee has appointed a successor Note Registrar
with the consent of the Issuer.
If a Person other than the Indenture Trustee is appointed by
the Issuer as the Note Registrar, the Issuer will give the Indenture Trustee
prompt written notice of the appointment of such Note Registrar and of the
location, and any change in the location, of the Note Register, and the
Indenture Trustee shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof, and the Indenture Trustee shall
have the right to conclusively rely upon a certificate executed on behalf of
the Note Registrar by an Executive Officer thereof as to the names and
addresses of the Holders of the Notes and the principal amounts and number of
such Notes.
An institution succeeding to the corporate agency business
of the Note Registrar shall continue to be the Note Registrar without the
execution or filing of any paper or any further act on the part of the
Indenture Trustee or such Note Registrar.
The Note Registrar shall maintain in the City of New York an
office or offices or agency or agencies where Notes may be surrendered for
registration of transfer or exchange. The Note Registrar initially designates
its corporate trust office located at 450 West 33rd Street, New York, New York
10001-2697 as its office for such purposes. The Note Registrar shall give
prompt written notice to the Indenture Trustee, the Seller, the Servicer and
to the Noteholders of any change in the location of such office or agency.
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(a) of the Relevant UCC are met, the
Issuer shall execute, the Indenture Trustee shall authenticate and (if the
Note Registrar is different than the Indenture 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(a) of the Relevant UCC are met, the Issuer
shall execute and the Indenture Trustee shall authenticate and (if the Note
Registrar is different than the Indenture 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.
6
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 Indenture 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 Indenture Trustee may require. Each Note surrendered for
registration of transfer or exchange shall be cancelled by the Note Registrar
and disposed of by the Indenture Trustee or Note Registrar in accordance with
its customary practice.
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 such 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
Indenture Trustee such security or indemnity as may be required by them to
hold the Issuer, the Note Registrar and the Indenture Trustee harmless, then,
in the absence of notice to the Issuer, the Note Registrar or the Indenture
Trustee that such Note has been acquired by a bona fide purchaser, and
provided that the requirements of Section 8-405 of the Relevant UCC are met,
the Issuer shall execute and the Indenture Trustee or an Authenticating Agent
shall authenticate and (if the Note Registrar is different from the Indenture
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 Indenture Trustee shall be entitled to
recover such replacement Note (or such payment) from the Person to whom it was
delivered or any Person taking such replacement Note from such Person to whom
such replacement Note was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent
7
of any loss, damage, cost or expense incurred by the Issuer, the Note
Registrar or the Indenture 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 Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section 2.5
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 Indenture Trustee,
the Note Registrar and any agent of the Issuer, the Indenture 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 shall be overdue, and
neither the Issuer, the Indenture Trustee or the Note Registrar nor any agent
of the Issuer, the Indenture 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, the Class A-2 Note, the Class A-3 Note and the Class A-4 Note
set forth in Exhibits B, C, D and E, 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 Note Final Scheduled Distribution Date (and except
for the Redemption Price for any Note called for redemption pursuant to
Section 10.1 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.
8
(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, the Class A-2 Note, the
Class A-3 Note and the Class A-4 Note, set forth in Exhibits B, C, D and E,
respectively. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable, if not previously paid, on the
date on which an Event of Default shall have occurred and be continuing, if
the Indenture 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 Indenture Trustee shall notify the Person in whose name
a Note is registered at the close of business on the Record Date preceding the
Distribution Date 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 Indenture 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
ss.ss.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 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 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 Notes have been issued to Note
Owners pursuant to Section 2.12:
9
(a) the provisions of this Section shall be in full force
and effect;
(b) the Note Registrar, the Paying Agent and the Indenture
Trustee shall be entitled to deal with the Clearing Agency for all
purposes of this Indenture (including the payment of principal of and
interest on the Notes and the giving of instructions or directions
hereunder) as the sole Holder of the Notes, and shall have no
obligation to the Note Owners;
(c) to the extent that the provisions of this Section
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 Notes) 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 Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice
or other communication to the Noteholders is required under this Indenture,
unless and until Definitive Notes shall have been issued to the Note Owners
pursuant to Section 2.12, the Indenture Trustee shall 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 Indenture Trustee in writing that the Clearing Agency is no longer willing
or able to properly discharge its responsibilities with respect to the Notes,
and the Servicer is unable to locate a qualified
10
successor, (b) the Servicer at its option advises the Indenture Trustee in
writing that it elects to terminate the book-entry system through the Clearing
Agency, or (c) after the occurrence of an Event of Default or an Event of
Servicing Termination, the Note Owners representing beneficial interests
aggregating not less than a majority of the Outstanding Amount of the Notes
advise the Indenture Trustee and the Clearing Agency through the Clearing
Agency Participants in writing, and if the Clearing Agency shall so notify the
Indenture Trustee 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
Indenture Trustee shall authenticate and (if the Note Registrar is different
than the Indenture 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 Indenture Trustee shall be
liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of the Definitive Notes, the Indenture Trustee shall recognize the
Holders of the Definitive Notes as the Noteholders.
SECTION 2.13 Authenticating Agent. (a) The Indenture 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 Indenture Trustee in authenticating the Notes in connection with the
issuance, delivery, registration of transfer, exchange or repayment of the
Notes. The Indenture Trustee hereby appoints Chase 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 Indenture Trustee or the Indenture
Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Indenture Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Indenture
Trustee by an Authenticating Agent. Each Authenticating Agent, other than
Chase, 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 or any further act on the part of the
Indenture Trustee or such Authenticating Agent.
(c) An Authenticating Agent may at any time resign by giving written
notice of resignation to the Indenture Trustee and the Issuer. The Indenture
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
Indenture Trustee or the Issuer, the Indenture 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
11
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, mutatis mutandis, 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 Indenture 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 Indenture Trustee
By:
-----------------------------------
Authorized Officer
or
-------------------------------------
as Authenticating Agent
for the Indenture Trustee,
-------------------------------------
Authorized Officer
SECTION 2.14 Appointment of Paying Agent. (a) The Indenture
Trustee may appoint a Paying Agent with respect to the Notes. The Indenture
Trustee hereby appoints Chase as the initial Paying Agent. The Paying Agent
shall have the revocable power to withdraw funds from the Accounts and make
distributions to the Noteholders, the Servicer, the Administrator and the
Owner Trustee pursuant to Section 5.5 of the Sale and Servicing Agreement. The
Indenture Trustee may revoke such power and remove the Paying Agent if the
Indenture Trustee determines in its sole discretion that the Paying Agent
shall have failed to perform its obligations under this Indenture in any
material respect or for other good cause. Chase shall be permitted to resign
as Paying Agent upon 30 days' written notice to the Seller and the Indenture
Trustee. In the event that Chase shall no longer be the Paying Agent, the
Indenture Trustee shall appoint a successor to act as Paying Agent (which
shall be a bank or trust company and may be the Indenture Trustee) with the
consent of the Seller, which consent shall not be unreasonably withheld. If at
any time the Indenture Trustee shall be acting as the Paying Agent, the
provisions of Sections 6.1, 6.3 and 6.4 shall apply, mutatis mutandis, to the
Indenture Trustee in its role as Paying Agent.
12
The Indenture Trustee will cause each Paying Agent, other
than itself and Chase, to execute and deliver to the Indenture Trustee an
instrument in which such Paying Agent shall agree with the Indenture Trustee
(and if the Indenture Trustee acts as Paying Agent, it hereby so agrees),
subject to the provisions of this Section, 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 Indenture Trustee notice of any default by the
Issuer (or any other obligor upon the Notes) of which it has actual
knowledge in the making of any payment required to be made with
respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee, forthwith
pay to the Indenture Trustee all sums so held in trust by such Paying
Agent;
(iv) immediately resign as a Paying Agent and forthwith pay
to the Indenture Trustee all sums held by it in trust for the payment
of 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.
(b) Chase in its capacity as initial Paying Agent hereunder
agrees that it (i) will hold all sums held by it hereunder for payment to the
Noteholders in trust for the benefit of the Noteholders entitled thereto until
such sums shall be paid to such Noteholders and (ii) shall comply with all
requirements of the Code regarding the withholding by the Indenture Trustee of
payments in respect of United States federal income taxes due from Note
Owners.
(c) An institution succeeding to the corporate agency
business of the Paying Agent shall continue to be the Paying Agent without the
execution or filing of any paper or any further act on the part of the
Indenture Trustee or such Paying Agent.
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
13
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 the holders of the Class A-1 Notes, (ii) for the benefit of the Class A-2
Notes, to the holders of the Class A-2 Notes, (iii) for the benefit of the
Class A-3 Notes, to the holders of the Class A-3 Notes and (iv) for the
benefit of the Class A-4 Notes, to the holders of the Class A-4 Notes. 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 Indenture 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 Indenture 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 Indenture Trustee
as its agent to receive all such surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust. As
provided in 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 Indenture Trustee or by a
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, at
the direction of the Servicer in accordance with Section 5.5 of the Sale and
Servicing Agreement, the Indenture Trustee or the Paying Agent shall deposit
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 Indenture Trustee or deposit was made by the Indenture Trustee) shall
promptly notify the Indenture Trustee of its action or failure so to act.
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 Indenture Trustee all sums held in trust
by such Paying Agent, such sums to be held by the Indenture Trustee upon the
same trusts as those upon which the sums were held by such Paying Agent; and
upon such a payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to the escheat of
funds, any money held by the Indenture Trustee or any Paying Agent in trust
for the payment of any amount due with respect to any Note and remaining
unclaimed for two years after such amount has
14
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 Indenture Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided that the Indenture 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 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 Indenture 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 Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.4 Existence. Except as otherwise permitted by the
provisions of Section 3.10, 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 Indenture Trustee and the
Noteholders in any of the Collateral; or
(d) preserve and defend title to the Trust Estate and the
rights of the Indenture Trustee and the Noteholders in such Trust
Estate against the claims of all persons and parties.
15
The Issuer hereby designates the Indenture Trustee its agent
and attorney-in-fact to execute any financing statement, continuation
statement or other instrument required to be filed by the Indenture Trustee
pursuant to this Section.
SECTION 3.6 Opinions as to Trust Estate. (a) On the Closing
Date, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been
taken with respect to the recording and filing of this Indenture, any
indentures supplemental hereto, and any other requisite documents, and with
respect to the execution and filing of any financing statements and
continuation statements, as are necessary to perfect and make effective the
lien and security interest of this Indenture and reciting the details of such
action, or stating that, in the opinion of such counsel, no such action is
necessary to make such lien and security interest effective.
(b) On or before March 31 of each calendar year, commencing
with March 31, 1999, the Issuer shall furnish to the Indenture Trustee an
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as are necessary to maintain
the perfection of the lien and security interest created by this Indenture and
reciting the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain the perfection of 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 perfection of 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 Indenture 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 the Trust Estate,
including but not limited to preparing (or causing to
16
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 Indenture Trustee and the Rating Agencies
thereof in accordance with Section 11.4, 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) Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the rights
of the Indenture Trustee hereunder, the Issuer agrees that, unless such action
is specifically permitted hereunder or under the other Basic Documents, it
will not, without the prior written consent of the Indenture 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 Indenture Trustee or such Holders, the Issuer agrees, promptly
following a request by the Indenture Trustee to do so, to execute and deliver,
in its own name and at its own expense, such agreements, instruments, consents
and other documents as the Indenture Trustee may deem necessary or appropriate
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 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 Indenture Trustee;
(b) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code) or
assert any claim against any present or former Noteholder by reason
of the payment of the taxes levied or assessed upon any part of the
Trust Estate; or
17
(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 Indenture Trustee on or before March 31 of each year,
commencing March 31, 1999, 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
(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 thereof and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee,
in form satisfactory to the Indenture Trustee, the due and 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;
18
(iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the Indenture
Trustee) to the effect that such transaction will not have any
material adverse tax consequence to the Trust, any Noteholder or any
Certificateholder;
(v) any action as is necessary to maintain the lien
and security interest created by this Indenture shall have been
taken; and
(vi) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation or merger and such supplemental
indenture comply with this 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 thereof, (B) expressly assume,
by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture 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
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 Indenture
Trustee) to the effect that such transaction will not have any
material adverse tax consequence to the Trust, any Noteholder or any
Certificateholder;
19
(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
Indenture 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 in accordance with Section 3.10(b), Chase Manhattan
Auto Owner Trust 1998-A 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
Indenture Trustee from the Person acquiring such assets and properties stating
that Chase Manhattan Auto Owner Trust 1998-A is to be so released.
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 to the purposes 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 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.
20
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, (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 Seller, the Owner Trustee, the Administrator, the Indenture
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.
SECTION 3.18 Notice of Events of Default. The Issuer agrees
to give the Indenture Trustee and the Rating Agencies prompt written notice of
each Event of Default, 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 Indenture 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.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Notes except
as to (a) rights of registration of transfer and exchange, (b) substitution of
mutilated, destroyed, lost or stolen Notes, (c) rights of Noteholders to
receive payments of principal thereof and interest thereon, (d) Sections 3.2,
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 Indenture Trustee hereunder (including the
rights of the Indenture Trustee under Section 6.7 and the obligations of the
Indenture Trustee under Sections 4.2 and 4.4) and (f) the rights of
Noteholders as beneficiaries hereof with respect to the property so deposited
with the Indenture Trustee payable to all or any of them, and the Indenture
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to the Notes, when,
(i) either:
21
(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
Indenture Trustee for cancellation; or
(B) all Notes not theretofore delivered to the
Indenture Trustee for cancellation:
(1) have become due and payable,
(2) will become due and payable at their
respective Note Final Scheduled Distribution Dates
within one year, or
(3) are to be called for redemption within
one year under arrangements satisfactory to the
Indenture Trustee for the giving of notice of
redemption by the Indenture Trustee in the name,
and at the expense, of the Issuer,
and the Issuer, in the case of clauses (1), (2) or (3) of
Section 4.1(i)(B), has irrevocably deposited or caused to be
irrevocably deposited with the Indenture Trustee cash or
direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the
date such amounts are payable), in trust for such purpose,
in an amount sufficient to pay and discharge the entire
unpaid principal and accrued interest on such Notes not
theretofore delivered to the Indenture Trustee for
cancellation when due on their respective Note Final
Scheduled Distribution Dates or Redemption Date (if the
Notes shall have been called for redemption pursuant to
Section 10.1);
(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 Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if required by the
TIA or the Indenture Trustee) an Independent Certificate from a firm
of certified public accountants, each meeting the applicable
requirements of Section 11.1 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 Indenture Trustee pursuant to Section 4.1(i)(B) shall be held in
trust and applied by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through any Paying Agent,
as the Indenture Trustee may determine, to the Holders of the particular Notes
for the payment or redemption of which such moneys have been deposited
22
with the Indenture Trustee, of all sums due and to become due thereon for
principal and interest; but such moneys need not be segregated from other
funds except to the extent required herein or in the Sale and Servicing
Agreement or required by law.
SECTION 4.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to the Notes, all moneys then held by any Paying Agent other than the
Indenture Trustee under the provisions of this Indenture with respect to such
Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to be
held and applied according to Section 3.3 and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
SECTION 4.4 Duration of the Position of the Indenture
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 Indenture Trustee's duties
hereunder with respect to such Notes, the Indenture Trustee shall continue to
act in the capacity of the Indenture Trustee hereunder for the benefit of the
Certificateholders and the Indenture Trustee, for the benefit of the
Certificateholders, shall comply with its obligations under Sections 5.1, 5.5,
5.6, 7.5, 8.1 and 8.2 of the Sale and Servicing Agreement, as appropriate,
until such time as all distributions in respect of the 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 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
23
and the Servicer on behalf of the Issuer delivers an Officer's
Certificate to the Indenture 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
Indenture Trustee or to the Issuer and the Indenture 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 Indenture Trustee, within
five days after the occurrence thereof, written notice in the form of an
Officer's Certificate of any event which with the giving of notice and the
lapse of time would become an Event of Default under clause (c), its status
and what action 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 shall occur and be continuing, then and in
every such case the Indenture 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 Indenture 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 Indenture 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
Indenture 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 Indenture Trustee. (a) The Issuer covenants that if (i)
default is made in the payment of any interest on any Note when the same
becomes due and payable, and such default continues for a period of five days,
or (ii) default is made in the payment of the principal of or any installment
of the principal of any Note when the same becomes due and payable, the Issuer
will, upon demand of the Indenture Trustee, pay to it, for the benefit of the
Holders of the Notes, the whole amount then due and payable on such Notes for
principal and interest, with interest upon the overdue principal, and, to the
extent payment at such rate of interest shall be legally enforceable, upon
overdue installments of interest, at the rate borne by the Notes, and in
addition thereto such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and
counsel.
24
(b) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as
trustee of an express trust, may institute a proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceeding to judgment or
final decree, and may enforce the same against the Issuer or other obligor
upon such Notes and collect in the manner provided by law out of the property
of the Issuer or other obligor upon such Notes, wherever situated, the moneys
adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders, by such appropriate proceedings as the Indenture Trustee shall
deem most effective to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Indenture Trustee by this
Indenture or by 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 Indenture Trustee, irrespective of whether the principal of any
Notes shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Indenture Trustee shall have made
any demand pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee
(including any claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their respective
agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence, bad faith or willful misconduct) and of the Noteholders
allowed in such proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of 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 Indenture Trustee on their behalf; and
25
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Indenture Trustee or the Holders of 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 Indenture Trustee, and, in the event that the Indenture
Trustee shall consent to the making of payments directly to such Noteholders,
to pay to the Indenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Indenture Trustee, each predecessor Indenture
Trustee and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee except as a result of
negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize
the Indenture Trustee to authorize or consent to or vote for or accept or
adopt on behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof or to authorize the Indenture Trustee to vote in respect of the claim
of any Noteholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders of the Notes.
(g) In any proceedings brought by the Indenture Trustee (and
also any proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the 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 Indenture Trustee may do one or more of the following
(subject to Section 5.5):
(i) institute proceedings in its own name and as trustee of
an express trust for the collection of all amounts then payable on
the Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Notes moneys adjudged
due;
26
(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
Relevant UCC and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and the
Holders of the Notes; and
(iv) sell the Trust Estate or any portion thereof or rights
or interest therein, at one or more public or private sales called
and conducted in any manner permitted by law;
provided that the Indenture 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 and the
Certificateholders are sufficient to discharge in full all amounts then due
and unpaid upon such Notes for principal and interest and the Certificate
Balance plus accrued interest thereon, or (C)(1) there has been an Event of
Default described in Section 5.1(a) or (b), (2) the Indenture Trustee
determines that the Trust Estate will not continue to provide sufficient funds
for the payment of principal of and interest on the Notes as they would have
become due if the Notes had not been declared due and payable, and (3) the
Indenture Trustee obtains the consent of Holders of 66-2/3% of the Outstanding
Amount of the Notes. In determining such sufficiency or insufficiency with
respect to clause (B) and (C), the Indenture Trustee may, but need not, obtain
and rely upon an opinion of an Independent investment banking or accounting
firm of national reputation as to the feasibility of such proposed action and
as to the sufficiency of the Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out 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 Indenture 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 Indenture Trustee may, but need not, elect to
maintain possession of the Trust Estate. It is the desire of the parties
hereto and the Noteholders that there be at all times sufficient funds for the
payment of principal of and interest on the Notes, and the Indenture Trustee
shall take such desire into account when determining whether to maintain
possession of the Trust Estate. In determining whether to maintain possession
of the Trust Estate, the Indenture Trustee may, but need not, obtain and rely
upon an opinion of an Independent investment banking or
27
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
Indenture Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% of the Outstanding
Amount of the Notes have made written request to the Indenture
Trustee to institute such proceeding in respect of such Event of
Default in its own name as the Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture
Trustee indemnity reasonably satisfactory to it against the costs,
expenses and liabilities to be incurred in complying with such
request;
(d) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute
such proceedings; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the
Holders of a majority of the Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of 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 Indenture 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 Indenture Trustee in its sole discretion may determine what
action, if any, shall be taken, notwithstanding any other provisions of this
Indenture.
SECTION 5.7 Unconditional Rights of Noteholders To Receive
Principal and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any, on
such Note on or after the respective due dates thereof expressed in such Note
or in this Indenture (or, in the case of redemption, on or after the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
28
SECTION 5.8 Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce
any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason or has been determined adversely to
the Indenture Trustee or to such Noteholder, then and in every such case the
Issuer, the Indenture Trustee and the Noteholders shall, subject to any
determination in such Proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Indenture 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 Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee or any Holder of any Note to exercise any
right or remedy accruing upon any Default or Event of Default shall impair any
such right or remedy or constitute a waiver of any such Default or Event of
Default or an acquiescence therein. Every right and remedy given by this
Article V or by law to the Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or by the Noteholders, as the case may be.
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 Indenture Trustee with respect to the Notes or exercising any
trust or power conferred on the Indenture Trustee; provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) subject to the express terms of Section 5.4, any
direction to the Indenture 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 Indenture Trustee elects to retain the Trust Estate
pursuant to such Section, then any direction to the Indenture 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 Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction; and
29
(e) such direction shall be in writing;
provided, further, that, subject to Section 6.1, the Indenture Trustee need
not take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to
such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Notes as provided in
Section 5.2, the Holders of 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 Indenture Trustee and the Holders of the Notes shall be restored
to their former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereto.
Upon any such waiver, such Default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto. 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 Indenture Trustee for any action taken,
suffered or omitted by it as the Indenture 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 Indenture Trustee, (b) any suit
instituted by any Noteholder or group of Noteholders, in each case holding in
the aggregate more than 10% of the Outstanding Amount of the Notes, or (c) any
suit instituted by any Noteholder for the enforcement of the payment of
principal of or interest on any Note on or after the respective due dates
expressed in such Note and in this Indenture (or, in the case of redemption,
on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. 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
30
hinder, delay or impede the execution of any power herein granted to the
Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right
to seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture nor any
rights or remedies of the Indenture Trustee or the Noteholders shall be
impaired by the recovery of any judgment by the Indenture Trustee against the
Issuer or by the levy of any execution under such judgment upon any portion of
the Trust Estate or upon any of the assets of the Issuer.
SECTION 5.16 Performance and Enforcement of Certain
Obligations. (a) Promptly following a request from the Indenture Trustee to do
so and at the Administrator's expense, the Issuer agrees to take all such
lawful action as the Indenture Trustee may request to compel or secure the
performance and observance by the Seller and the Servicer, 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 Indenture Trustee,
including the transmission of notices of default on the part of the Seller or
the Servicer thereunder and the institution of legal or administrative actions
or proceedings to compel or secure performance by the Seller or the Servicer
of each of their respective obligations under the Sale and Servicing
Agreement.
(b) If an Event of Default has occurred and is continuing,
the Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of the
Holders of 66-2/3% of the Outstanding Amount of the Notes shall, foreclose
upon its security interest in the Issuer's rights under the Sale and Servicing
Agreement and 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 INDENTURE TRUSTEE
SECTION 6.1 Duties of the Indenture Trustee. (a) The
Indenture 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 Indenture Trustee has occurred
31
and is continuing, the Indenture 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 Indenture Trustee shall assume the
duties of the Servicer pursuant to Section 8.2 of the Sale and Servicing
Agreement, the Indenture 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 Indenture Trustee, upon receipt of any resolutions,
certificates, statements, opinions, reports, documents, orders, or other
instruments furnished to the Indenture 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 Indenture 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 Indenture Trustee pursuant to this Indenture or the Sale
and Servicing Agreement.
(b) No provision of this Indenture shall be construed to
relieve the Indenture 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 Indenture Trustee
undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and the Sale and Servicing
Agreement, and no implied covenants or obligations shall be read into
this Indenture or the Sale and Servicing Agreement against the
Indenture Trustee, and in the absence of bad faith on its part or
manifest error, the Indenture Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the
Indenture Trustee and conforming to the requirements of this
Indenture or the Sale and Servicing Agreement; and
(ii) The Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts nor shall the Indenture 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 Indenture Trustee shall not be liable for interest
on any money received by it except as the Indenture Trustee may agree in
writing with the Issuer.
32
(d) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms
of this Indenture or the Sale and Servicing Agreement.
(e) No provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if it shall have reasonable grounds to believe
that 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 Indenture 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 Indenture Trustee shall be the successor to,
and be vested with the rights, duties, powers and privileges of, the Servicer
in accordance with the terms of the Sale and Servicing Agreement.
(f) The Indenture 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 Indenture 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 Indenture
Trustee shall be subject to the provisions of this Section and to the
provisions of the TIA.
SECTION 6.2 Rights of the Indenture Trustee. (a) The
Indenture Trustee may conclusively rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Indenture Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Indenture Trustee acts or refrains from
acting, it may require an Opinion of Counsel. The Indenture 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 Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture
Trustee shall not be responsible for any misconduct or negligence on the part
of, or for the supervision of, any such agent, attorney, custodian or nominee
appointed with due care by it hereunder. The Indenture Trustee shall have no
duty to monitor the performance of the Issuer.
(d) The Indenture 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
33
powers; provided, that the Indenture Trustee's conduct does not constitute
willful misconduct, negligence or bad faith.
(e) The Indenture 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. A copy of such written advice or Opinion of Counsel
shall be provided to the Seller, the Servicer and the Rating Agencies.
(f) Prior to the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, the Indenture
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 Outstanding Amount of the Notes; provided, however, that
if the payment within a reasonable time to the Indenture 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 Indenture Trustee, not
reasonably assured to the Indenture Trustee by the security afforded to it by
the terms of this Indenture, the Indenture 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 Indenture Trustee, shall be
reimbursed by the Issuer or by the Servicer at the direction of the Issuer
upon demand. Nothing in this clause (f) shall affect the obligation of the
Issuer or the Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors.
SECTION 6.3 Individual Rights of the Indenture Trustee. The
Indenture 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 Indenture
Trustee. Any Paying Agent, the Note Registrar, co-registrar or co-paying agent
may do the same with like rights. However, the Indenture Trustee must comply
with Sections 6.11 and 6.12.
SECTION 6.4 The Indenture Trustee's Disclaimer. The
Indenture Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, 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 Indenture Trustee's certificate of authentication.
SECTION 6.5 Notice of Defaults. If a Default occurs and is
continuing and if it is either actually known or written notice of the
existence thereof has been delivered to a Responsible Officer of the Indenture
Trustee, the Indenture Trustee shall mail to each Noteholder notice of the
Default within 90 days after such knowledge or notice occurs. Except in the
case of a Default in accordance with the provisions of Section 313(c) of the
34
TIA in payment of principal of or interest on any Note (including payments
pursuant to the mandatory redemption provisions of such Note), the Indenture
Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is
in the interest of the Noteholders.
SECTION 6.6 Reports by the Indenture Trustee to Holders.
Within the prescribed period of time for tax reporting purposes after the end
of each calendar year during the term of this Indenture, the Indenture Trustee
shall deliver to each Noteholder such information as may be reasonably
required to enable such Holder to prepare its United States federal, state and
local income or franchise tax returns for such calendar year.
SECTION 6.7 Compensation and Indemnity. The Issuer shall
cause the Servicer pursuant to the Sale and Servicing Agreement to pay to the
Indenture Trustee from time to time reasonable compensation for its services.
The Indenture Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall cause the
Servicer pursuant to the Sale and Servicing Agreement to reimburse the
Indenture Trustee for all reasonable out-of-pocket expenses incurred or made
by it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and
expenses, disbursements and advances of the Indenture Trustee's agents,
counsel, accountants and experts. The Issuer shall cause the Servicer pursuant
to the Sale and Servicing Agreement to indemnify the Indenture 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 Indenture Trustee shall notify the Issuer and the Servicer promptly of any
claim for which it may seek indemnity.
The Servicer's payment obligations to the Indenture Trustee
pursuant to this Section shall survive the discharge of this Indenture. When
the Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.1(d) 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 Indenture Trustee. (a) The
Indenture 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 Indenture Trustee by so notifying the Indenture Trustee
and may appoint a successor Indenture Trustee. The Issuer shall remove the
Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section
6.11;
(ii) the Indenture Trustee is adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of
the Indenture Trustee or its property; or
35
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
(b) If the Indenture Trustee gives notice of its intent to
resign or is removed or if a vacancy exists in the office of the Indenture
Trustee for any reason (the Indenture Trustee in such event being referred to
herein as the retiring Indenture Trustee), the Issuer shall promptly appoint a
successor Indenture Trustee.
(c) A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Issuer and thereupon the resignation or removal of the Indenture Trustee shall
become effective, and the successor Indenture Trustee, without any further
act, deed or conveyance shall have all the rights, powers and duties of the
Indenture Trustee under this Indenture. The successor Indenture Trustee shall
mail a notice of its succession to Noteholders. The retiring Indenture Trustee
shall promptly transfer all property held by it as the Indenture Trustee to
the successor Indenture Trustee.
(d) If a successor Indenture Trustee does not take office
within 60 days after the retiring Indenture Trustee gives notice of its intent
to resign or is removed, the retiring Indenture 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 Indenture
Trustee.
(e) If the Indenture Trustee fails to comply with Section
6.11, any Noteholder may petition any court of competent jurisdiction for the
removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee.
(f) Any resignation or removal of the Indenture Trustee and
appointment of a successor Indenture Trustee pursuant to any of the provisions
of this Section shall not become effective until acceptance of appointment by
the successor Indenture Trustee pursuant to Section 6.8(c) and payment of all
fees and expenses owed to the outgoing Indenture Trustee.
(g) Notwithstanding the resignation or removal of the
Indenture 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
Indenture Trustee. The Indenture Trustee shall not be liable for the acts or
omissions of any successor Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee.
The Indenture 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 Indenture Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been
authenticated but not delivered, any such successor to the
36
Indenture Trustee may adopt the certificate of authentication of any
predecessor Indenture Trustee, and deliver such Notes so authenticated; and in
case at that time any of the Notes shall not have been authenticated, any
successor Indenture Trustee may authenticate such Notes either in the name of
any predecessor Indenture Trustee hereunder or in the name of the successor
Indenture 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 Indenture
Trustee.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. (a) Notwithstanding any other provisions of this Indenture,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any part of the Issuer may at the time be located, the
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of
the Issuer, and to vest in such Person or Persons, in such capacity and for
the benefit of the Noteholders, such title to the Issuer, or any part hereof,
and, subject to the other provisions of this Section, such power, duties,
obligations, rights and trusts as the Indenture 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
Indenture Trustee of its obligations under this Indenture. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility
as an Indenture 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.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Indenture Trustee shall be conferred or imposed
upon and exercised or performed by the Indenture Trustee and such
separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately
without the Indenture Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular
act or acts are to be performed the Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the
holding of title to the Issuer or the Trust Estate or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder,
including acts or omissions of predecessor or successor trustees; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
37
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer to
this Indenture and the conditions of this Article VI. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be vested
with the estates or property specified in its instrument of appointment,
either jointly with the Indenture Trustee or separately, as may be provided
therein, subject to all the provisions of this Indenture, specifically
including every provision of this Indenture relating to the conduct of,
affecting the liability of, or affording protection to, the Indenture Trustee.
Every such instrument shall be filed with the Indenture Trustee (with a copy
given to the Issuer).
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Indenture Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture
Trustee shall at all times satisfy the requirements of TIA ss.310(a). The
Indenture Trustee shall have a combined capital and surplus of at least
$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 long-term unsecured debt of the Indenture Trustee shall
at all times be rated not lower than "BBB-" by Standard & Poor's and Fitch (if
rated by Fitch) and Baa3 by Moody's or such other ratings as are acceptable to
the Rating Agencies. The Indenture Trustee shall comply with TIA ss.310(b),
including the optional provision permitted by the second sentence of TIA
ss.310(b)(9); provided that there shall be excluded from the operation of TIA
ss.310(b)(1) any indenture or indentures under which other securities of the
Issuer are outstanding if the requirements for such exclusion set forth in the
TIA ss.310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against the Issuer.
The Indenture Trustee shall comply with TIA ss.311(a), excluding any creditor
relationship listed in TIA ss.311(b). A Indenture Trustee who has resigned or
been removed shall be subject to TIA ss.311(a) to the extent indicated
therein.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 The Issuer To Furnish the Indenture Trustee
Names and Addresses of the Noteholders. The Issuer will furnish or cause to be
furnished to the Indenture Trustee (a) not more than five days after each
Record Date, a list, in such form as the Indenture 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 Indenture Trustee may request in
38
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 Indenture
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 Indenture Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of the Holders of
Notes contained in the most recent list furnished to the Indenture Trustee as
provided in Section 7.1 and the names and addresses of the Holders of Notes
received by the Indenture Trustee in its capacity as the Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.1 upon receipt of a new list so furnished.
(b) The Noteholders may communicate pursuant to TIA
ss.312(b) with other Noteholders with respect to their rights under this
Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA ss.312(c).
SECTION 7.3 Reports by the Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee within 15 days
after the Issuer is required to file the same with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the
Commission in accordance with rules and regulations prescribed from
time to time by the Commission such additional information, documents
and reports with respect to compliance by the Issuer with the
conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders described
in TIA ss.313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i)
and (ii) of this Section 7.3(a) as may be required by rules and
regulations prescribed from time to time by the Commission.
(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 Indenture Trustee. If required by
TIA ss. 313(a), within 60 days after each March 31, beginning with March 31,
1999 the Indenture Trustee shall mail to each Noteholder as required by TIA
ss. 313(c) a brief report dated as of such date
39
that complies with TIA ss. 313(a). The Indenture Trustee also shall comply
with TIA ss. 313(b). A copy of each report at the time of its mailing to
Noteholders shall be filed by the Indenture Trustee with the Commission and
each stock exchange, if any, on which the Notes are listed. The Issuer shall
notify the Indenture Trustee if and when the Notes are listed on any stock
exchange. On each Distribution Date, the Indenture Trustee shall include with
each payment to each Noteholder a copy of the statement for the related
Collection Period provided to the Indenture Trustee pursuant to Section 5.8 of
the Sale and Servicing Agreement.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable
to or receivable by the Indenture Trustee pursuant to this Indenture. The
Indenture Trustee shall apply all such money received by it as provided in
this Indenture and the Sale and Servicing Agreement. Except as otherwise
provided in this Indenture, if any default occurs in the making of any payment
or performance under any agreement or instrument that is part of the Trust
Estate, the Indenture Trustee may take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate proceedings. Any such action shall be without prejudice to any
right to claim a Default or Event of Default under this Indenture and any
right to proceed thereafter as provided in Article V.
SECTION 8.2 Trust Accounts. (a) On or prior to the Closing
Date, the Issuer shall cause the Servicer and the Seller to establish and
maintain, in the name of the Indenture Trustee, for the benefit of the
Noteholders and/or the Certificateholders, as applicable, the Trust Accounts
as provided in Sections 5.1 and 5.6 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. On each Deposit Date, the
Indenture Trustee shall withdraw the Reserve Account Transfer Amount for the
related 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 Indenture Trustee or the
Paying Agent on behalf of the Indenture 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(c) of the Sale and Servicing Agreement.
(c) Not later than 12:00 noon, New York City time, on each
Distribution Date, the Indenture Trustee or the Paying Agent on behalf of the
Indenture Trustee shall distribute all amounts on deposit in the Note
Distribution Account to the Noteholders to the
40
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 (vi) 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 (vi) below, to the
Holders of the Class A-2 Notes until the Outstanding Amount of the
Class A-2 Notes is reduced to zero;
(vi) unless otherwise provided in clause (vi) below, to the
Holders of the Class A-3 Notes until the Outstanding Amount of the
Class A-3 Notes is reduced to zero;
(v) unless otherwise provided in clause (vi) below, to the
Holders of the Class A-4 Notes until the Outstanding Amount of the
Class A-4 Notes is reduced to zero; and
(vi) 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.
(d) Notwithstanding anything in this Section 8.2 to the
contrary (but subject to clause (vi) of Section 8.2(c)), if the Class A-1
Event has occurred, amounts deposited into the Note Distribution Account with
respect to the Class A-1 Notes on the March 1999 Distribution Date with
respect to the Class A-1 Notes will distributed pursuant to clauses (i) and
(ii) of Section 8.2(c) on such date, and amounts deposited into the Note
Distribution Account with respect to the Class A-2, the Class A-3 and the
Class A-4 on the applicable March 1999 Distribution Date with respect to the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes will be
distributed pursuant to clauses (i), (iii), (iv), and (v) of Section 8.2(c).
SECTION 8.3 General Provisions Regarding Accounts. (a) In
accordance with Section 5.1(b) and Section 5.6(b) of the Sale and Servicing
Agreement, all funds in the Collection Account and the Reserve Account shall
be invested in Permitted Investments upon written direction of the Servicer or
the Seller, as applicable. All income or other gain from investments of moneys
deposited in such Trust Accounts shall be paid as provided in the Sale and
Servicing Agreement, and any loss resulting from such investments shall be
charged to such account. The Servicer or the Seller, as applicable, will not
direct the Indenture Trustee to make any investment of any funds or to sell
any investment held in any of such Trust
41
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 Indenture Trustee to make any such investment or
sale, if requested by the Indenture Trustee, the Servicer or the Seller, as
applicable, shall deliver to the Indenture Trustee an Opinion of Counsel,
acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.1(b), the Indenture Trustee shall
not in any way be held liable by reason of any insufficiency in any of the
Trust Accounts resulting from any loss on any Permitted Investment included
therein except for losses attributable to the Indenture Trustee's failure to
make payments on such Permitted Investments issued by the Indenture Trustee,
in its commercial capacity as principal obligor and not as trustee, in
accordance with their terms.
(c) If (i) the Servicer or the Seller, as applicable, shall
have failed to give investment directions for any funds on deposit in the
Collection Account or the Reserve Account, as the case may be, to the
Indenture Trustee by 11:00 a.m. New York City time (or such other time as may
be agreed by the Servicer or the Seller, as applicable, and the Indenture
Trustee) on any Business Day, or (ii) a Default or Event of Default shall have
occurred and be continuing with respect to the Notes but the Notes shall not
have been declared due and payable pursuant to Section 5.2, or, if such Notes
shall have been declared due and payable following an Event of Default,
amounts collected or receivable from the Trust Estate are being applied in
accordance with Section 5.5 as if there had not been such a declaration, then
the Indenture Trustee shall, to the fullest extent practicable, invest and
reinvest funds in such Trust Accounts in one or more Permitted Investments.
The Indenture Trustee shall not be liable for losses in respect of such
investments in Permitted Investments that comply with the requirements of the
Basic Documents except for losses attributable to the Indenture Trustee's
failure to make payments on such Permitted Investments issued by the Indenture
Trustee, in its commercial capacity as principal obligor and not as trustee,
in accordance with their terms.
SECTION 8.4 Release of Trust Estate. (a) Subject to the
payment of its fees and expenses pursuant to Section 6.7, the Indenture
Trustee may, and when required by the provisions of this Indenture shall,
execute instruments to release property from the lien of this Indenture, or
convey the Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Indenture Trustee as
provided in this Article VIII shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are
no Notes Outstanding, and all sums due the Indenture Trustee pursuant to
Section 6.7 have been paid, release any remaining portion of the Trust Estate
that secured the Notes from the lien of this Indenture and release to the
Issuer or any other Person entitled thereto any funds then on deposit in the
Note Distribution Account. The Indenture Trustee shall (i) release any
remaining portion of the Trust Estate that secures the Certificates from the
lien of this
42
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 Indenture Trustee pursuant to
Section 6.7 have been paid. The Indenture Trustee shall release property from
the lien of this Indenture pursuant to this Section 8.4(b) only upon receipt
of an Issuer Request accompanied by an Officer's Certificate, an Opinion of
Counsel and (if required by the TIA) Independent Certificates in accordance
with TIA ss.ss. 314(c) and 314(d)(1) meeting the applicable requirements of
Section 11.1.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall
receive at least seven days' notice when requested by the Issuer to take any
action pursuant to Section 8.4(a), accompanied by copies of any instruments
involved, and the Indenture Trustee may also require as a condition of such
action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all 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 Indenture Trustee in connection with any such
action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of
Noteholders. (a) Without the consent of the Holders of any Notes but with
prior notice to the Rating Agencies by the Issuer, when authorized by an
Issuer Request, the Issuer and the Indenture Trustee at any time and from time
to time, may enter into one or more indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as in force at the
date of the execution thereof), in form satisfactory to the Indenture Trustee,
for any of the following purposes:
(i) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to 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 the 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;
43
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any
other provision herein or in any supplemental indenture or to make any
other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; provided that such action shall
not materially and adversely affect the interests of the Holders of the
Notes;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; and
(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.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further
appropriate agreements and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by
an Issuer Order, may, also without the consent of any of the Holders of the
Notes but with prior notice to the Rating Agencies by the Issuer, as evidenced
to the Indenture Trustee, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to, or changing in any manner
or eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Holders of the Notes under this Indenture; provided
that such action shall not, as evidenced by an Opinion of Counsel, materially
and adversely affect the interests of any Noteholder.
SECTION 9.2 Supplemental Indentures with Consent of the
Noteholders. The Issuer and the Indenture 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 Indenture Trustee,
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:
(i) change the date of payment of any installment
of principal of or interest on any Note, or reduce the principal
amount thereof, the interest rate thereon
44
or the Redemption Price with respect thereto, change the provision of
this Indenture relating to the application of collections on, or the
proceeds of the sale of, the Trust Estate to payment of principal of
or interest on the Notes, or change any place of payment where, or
the coin or currency in which, any Note or the interest thereon is
payable, or impair the right to institute suit for the enforcement of
the provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of any
such amount due on the Notes on or after the respective due dates
thereof (or, in the case of redemption, on or after the Redemption
Date);
(ii) reduce the percentage of the Outstanding
Amount of the Notes, the consent of the Holders of which is required
for any such supplemental indenture, or the consent of the Holders of
which is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso
to the definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding
Amount of the Notes required to direct the Indenture 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 Indenture Trustee may determine whether 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 Indenture Trustee shall not be
liable for any such determination made in good faith.
45
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 Indenture
Trustee of any supplemental indenture pursuant to this Section, the Indenture
Trustee shall mail to the Holders of the Notes to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties, liabilities and immunities
under this Indenture of the Indenture Trustee, the Issuer and the 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 and the Notes
affected thereby 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 TIA.
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 Indenture
Trustee shall, bear a notation in form approved by the Indenture Trustee as to
any matter provided for in such supplemental indenture. If the Issuer or the
Indenture Trustee shall so require, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
SECTION 9.6 Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture the Indenture Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Indenture Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Indenture Trustee's own rights, duties or immunities under
this Indenture or otherwise.
46
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. The Class A-4 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 shall furnish
notice of such election to the Indenture Trustee and the Note Registrar not
later than the 25th day of the month prior to the Redemption Date and the
Issuer shall deposit or cause the Servicer to deposit with the Indenture
Trustee in the Collection Account the Redemption Price of the Class A-4 Notes
to be redeemed, whereupon all such Class A-4 Notes shall be due and payable on
the Redemption Date.
SECTION 10.2 Form of Redemption Notice. Notice of redemption
under Section 10.1 shall be given by the Indenture 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-4 Notes, as of the close
of business on the Record Date preceding the applicable Redemption Date, at
such Holder's address appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that the Record Date otherwise applicable to
such Distribution Date is not applicable and that payments shall be
made only upon presentation and surrender of such Class A-4 Notes and
the place where such Class A-4 Notes are to be surrendered for
payment of the Redemption Price (which shall be the office or agency
to be maintained as provided in Section 3.2); and
(iv) that interest on the Class A-4 Notes shall
cease to accrue on the Redemption Date.
Notice of redemption of the Class A-4 Notes shall be given
by the Indenture Trustee in the name and at the expense of the Issuer. Failure
to give notice of redemption, or any defect therein, to any Holder of any
Class A-4 Notes shall not impair or affect the validity of the redemption of
any other Class A-4 Note.
SECTION 10.3 Notes Payable on Redemption Date. The Notes to
be redeemed shall, following notice of redemption as required by Section 10.2,
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
47
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 Indenture Trustee to take
any action under any provision of this Indenture, the Issuer shall furnish to
the Indenture Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants or other experts 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 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 Indenture 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 Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each person signing
such certificate as to the fair value (within 90 days of such deposit) to the
Issuer of the Collateral or other property or securities to be so deposited.
48
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(i), the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of all other such
securities made 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,
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 Indenture Trustee an
Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days
of such release) of the property or securities proposed to be
released and stating that in the opinion of such person the proposed
release will not impair the security under this Indenture in
contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause
(iii), the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of
the property or securities and of all other property other than
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 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 Indenture
Trustee. In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person my
certify or give an opinion as to such matters in one or several documents.
49
Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon 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, certificate or report to the Indenture Trustee, it is provided
that the Issuer shall deliver any document (x) as a condition of the granting
of such application, or (y) as evidence of the Issuer's compliance with any
term hereof, it is intended that the truth and accuracy, at the time of the
granting of such application or at the effective date of such certificate or
report (as the case may be), of the facts and opinions stated in such document
shall in each case be conditions precedent to the right of the Issuer to have
such application granted or to the sufficiency of such certificate or report.
The foregoing shall not, however, be construed to affect the Indenture
Trustee's right to rely upon the truth and accuracy of any statement or
opinion contained in any such document as provided in Article VI.
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
Indenture 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 Indenture 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 Indenture Trustee deems sufficient.
(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
50
omitted to be done, by the Indenture Trustee, the Issuer or the Servicer in
reliance thereon, regardless of whether notation of such action is made upon
such Note.
(d) The Indenture 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 Indenture 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 Indenture 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 Indenture Trustee at its Corporate Trust Office, or
(b) The Issuer by the Indenture 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 1998- A, in
care of Wilmington Trust Company, 1100 North Market Street,
Wilmington, Delaware, Attention: Corporate Trust Administration or at
any other address previously furnished in writing to the Indenture
Trustee by the Issuer. The Issuer shall promptly transmit any notice
received by it from the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the
Issuer, the Indenture Trustee or the Owner Indenture 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, 99 Church Street, New York, New York 10004, (ii) in the
case of Standard & Poor's, at the following address: Standard & Poor's Ratings
Service, 26 Broadway (15th Floor), New York, New York 10004, Attention: Asset
Backed Surveillance Department and (iii) in the case of Fitch, at the
following address: Fitch IBCA Inc., One State Street Plaza, New York, New York
10004; or as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
SECTION 11.5 Notices to Noteholders; Waiver. Where this
Indenture provides for notice to Noteholders of any event, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class, postage prepaid to each Noteholder affected
by such event, at his address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Noteholders is given by
mail, neither the failure to mail such notice nor any defect in any notice so
mailed to any particular Noteholder shall affect the sufficiency of such
notice with respect to other Noteholders, and any notice that is mailed in the
manner herein provided shall conclusively be presumed to have been duly given.
51
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the
Indenture Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
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 Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other 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 Indenture Trustee or any
Paying Agent to such Holder that is different from the methods provided for in
this Indenture for such payments or notices, provided that such methods are
reasonable and consented to by the Indenture Trustee (which consent shall not
be unreasonably withheld). The Issuer will furnish to the Indenture Trustee a
copy of each such agreement, and the Indenture Trustee will cause payments to
be made and notices to be given in accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required to be included in this indenture by any of the provisions of
the TIA, such required provision shall control.
The provisions of TIA ss.ss. 310 through 317 that impose
duties on any person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
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 its
successors and assigns. All agreements of the Indenture Trustee in this
Indenture shall bind its successors.
SECTION 11.10 Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not
be affected or impaired thereby.
52
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
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
SECTION 11.14 Counterparts. This Indenture may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and
the same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such
recording is to be effected by the Issuer and at its expense accompanied by an
Opinion of Counsel (which may be counsel to the Indenture Trustee or any other
counsel reasonably acceptable to the Indenture Trustee) to the effect that
such recording is necessary either for the protection of the Noteholders or
any other person secured hereunder or for the enforcement of any right or
remedy granted to the Indenture Trustee under this Indenture 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 Indenture Trustee on the Notes or under this Indenture or
any certificate or other writing delivered in connection herewith or
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director, employee or
agent of the Indenture Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
For all purposes of this Indenture, in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee shall be subject to,
and entitled to the benefits of, the terms and provisions of Articles VI, VII
and VIII of the Trust Agreement.
53
SECTION 11.17 No Petition. The Indenture Trustee, by
entering into this Indenture, and each Noteholder, by accepting a Note, hereby
covenant and agree that they will not at any time institute against the Issuer
or join in any institution against 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 Indenture
Trustee, during the Issuer's normal business hours, to examine all the books
of account, records, reports, and other papers of the Issuer, to make copies
and extracts therefrom, to cause such books to be audited by Independent
certified public accountants, and to discuss the Issuer's affairs, finances
and accounts with the Issuer's officers, employees and independent certified
public accountants, all at such reasonable times and as often as may be
reasonably requested. The Indenture Trustee shall and shall cause its
representatives to hold in confidence all such information except to the
extent disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its Obligations hereunder.
54
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee
have caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized, all as of the day and year first above written.
CHASE MANHATTAN AUTO
OWNER TRUST 1998-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Donald G. MacKelan
------------------------------------
Title: Assistant Vice President
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee
By: /s/ Marianna Stershic
------------------------------------
Title: Assistant Vice President
EXHIBIT A
SCHEDULE OF RECEIVABLES
Delivered to the Owner Trustee and the Indenture Trustee
on the Closing Date.
EXHIBIT B
FORM OF A-1 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
FACE HEREOF.
CHASE MANHATTAN AUTO OWNER TRUST 1998-A
5.549% CLASS A-1 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 1998-A, a trust organized
and existing under the laws of the State of Delaware (including any successor,
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
its 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
March 1999 Distribution Date (which is March 12, 1999). 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 on which interest has
been paid to but excluding the then current Distribution Date or, if no
interest has yet been paid, from February 18, 1998. Interest will be computed
on the basis of actual days elapsed in a 360-day year (which is 25 days in the
- --------
1/ Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
2
case of March 1999 Distribution Date). 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 Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Dated: , 199
---------- -
CHASE MANHATTAN AUTO OWNER TRUST
1998-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:
--------------------------
Name:
Title:
3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within mentioned Indenture.
Dated: , 199
------- --- -
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee
By:
-------------------------------------------
Authorized Signatory
4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.549% Class A-1 Asset Backed Notes (herein called
the "Class A-1 Notes" or the "Notes"), all issued under an Indenture dated as
of February 1, 1998 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and Norwest Bank Minnesota,
National Association, not in its individual capacity but solely as trustee
(the "Indenture Trustee", which term includes any successor Indenture Trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
The Notes and the Class A-2 Notes, Class A-3 Notes and Class
A-4 Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class A- 1 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director, employee or agent of the Indenture Trustee or the
Owner Trustee in its individual capacity, any holder of a beneficial interest
in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor
or assign of the Indenture Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the
Noteholders and the Note Owners, the Issuer, the Certificateholders and the
Certificate Owners that the Notes will be classified as indebtedness of the
Issuer for all United States tax purposes. The Noteholders, by acceptance of a
Note, agree to treat, and to take no action inconsistent with the treatment
of, the Notes as indebtedness of the Issuer for such tax purposes.
5
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 Issuer, or join in
any institution against 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.
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 Chase Manhattan Bank USA,
National Association 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 Indenture Trustee for
the sole purpose of binding the interests of the Indenture 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.
6
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
FACE HEREOF.
CHASE MANHATTAN AUTO OWNER TRUST 1998-A
5.679% CLASS A-2 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 1998-A, a trust organized
and existing under the laws of the State of Delaware (including any successor,
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
its 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-2 Notes pursuant to Section 3.1 of the Indenture; provided that the
entire unpaid principal amount of this Note shall be due and payable on the
May 2000 Distribution Date. 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 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 February 18, 1998. 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.
- --------
1/ Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
2
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 Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Dated: , 199
---------- -- -
CHASE MANHATTAN AUTO OWNER TRUST
1998-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:
---------------------------------------
Name:
Title:
3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Dated: , 199
---------- -- -
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee
By:
-----------------------------
Authorized Signatory
4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.679% Class A-2 Asset Backed Notes (herein called
the "Class A-2 Notes" or the "Notes"), all issued under an Indenture dated as
of February 1, 1998 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and Norwest Bank Minnesota,
National Association, not in its individual capacity but solely as trustee
(the "Indenture Trustee", which term includes any successor Indenture Trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
The Notes and the Class A-1 Notes, Class A-3 Notes and Class
A-4 Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class A-2 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director, employee or agent of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Indenture Trustee or the Owner Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
It is the intent of the Seller, the Servicer, the
Noteholders, the Note Owners the Issuer, the Certificateholders and the
Certificate Owners that the Notes will be classified as indebtedness of the
Issuer for all United States tax purposes. The Noteholders, by acceptance of a
Note, agree to treat, and to take no action inconsistent with the treatment
of, the Notes as indebtedness of the Issuer for such tax purposes.
5
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 Issuer, or join in
any institution against 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.
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 Chase Manhattan Bank USA,
National Association, 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 Indenture Trustee for
the sole purpose of binding the interests of the Indenture 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.
6
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
FORM OF A-3 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
FACE HEREOF.
CHASE MANHATTAN AUTO OWNER TRUST 1998-A
5.700% CLASS A-3 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 1998-A, a trust organized
and existing under the laws of the State of Delaware (including any successor,
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
its 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-3 Notes pursuant to Section 3.1 of the Indenture; provided that the
entire unpaid principal amount of this Note shall be due and payable on the
September 2001 Distribution Date. No payments of principal of the Class A-3
Notes will be made until the principal of the Class A-1 Notes and the Class
A-2 Notes have 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 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 February 18, 1998. Interest will be computed on the basis of a
360-day year of twelve 30-
- --------
1/ Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
2
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 Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Dated: , 199
------------- -- -
CHASE MANHATTAN AUTO OWNER TRUST
1998-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:
--------------------------------------
Name:
Title:
3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Dated: , 199
---------- -- -
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee
By:
----------------------------------
Authorized Signatory
4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.700% Class A-3 Asset Backed Notes (herein called
the "Class A-3 Notes" or the "Notes"), all issued under an Indenture dated as
of February 1, 1998 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and Norwest Bank Minnesota,
National Association, not in its individual capacity but solely as trustee
(the "Indenture Trustee", which term includes any successor Indenture Trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
The Notes and the Class A-1 Notes, Class A-2 Notes and Class
A-4 Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class A- 3 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director, employee or agent of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Indenture Trustee or the Owner Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
It is the intent of the Seller, the Noteholders, the Note
Owners, the Issuer, the Certificateholders and the Certificate Owners that,
the Notes will be classified as indebtedness of the Issuer for all United
States tax purposes. The Noteholders, by acceptance of a Note, agree to treat,
and to take no action inconsistent with the treatment of, the Notes as
indebtedness of the Issuer for such tax purposes.
5
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 Issuer, or join in
any institution against 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.
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 Chase Manhattan Bank USA,
National Association, 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 Indenture Trustee for
the sole purpose of binding the interests of the Indenture 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.
6
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 E
FORM OF A-4 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
FACE HEREOF.
CHASE MANHATTAN AUTO OWNER TRUST 1998-A
5.800% CLASS A-4 ASSET BACKED NOTES
Chase Manhattan Auto Owner Trust 1998-A, a trust organized
and existing under the laws of the State of Delaware (including any successor,
the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or
its 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-4 Notes pursuant to Section 3.1 of the Indenture; provided that the
entire unpaid principal amount of this Note shall be due and payable on the
earlier of the December 2002 Distribution Date and the Redemption Date, if
any, pursuant to Section 10.1 of the Indenture. No payments of principal of
the Class A-4 Notes will be made until the principal of the Class A-1 Notes,
the Class A-2 Notes and the Class A-3 Notes have 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 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
- --------
1/ Denominations of $1,000 and integral multiples of $1,000 in excess thereof.
2
yet been paid, from February 18, 1998. 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 Indenture Trustee whose name appears below by manual
signature, this Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by its Authorized Officer.
Dated: , 199
--------------- -- -
CHASE MANHATTAN AUTO OWNER TRUST
1998-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:
--------------------------------------
Name:
Title:
3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within-mentioned Indenture.
Dated: , 199
---------- -- -
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Indenture Trustee
By:
--------------------------------------
Authorized Signatory
4
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.800% Class A-4 Asset Backed Notes (herein called
the "Class A-4 Notes" or the "Notes"), all issued under an Indenture dated as
of February 1, 1998 (such Indenture, as supplemented or amended, is herein
called the "Indenture"), between the Issuer and Norwest Bank Minnesota,
National Association, not in its individual capacity but solely as trustee
(the "Indenture Trustee", which term includes any successor Indenture Trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Holders of
the Notes. The Notes are subject to all terms of the Indenture. All terms used
in this Note that are not otherwise defined herein and that are defined in the
Indenture shall have the meanings assigned to them in or pursuant to the
Indenture.
The Notes and the Class A-1 Notes, Class A-2 Notes and Class
A-3 Notes are and will be equally and ratably secured by the collateral
pledged as security therefor as provided in the Indenture.
The Issuer shall pay interest on overdue installments of
interest at the Class A-4 Interest Rate to the extent lawful.
Each Holder or Note Owner, by acceptance of a Note, or, in
the case of a Note Owner, a beneficial interest in the Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on
the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director, employee or agent of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Indenture Trustee or the Owner Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Owner Indenture 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, the Note Owners, the Issuer, the Certificateholders and the
Certificate Owners that, the Notes will be classified as indebtedness of the
Issuer for all United States tax purposes. 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.
5
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 Issuer, or join in
any institution against 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.
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 Chase Manhattan Bank USA,
National Association, 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 Indenture Trustee for
the sole purpose of binding the interests of the Indenture 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.
6
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 F
Note Depository Agreement