EXHIBIT 4.1
EXECUTION COPY
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HONDA AUTO RECEIVABLES 2000-1 OWNER TRUST,
as Issuer,
and
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
--------------------
INDENTURE
Dated as of October 1, 2000
--------------------
================================================================================
CROSS REFERENCE TABLE*
TIA Section Indenture Section
- ----------- -----------------
310 (a)(1)................................................ 6.11
(a)(2)................................................ 6.11
(a)(3)................................................ 6.10; 6.11
(a)(4)................................................ N/A**
(a)(5)................................................ 6.11
(b)................................................... 6.08; 6.11
(c)................................................... N/A
311 (a)................................................... 6.12
(b)................................................... 6.12
(c)................................................... N.A.
312 (a)................................................... 7.01
(b)................................................... 7.02
(c)................................................... 7.02
313 (a)................................................... 7.04
(b)(1)................................................ 7.04
(b)(2)................................................ 7.04
(c)................................................... 7.04; 11.05
(d)................................................... 7.04
314 (a)................................................... 7.03
(b)................................................... 11.15
(c)(1)................................................ 11.01
(c)(2)................................................ 11.01
(c)(3)................................................ 11.01
(d)................................................... 11.01
(e)................................................... 11.01
(f)................................................... 11.01
315 (a)................................................... 6.01
(b)................................................... 6.05; 11.01
(c)................................................... 6.01
(d)................................................... 6.01
(e)................................................... 5.13
316 (a)................................................... 1.01
(a)(1)(A)............................................. 5.11
(a)(1)(B)............................................. 5.12
(a)(2)................................................ N.A.
(b)................................................... 5.07
(c)................................................... N.A.
317 (a)(1)................................................ 5.03
- --------
* This Cross Reference Table shall not, for any purpose, be deemed to be part
of this Indenture.
** N.A. means Not Applicable.
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TIA Section Indenture Section
- ----------- -----------------
(a)(2)................................................ 5.03
(b)................................................... 3.03
318 (a)................................................... 11.07
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions................................................2
Section 1.02. Incorporation by Reference of Trust Indenture Act..........8
Section 1.03. Rules of Construction......................................8
ARTICLE TWO
THE NOTES
Section 2.01. Form.......................................................9
Section 2.02. Execution, Authentication and Delivery.....................9
Section 2.03. Temporary Notes...........................................10
Section 2.04. Registration, Registration of Transfer and Exchange.......10
Section 2.05. Mutilated, Destroyed, Lost or Stolen Notes................11
Section 2.06. Persons Deemed Owner......................................12
Section 2.07. Payment of Principal and Interest, Defaulted Interest.....12
Section 2.08. Cancellation..............................................13
Section 2.09. Book-Entry Notes..........................................14
Section 2.10. Notices to Clearing Agency................................14
Section 2.11. Definitive Notes..........................................15
Section 2.12. Release of Collateral.....................................15
Section 2.13. Tax Treatment.............................................15
Section 2.14. Employee Benefit Plans....................................15
ARTICLE THREE
COVENANTS
Section 3.01. Payment of Principal and Interest.........................16
Section 3.02. Maintenance of Office or Agency...........................16
Section 3.03. Money for Payments to be Held in Trust....................16
Section 3.04. Existence.................................................18
Section 3.05. Protection of Owner Trust Estate..........................18
Section 3.06. Opinions as to Owner Trust Estate.........................19
Section 3.07. Performance of Obligations; Servicing of Receivables......19
Section 3.08. Negative Covenants........................................21
Section 3.09. Annual Statement as to Compliance.........................21
Section 3.10. Issuer May Consolidate, etc., Only on Certain Terms.......21
Section 3.11. Successor or Transferee...................................23
Section 3.12. No Other Business.........................................23
Section 3.13. No Borrowing..............................................24
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Section 3.14. Servicer's Obligations....................................24
Section 3.15. Guarantees, Loans, Advances and Other Liabilities.........24
Section 3.16. Capital Expenditures......................................24
Section 3.17. Removal of Administrator..................................24
Section 3.18. Restricted Payments.......................................24
Section 3.19. Notice of Events of Default...............................24
Section 3.20. Further Instruments and Acts..............................24
Section 3.21. Compliance with Laws......................................25
Section 3.22. Amendments of Sale and Servicing Agreement and
Trust Agreement..........................................25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture...................25
Section 4.02. Application of Trust Money................................26
Section 4.03. Repayment of Monies Held by Paying Agent..................26
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.........................................26
Section 5.02. Acceleration of Maturity, Rescission and Annulment........27
Section 5.03. Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee....................................28
Section 5.04. Remedies, Priorities......................................30
Section 5.05. Optional Preservation of the Receivables..................32
Section 5.06. Limitation of Suits.......................................32
Section 5.07. Unconditional Rights of Noteholders to Receive
Principal and Interest..................................33
Section 5.08. Restoration of Rights and Remedies........................33
Section 5.09. Rights and Remedies Cumulative............................33
Section 5.10. Delay or Omission Not a Waiver............................33
Section 5.11. Control by Noteholders....................................33
Section 5.12. Waiver of Past Defaults...................................34
Section 5.13. Undertaking for Costs.....................................34
Section 5.14. Waiver of Stay or Extension Laws..........................35
Section 5.15. Action on Notes...........................................35
Section 5.16. Performance and Enforcement of Certain Obligations........35
ARTICLE SIX
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee...............................36
Section 6.02. Rights of Indenture Trustee...............................37
Section 6.03. Individual Rights of Indenture Trustee....................38
Section 6.04. Indenture Trustee's Disclaimer............................38
Section 6.05. Notice of Defaults........................................38
Section 6.06. Reports by Indenture Trustee to Holders...................38
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Section 6.07. Compensation and Indemnity................................38
Section 6.08. Replacement of Indenture Trustee..........................39
Section 6.09. Successor Indenture Trustee by Merger.....................40
Section 6.10. Appointment of Co-Trustee or Separate Trustee.............40
Section 6.11. Eligibility, Disqualification.............................42
Section 6.12. Preferential Collection of Claims Against Issuer..........42
Section 6.13. Representations and Warranties of Indenture Trustee.......42
ARTICLE SEVEN
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Indenture Trustee Names and
Addresses of Noteholders................................43
Section 7.02. Preservation of Information; Communications, Reports
and Certain Documents to Noteholders....................43
Section 7.03. Reports by Issuer.........................................43
Section 7.04. Reports by Indenture Trustee..............................44
ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money.......................................44
Section 8.02. Accounts..................................................45
Section 8.03. General Provisions Regarding Accounts.....................46
Section 8.04. Release of Owner Trust Estate.............................46
Section 8.05. Opinion of Counsel........................................47
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders....47
Section 9.02. Supplemental Indentures With Consent of Noteholders.......48
Section 9.03. Execution of Supplemental Indentures......................50
Section 9.04. Effect of Supplemental Indenture..........................50
Section 9.05. Conformity with Trust Indenture Act.......................50
Section 9.06. Reference in Notes to Supplemental Indentures.............50
ARTICLE TEN
REDEMPTION OF NOTES
Section 10.01. Redemption................................................50
Section 10.02. Form of Redemption Notice.................................51
Section 10.03. Notes Payable on Redemption Date..........................51
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ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions, etc.................51
Section 11.02. Form of Documents Delivered to Indenture Trustee..........53
Section 11.03. Acts of Noteholders.......................................54
Section 11.04. Notices, etc., to Indenture Trustee, Issuer and
Rating Agencies.........................................54
Section 11.05. Notices to Noteholders; Waiver............................55
Section 11.06. Alternate Payment and Notice Provisions...................56
Section 11.07. Conflict with Trust Indenture Act.........................56
Section 11.08. Effect of Headings and Table of Contents..................56
Section 11.09. Successors and Assigns....................................56
Section 11.10. Separability..............................................56
Section 11.11. Benefits of Indenture.....................................56
Section 11.12. Legal Holidays............................................57
Section 11.13. Governing, Law............................................57
Section 11.14. Counterparts..............................................57
Section 11.15. Recording of Indenture....................................57
Section 11.16. Trust Obligation..........................................57
Section 11.17. No Petition...............................................57
Section 11.18. Inspection................................................58
SCHEDULES
Schedule A - Schedule of Receivables.....................................SA-1
EXHIBITS
Exhibit A-1 - Form of Note ...............................................A-1
Exhibit B-1 - Form of Note Depository Agreement...........................B-1
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This Indenture, dated as of October 1, 2000, is between Honda Auto
Receivables 2000-1 Owner Trust, a Delaware business trust (the "Issuer"), and
U.S. Bank National Association, a national banking association, as indenture
trustee (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
6.71125% Asset Backed Notes (the "Class A-1 Notes"), Class A-2 6.650% Asset
Backed Notes (the "Class A-2 Notes"), Class A-3 6.620% Asset Backed Notes
(the "Class A-3 Notes") and Class A-4 6.670% 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, on behalf of and for the benefit of the Holders of the Notes, without
recourse, all of the Issuer's right, title and interest in, to and under (i)
the Receivables and all monies due thereon and received thereon on and after
October 1, 2000; (ii) the security interests in the Financed Vehicles; (iii)
any proceeds of any physical damage insurance policies covering the Financed
Vehicles and in any proceeds of any credit life or credit disability
insurance policies relating to the Receivables or the Obligors; (iv) any
proceeds of Dealer Recourse; (v) the right to realize upon any property
(including the right to receive future Liquidation Proceeds) that shall have
secured a Receivable and have been repossessed by or on behalf of the Issuer;
(vi) all funds on deposit from time to time in the Accounts, including the
Reserve Fund Initial Deposit and the Yield Supplement Account Deposit and in
all investment income and proceeds thereof; (vii) the rights of the Seller
under the Receivables Purchase Agreement and the rights of the Issuer under
the Sale and Servicing Agreement; (viii) any Servicer Letter of Credit; and
(ix) 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 thereof, voluntary or involuntary, into cash or other
liquid property, all cash proceeds, accounts, accounts receivable, notes,
drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds
of any of the foregoing as each such term is defined in Section 1.01
(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, and to
secure compliance with the provisions of this Indenture, all as provided in
this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the Holders
of the Notes, acknowledges such Grant, accepts the trusts under this
Indenture in accordance with the provisions of this Indenture and agrees to
perform its duties as required in this Indenture to the best of its ability
to the end that the interests of the Holders of the Notes may be adequately
and effectively protected.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. DEFINITIONS.
(a) Except as otherwise specified herein or as the context may
otherwise require, the following terms have the respective meanings set forth
below for all purposes of this Indenture.
"ACT" shall have the meaning specified in Section 11.03(a).
"ADMINISTRATION AGREEMENT" means the Administration Agreement, dated
as of October 1, 2000, among the Administrator, the Issuer, the Depositor and
the Indenture Trustee.
"ADMINISTRATOR" means AHFC or any successor Administrator under the
Administration Agreement.
"AHFC" means American Honda Finance Corporation, and its successors.
"AUTHORIZED OFFICER" means, with respect to the Issuer, any officer
of the Owner Trustee who is authorized to act for the Owner Trustee in
matters relating to the Issuer and who is identified on the list of
Authorized Officers delivered by the Owner Trustee to the Indenture Trustee
on the Closing Date (as such list may be modified or supplemented from time
to time thereafter) and, so long as the Administration Agreement is in
effect, any Vice President or more senior officer of the Administrator who is
authorized to act for the Administrator in matters relating to the Issuer and
to be acted upon by the Administrator pursuant to the Administration
Agreement and who is identified on the list of Authorized Officers delivered
by the Administrator to the Indenture Trustee on the Closing Date (as such
list may be modified or supplemented from time to time thereafter).
"BOOK-ENTRY NOTES" means a beneficial interest in the Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.09.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a
day on which banking institutions or trust companies in Los Angeles,
California, Wilmington, Delaware, Chicago, Illinois or New York, New York are
authorized or obligated by law, regulation, executive order or governmental
decree to remain closed.
"BENEFIT PLAN" means (a) employee benefit plans (as defined in
Section 3(3) of ERISA) that are subject to Title I of ERISA, (b) plans
described in Section 4975(e)(1) of the Code, including individual retirement
accounts or Keogh Plans, and (c) any entities whose underlying assets include
plan assets by reason of a plan's investment in such entities.
"CLASS" means all Notes whose form is identical except for variation
in denomination, principal amount or owner.
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"CLASS A-1 INTEREST RATE" means 6.71125% per annum (computed on the
basis of the actual number of days in the related Interest Accrual Period
divided by 360).
"CLASS A-1 NOTES" means the Class A-1 6.71125% Asset Backed Notes,
substantially in the form of Exhibit A.
"CLASS A-2 INTEREST RATE" means 6.650% per annum (computed on the
basis of a 360-day year consisting of twelve 30-day months).
"CLASS A-2 NOTES" means the Class A-2 6.650% Asset Backed Notes,
substantially in the form of Exhibit A.
"CLASS A-3 INTEREST RATE" means 6.620% per annum (computed on the
basis of a 360-day year consisting of twelve 30-day months).
"CLASS A-3 NOTES" means the Class A-3 6.620% Asset Backed Notes,
substantially in the form of Exhibit A.
"CLASS A-4 INTEREST RATE" means 6.670% per annum (computed on the
basis of a 360-day year consisting of twelve 30-day months).
"CLASS A-4 NOTES" means the Class A-4 6.670% Asset Backed Notes,
substantially in the form of Exhibit A.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act, which initially shall be
The Depository Trust Company.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"CLOSING DATE" means October 25, 2000.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"COLLATERAL" has the meaning specified in the Granting Clause of
this Indenture.
"CORPORATE TRUST OFFICE" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is
located at One Illinois Center, 111 E. Wacker Drive, Suite 3000, Chicago,
Illinois 60601 Attention: Honda 2000-1, or at such other address as the
Indenture Trustee may designate from time to time by notice to the
Noteholders and the Issuer, or the principal corporate trust office of any
successor Indenture Trustee at the address designated by such successor
Indenture Trustee by notice to the Noteholders and the Issuer.
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"DEFAULT" means any occurrence that is, or with notice or the lapse
of time or both would become, an Event of Default.
"DEFINITIVE NOTES" shall have the meaning specified in Section 2.11.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"EVENT OF DEFAULT" shall have the meaning specified in Section 5.01.
"EXECUTIVE OFFICER" means, with respect to any corporation or
depository institution, the Chief Executive Officer, Chief Operating Officer,
Chief Financial Officer, President, Executive Vice President, any Vice
President, the Secretary or the Treasurer of such corporation or depository
institution; and with respect to any partnership, any general partner thereof.
"GRANT" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create and grant a lien upon and a
security interest in and a right of set-off against, deposit, set over and
confirm pursuant to this Indenture. A Grant of the Collateral or of any other
agreement or instrument shall include all rights, powers and options (but
none of the obligations) of the granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give
receipt for principal and interest payments in respect of the Collateral and
all other monies payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights
and options, to bring Proceedings in the name of the granting party or
otherwise, and generally to do and receive anything that the granting party
is or may be entitled to do or receive thereunder or with respect thereto.
"HOLDER" means the Person in whose name a Note is registered on the
Note Register.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time.
"INDENTURE TRUSTEE" means U.S. Bank National Association, a national
banking association, as Indenture Trustee under this Indenture, or any
successor Indenture Trustee under this Indenture.
"INDEPENDENT" means, when used with respect to any specified Person,
that the Person (i) is in fact independent of the Issuer, any other obligor
on the Notes, the Seller and any of their respective Affiliates, (ii) does
not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any of their
respective Affiliates and (iii) is not connected with the Issuer, any such
other obligor, the Seller or any of their respective Affiliates as an
officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
"INDEPENDENT CERTIFICATE" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.01, made
by an Independent appraiser or other expert appointed by an Issuer Order and
approved by the Indenture Trustee in the exercise of reasonable care, and
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such opinion or certificate shall state that the signer has read the
definition of "Independent" in this Indenture and that the signer is
Independent within the meaning thereof.
"INTEREST ACCRUAL PERIOD" means, with respect to any Payment Date
and (i) the Class A-1 Notes, the period from and including the immediately
preceding Payment Date (or, in the case of the first Payment Date, the
Closing Date) to but excluding such Payment Date and (ii) the Class A-2
Notes, Class A-3 Notes and Class A-4 Notes, the period from and including the
fifteenth day of the prior month (or, in the case of the first Payment Date,
the Closing Date) to but excluding the fifteenth day of the month of such
Payment Date.
"INTEREST RATE" means the Class A-1 Interest Rate, the Class A-2
Interest Rate, the Class A-3 Interest Rate or the Class A-4 Interest Rate, as
applicable.
"ISSUER" means Honda Auto Receivables 2000-1 Owner Trust until a
successor replaces it and, thereafter, means the successor and, for purposes
of any provision contained herein and required by the TIA, each other obligor
on the Notes.
"ISSUER ORDER" or "ISSUER REQUEST" means a written order or request
signed in the name of the Issuer by any Authorized Officer and delivered to
the Indenture Trustee.
"NOTE DEPOSITORY AGREEMENT" means the agreement dated October 24,
2000, among the Issuer, the Indenture Trustee and The Depository Trust
Company, as the initial Clearing Agency, relating to the Notes, substantially
in the form of Exhibit B hereto.
"NOTEHOLDER" or "HOLDER" means the Person in whose name a Note is
registered on the Note Register.
"NOTE OWNER" means, with respect to a Book-Entry Note, the Person
who is the beneficial owner of such Book-Entry Note, as reflected on the
books of the Clearing Agency or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant
or as an indirect participant, in each case in accordance with the rules of
such Clearing Agency).
"NOTE REGISTER" and "Note Registrar" shall have the respective
meanings specified in Section 2.04.
"NOTES" means the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes
and the Class A-4 Notes.
"OFFICER'S CERTIFICATE" means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01, and delivered
to the Indenture Trustee. Unless otherwise specified, any reference in this
Indenture to an Officer's Certificate shall be to an Officer's Certificate of
the Issuer.
"OPINION OF COUNSEL" means one or more written opinions of counsel
who may, except as otherwise expressly provided in this Indenture, be an
employee of or counsel to the Issuer and
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who shall be satisfactory to the Indenture Trustee, and which opinion or
opinions shall be addressed to the Indenture Trustee as Indenture Trustee,
shall comply with any applicable requirements of Section 11.01 and shall be
in form and substance satisfactory to the Indenture Trustee.
"OUTSTANDING" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money
in the necessary amount has been theretofore deposited with the
Indenture Trustee or any Paying Agent in trust for the Holders of
such Notes (provided, however, that if such Notes are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision for such notice has been made,
satisfactory to the Indenture Trustee); and
(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture
unless proof satisfactory to the Indenture Trustee is presented that
any such Notes are held by a bona fide Protected Purchaser;
provided, that in determining whether the Holders of the requisite
Outstanding Amount have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any other Basic Document, Notes
owned by the Issuer, any other obligor upon the Notes, the Seller or any of
their respective Affiliates shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Indenture Trustee shall
be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes that the Indenture Trustee
knows to be so owned shall be so disregarded. Notes so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Indenture Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not the Issuer,
any other obligor upon the Notes, the Seller or any Affiliate of any of their
respective Affiliates.
"OUTSTANDING AMOUNT" means, except as otherwise indicated by the
context, the aggregate principal amount of all Notes of all Classes
Outstanding at the date of determination.
"OWNER TRUST ESTATE" means the Grant of the Collateral to the
Indenture Trustee under this Indenture, including all proceeds thereof.
"OWNER TRUSTEE" means Bankers Trust (Delaware), not in its
individual capacity but solely as Owner Trustee under the Trust Agreement, or
any successor Owner Trustee under the Trust Agreement.
"PAYING AGENT" means the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee specified in
Section 6.11 and is authorized by the Issuer to
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make payments to and distributions from the Collection Account and the Note
Distribution Account, including payments of principal of or interest on the
Notes on behalf of the Issuer.
"PREDECESSOR NOTE" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced
by such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.05 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"PROCEEDING" means any suit in equity, action at law or other
judicial or administrative proceeding.
"PROTECTED PURCHASER" shall have the meaning set forth in Article 8
of the UCC.
"RATING AGENCY CONDITION" means, with respect to any action, that
each Rating Agency shall have been given ten days (or such shorter period as
is acceptable to each Rating Agency) prior notice thereof and that each
Rating Agency shall have notified the Seller, the Servicer, the Indenture
Trustee and the Owner Trustee in writing that such action will not result in
a qualification, reduction or withdrawal of the then current rating of the
Notes.
"RECORD DATE" means, with respect to a Payment Date or Redemption
Date, the close of business on the day immediately preceding such Payment
Date or Redemption Date or, if Definitive Notes have been issued, the close
of business on the last day of the month immediately preceding the month in
which such Payment Date or Redemption Date occurs.
"REDEMPTION DATE" means, in the case of a redemption of the Notes
pursuant to Section 10.01, the Payment Date specified by the Servicer or the
Issuer pursuant to Section 10.01.
"REDEMPTION PRICE" means, in the case of a redemption of the Notes
pursuant to Section 10.01, an amount equal to the unpaid principal amount of
the Notes redeemed plus accrued and unpaid interest thereon at the weighted
average of the Interest Rates for each Class of Notes being so redeemed to
but excluding the Redemption Date.
"REGISTERED HOLDER" means the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"SALE AND SERVICING AGREEMENT" means the Sale and Servicing
Agreement, dated as of October 1, 2000, between the Issuer, the Seller and
the Servicer.
"SCHEDULE OF RECEIVABLES" means the list of the Receivables set
forth in Schedule A hereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SERVICER" means American Honda Finance Corporation, in its capacity
as servicer under the Sale and Servicing Agreement, and any Successor
Servicer thereunder.
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"STATE" means any one of the 50 states of the United States or the
District of Columbia.
"SELLER" means American Honda Receivables Corp., in its capacity as
seller under the Sale and Servicing Agreement, and its successors.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939
as in force on the date hereof, unless otherwise specifically provided.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from
time to time.
"UNITED STATES" means the United States of America.
(b) Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Sale and Servicing
Agreement.
Section 1.02. 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 1.03. RULES OF CONSTRUCTION. Unless the context otherwise
requires: (i) a term has the meaning assigned to it; (ii) an accounting term
not otherwise defined has the meaning assigned to it in accordance with
generally accepted accounting principles as in effect from time to time;
(iii) "or" is not exclusive; (iv) "including" means including without
limitation; (v) words in the singular include the plural and words in the
plural include the singular; (vi) any agreement, instrument or statute
defined or referred to herein or in any instrument or certificate delivered
in connection herewith means such agreement, instrument or statute as from
time to time amended, modified or supplemented and includes (in the case of
agreements or instruments) references to
8
all attachments thereto and instruments incorporated therein; (vii)
references to a Person are also to its permitted successors and assigns;
(viii) the words "hereof', "herein" and "hereunder" and words of similar
import when used in this Indenture shall refer to this Indenture as a whole
and not to any particular provision of this Indenture; (ix) the term
"proceeds" shall have the meaning set forth in the applicable UCC; and (x)
Section, subsection and Schedule references contained in this Indenture are
references to Sections, subsections and Schedules in or to this Indenture
unless otherwise specified.
ARTICLE TWO
THE NOTES
Section 2.01. 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 certificate of authentication, shall be in substantially
the form set forth in Exhibit A, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any
Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.
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.
Each Note shall be dated the date of its authentication. The terms
of the Notes are the terms of this Indenture.
Section 2.02. EXECUTION, AUTHENTICATION AND DELIVERY. The Notes
shall be executed on behalf of the Issuer by any of its Authorized Officers.
The signature of any such Authorized Officer on the Notes may be manual or
facsimile. Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.
The Indenture Trustee shall, upon Issuer Order, authenticate and
deliver for original issue the following aggregate principal amount of Notes:
(i) $298,000,000 of Class A-1 Notes, (ii) $240,000,000 of Class A-2 Notes,
(iii) $386,000,000 of Class A-3 Notes and (iv) $129,270,000 of Class A-4
Notes. The 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 respective amounts except as provided in Section 2.05.
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Each Note shall be dated the date of its authentication. The Notes
shall be issuable as registered Notes in minimum denominations of $1,000 and
in integral multiples of $ 1,000 in excess thereof.
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 by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
Section 2.03. TEMPORARY NOTES. Pending the preparation of Definitive
Notes, the Issuer may execute, and upon receipt of an Issuer Order the
Indenture Trustee shall authenticate and deliver, temporary Notes that 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 shall cause Definitive
Notes to be prepared without unreasonable delay. After the preparation of
Definitive Notes, the temporary Notes shall be exchangeable for Definitive
Notes upon surrender of the temporary Notes at the office or agency of the
Issuer to be maintained as provided in Section 3.02, without charge to the
related 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 tenor and 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 2.04. REGISTRATION, 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 Issuer shall
provide for the registration of Notes and the registration of transfers of
Notes. The Indenture Trustee initially shall be the "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided. Upon
any resignation of any Note Registrar, the Issuer shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the duties
of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register, 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 rely upon a certificate executed on behalf of the Note Registrar by
an Executive Officer thereof as to the names and addresses of the Holders of
the Notes and the principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the
office or agency of the Issuer to be maintained as provided in Section 3.02,
provided that the requirements of Section 8-401 of the UCC are met, the
Issuer shall execute, and the Indenture Trustee shall authenticate
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and the Noteholder shall obtain from the Indenture Trustee, in the name of
the designated transferee or transferees, one or more new Notes of the same
Class in any authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes
of the same Class in any authorized denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office
or agency. Whenever any Notes are so surrendered for exchange, provided that
the requirements of Section 8-401 of the UCC are met (as determined by the
Issuer), the Issuer shall execute, and the Indenture Trustee shall
authenticate and the Noteholder shall obtain from the Indenture Trustee, the
Notes which the Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument
of transfer in form satisfactory to the Indenture Trustee duly executed by,
the Holder thereof or such Holder's attorney duly authorized in writing, with
such signature guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Exchange Act.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer or the Indenture Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 2.03 or 9.06 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 Notes selected for redemption or of any Note for a
period of 15 days preceding the due date for any payment with respect to the
Note.
Section 2.05. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, (ii) there is delivered to the Indenture Trustee such
security or indemnity as may be required by it to hold the Issuer and the
Indenture Trustee harmless and (iii) the requirements of Section 8-405 of the
UCC are met, then, in the absence of notice to the Issuer, the Note Registrar
or the Indenture Trustee that such Note has been acquired by a Protected
Purchaser, the Issuer shall execute, and upon its request the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Note, a replacement Note of the
same Class; provided, however, that if any such destroyed, lost or stolen
Note, but not a mutilated Note, shall have become or within
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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 Protected Purchaser of the original Note in lieu
of which such replacement Note was issued presents for payment such original
Note, the Issuer and the Indenture Trustee shall be entitled to recover such
replacement Note (or such payment) from 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
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or
expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer or the Indenture Trustee 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 or the Note
Registrar) connected therewith.
Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute
an original additional contractual obligation of the Issuer, whether or not
the mutilated, destroyed, lost or stolen Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 2.06. PERSONS DEEMED OWNER. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and
any of their respective agents may treat the Person in whose name any Note is
registered (as of the day of determination) as the owner of such Note for the
purpose of receiving payments of principal of and interest, if any, on such
Note and for all other purposes whatsoever, whether or not such Note be
overdue, and none of the Issuer, the Indenture Trustee or any of their
respective agents shall be affected by notice to the contrary.
Section 2.07. PAYMENT OF PRINCIPAL AND INTEREST, DEFAULTED INTEREST.
(a) Each Class of Notes shall accrue interest at the related
Interest Rate, and such interest shall be payable on each Payment Date as
specified therein, subject to Section 3.01. Any installment of interest or
principal, if any, payable on any Note that is punctually paid or duly
provided for by the Issuer on the applicable Payment Date shall be paid to
the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the 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
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2.12, with respect to 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 and except for the final installment of
principal payable with respect to such Note on a Payment Date, a Redemption
Date or on the related Final Scheduled Payment Date, as the case may be (and
except for the Redemption Price for any Note called for redemption pursuant
to Section 10.01), which shall be payable as provided below. The funds
represented by any such checks returned undelivered shall be held in
accordance with Section 3.03.
(b) The principal of each Note shall be payable as provided in
Section 8.02(d) hereof. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not previously
paid, on the related Final Payment Date or the date on which an Event of
Default shall have occurred and be continuing, if the Indenture Trustee or
Holders of the Notes representing not less than a majority of the Outstanding
Amount have declared the Notes to be immediately due and payable in the
manner provided in Section 5.02. 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 5 Business Days preceding the Payment
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 mailed or
transmitted by facsimile prior to such final Payment Date 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. Notices in
connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.02. In addition, the Administrator shall notify each
Rating Agency upon the final payment of interest and principal of each Class
of Notes, and upon the termination of the Trust, in each case pursuant to
Section 1.02(a)(iii) of the Administration Agreement.
(c) If the Issuer defaults in a payment of interest on the Notes,
the Issuer shall pay defaulted interest (plus interest on such defaulted
interest to the extent lawful) at the applicable Interest Rate in any lawful
manner. The Issuer may pay such defaulted interest to the Persons who are
Noteholders on a subsequent special record date, which date shall be at least
five Business Days prior to the payment date. The Issuer shall fix or cause
to be fixed any such special record date and related payment date, and, at
least 15 days before any such special record date, the Issuer shall mail to
each Noteholder a notice that states the special record date, the payment
date and the amount of defaulted interest to be paid.
Section 2.08. CANCELLATION. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture
Trustee and shall be promptly cancelled by the Indenture Trustee. The Issuer
may at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Indenture Trustee. 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 Indenture Trustee in accordance with its
standard retention or disposal policy as in effect at the time unless the
Issuer shall direct by an Issuer Order that they be destroyed or
13
returned to it; provided, that such Issuer Order is timely and the Notes have
not been previously disposed of by the Indenture Trustee.
Section 2.09. BOOK-ENTRY NOTES. The Notes, upon original issuance,
will be issued in the form of a typewritten Note or Notes representing the
Book-Entry Notes, to be delivered to the Indenture Trustee, as agent for The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of,
the Issuer. The Book-Entry Notes shall be registered initially 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 2.11.
Unless and until definitive, fully registered Notes (the "Definitive Notes")
have been issued to such Note Owners pursuant to Section 2.11:
(i) the provisions of this Section shall be in full force
and effect;
(ii) the Note Registrar and the Indenture Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on the
Notes and the giving of instructions or directions hereunder) as the
sole holder of the Notes, and shall have no obligation to the Note
Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Indenture, the provisions
of this Section shall control;
(iv) the rights of Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Note Owners and the
Clearing Agency and/or the Clearing Agency Participants. Pursuant to
the Note Depository Agreement, unless and until Definitive Notes are
issued pursuant to Section 2.11, the 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
(v) whenever this Indenture requires or permits actions to
be taken based upon instructions or directions of Holders of Notes
evidencing a specified percentage of the Outstanding Amount, the
Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from
Note Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the
beneficial interest in the Notes and has delivered such instructions
to the Indenture Trustee.
Section 2.10. 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 such Note Owners pursuant to
Section 2.11, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to such Note Owners.
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Section 2.11. DEFINITIVE NOTES. If (i)(A) the Administrator advises
the Indenture Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to
the Book-Entry Notes and (B) neither the Indenture Trustee nor the
Administrator is able to locate a qualified successor, (ii) the Administrator
at its option advises the Indenture Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after
the occurrence of an Event of Default or a Servicer Default, Owners of
Book-Entry Notes representing beneficial interests aggregating at least a
majority of the Outstanding Amount of such Notes advise the Indenture Trustee
and the Clearing Agency Participants through the Clearing Agency, in writing
that the continuation of a book-entry system through the Clearing Agency is
no longer in the best interests of such Note Owners, then, in each case, the
Indenture Trustee shall notify all Note Owners of the related Class of Notes
through the Clearing Agency of the occurrence of any such event and of the
availability of Definitive Notes of the related Class of Notes to Note Owners
requesting the same. Upon surrender to the Indenture Trustee of the Note or
Notes representing the Book-Entry Notes by the Clearing Agency, accompanied
by registration instructions, the Issuer shall execute and the Indenture
Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency. None of the Issuer, the Note Registrar
or the Indenture Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on, such instructions. Upon the issuance of Definitive Notes of a Class, the
Indenture Trustee shall recognize the Holders of the Definitive Notes as
Noteholders hereunder.
Section 2.12. RELEASE OF COLLATERAL. Subject to Section 11.01 and
the terms of the other Basic Documents, the Indenture Trustee shall release
property from the lien of this Indenture only upon receipt of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and
Independent Certificates in accordance with TIA Sections 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 2.13. TAX TREATMENT. The Issuer has entered into this
Indenture, and the Notes will be issued, with the intention that, for all
purposes including federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Owner Trust Estate. The Issuer, by entering into this
Indenture, and each Noteholder, by its acceptance of a Note (and each Note
Owner by its acceptance of an interest in the applicable Book-Entry Note),
agree to treat the Notes for all purposes including federal, state and local
income, single business and franchise tax purposes as indebtedness of the
Issuer.
Section 2.14. EMPLOYEE BENEFIT PLANS. A fiduciary of a Benefit Plan
purchasing any Notes with the assets of a Benefit Plan is deemed to represent
that the acquisition and holding of such Notes will be covered by a U.S.
Department of Labor prohibited transaction class exemption.
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ARTICLE THREE
COVENANTS
Section 3.01. PAYMENT OF PRINCIPAL AND INTEREST. The Issuer will
duly and punctually pay the principal of and interest, if any, on the Notes
in accordance with the terms of the Notes and this Indenture. Without
limiting the foregoing, subject to Section 8.02(c), the Issuer will cause to
be distributed all amounts on deposit in the Note Distribution Account on a
Payment Date deposited therein in accordance with Section 8.02(d). 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 3.02. MAINTENANCE OF OFFICE OR AGENCY. The Issuer will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where Notes may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Issuer in respect of
the Notes and this Indenture may be served. The Issuer hereby initially
appoints the Indenture Trustee to serve as its agent for the foregoing
purposes. The Issuer 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, provided
that the Indenture Trustee shall not serve as an agent or office for the
purpose of service of process on behalf of the Issuer.
Section 3.03. MONEY FOR PAYMENTS TO BE HELD IN TRUST. As provided in
Sections 5.04 and 8.02, 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 8.02(c) shall
be made on behalf of the Issuer by the Indenture Trustee or by another Paying
Agent, and no amounts so withdrawn from the Collection Account and the Note
Distribution Account for payments of Notes shall be paid over to the Issuer
except as provided in this Section.
On or before the Business Day immediately preceding each Payment
Date and Redemption Date, the Issuer shall deposit or cause to be deposited
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) shall promptly notify the Indenture Trustee in writing
of its action or failure so to act.
The Issuer will cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in
which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section, that such Paying Agent will:
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(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by
the Issuer (or any other obligor upon the Notes) of which it has
actual knowledge in the making of any payment required to be made
with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in trust by
such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay
to the Indenture Trustee all sums held by it in trust for the
payment of Notes if at any time it ceases to meet the standards
required to be met by a Paying Agent at the time of its appointment;
and
(v) comply with all requirements of the Code with respect
to the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Subject to applicable laws with respect to escheat of funds, any
money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed
for two years after such amount has become due and payable shall be
discharged from such trust and be paid to the Issuer on Issuer Request; and
the Holder of such Note shall thereafter, as an unsecured general creditor,
look only to the Issuer for payment thereof (but only to the extent of the
amounts so paid to the Issuer), and all liability of the Indenture Trustee or
such Paying Agent with respect to such trust money shall thereupon cease;
provided, however, that the Indenture Trustee or such Paying Agent, before
being required to make any such repayment, shall at the expense and written
direction of the Issuer cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to or for the account of the Issuer. The
Indenture Trustee shall also adopt and employ, at the expense and written
direction of the Issuer, any other reasonable means of notification of such
repayment (including, but not limited to, mailing notice of such
17
repayment to Holders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in monies due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
Section 3.04. EXISTENCE. 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 Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States,
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 Owner Trust Estate, including all
licenses required under the Pennsylvania Motor Vehicle Sales Finance Act in
connection with this Agreement and the other Basic Documents and the
transactions contemplated hereby and thereby until such time as the Issuer
shall terminate in accordance with the terms hereof.
Section 3.05. PROTECTION OF OWNER TRUST ESTATE. The Issuer intends
the security interest Granted pursuant to this Indenture in favor of the
Indenture Trustee on behalf of the Noteholders to be prior to all other liens
in respect of the Owner Trust Estate, and the Issuer shall take all actions
necessary to obtain and maintain, for the benefit of the Indenture Trustee on
behalf of the Noteholders, a first lien on and a first priority, perfected
security interest in the Owner Trust Estate. The Issuer will from time to
time execute and deliver all such supplements and amendments hereto and all
such financing statements, continuation statements, instruments of further
assurance and other instruments, all as prepared by the Administrator and
delivered to the Issuer, and will take such other action necessary or
advisable to:
(i) Grant more effectively any portion of the Owner Trust
Estate;
(ii) maintain or preserve the lien and security interest
(and the priority thereof) created by this Indenture or carry out
more effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of
any Grant made or to be made by this Indenture;
(iv) enforce any of the Collateral;
(v) preserve and defend title to the Owner Trust Estate and
the rights of the Indenture Trustee and the Noteholders in such
Owner Trust Estate against the claims of all persons and parties; or
(vi) pay all taxes or assessments levied or assessed upon
the Owner Trust Estate when due.
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Section 3.06. OPINIONS AS TO OWNER TRUST ESTATE.
(a) Promptly after the execution and delivery of this Indenture,
the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel to
the effect that, in the opinion of such counsel, either (i) all financing
statements and continuation statements have been executed and filed that are
necessary to create and continue the Indenture Trustee's first priority
perfected security interest in the collateral for the benefit of the
Noteholders, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (ii) no such action
shall be necessary to perfect such security interest.
(b) Within 90 days after the beginning of each fiscal year of the
Issuer beginning with the first fiscal year beginning more than three months
after the Cutoff Date, the Issuer shall furnish to the Indenture Trustee an
Opinion of Counsel, dated as of a date during such 90-day period, to the
effect that, in the opinion of such counsel, either (i) all financing
statements and continuation statements have been executed and filed that are
necessary to create and continue the Indenture Trustee's first priority
perfected security interest in the collateral for the benefit of the
Noteholders, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (ii) no such action
shall be necessary to perfect such security interest.
Section 3.07. 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 Owner 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 expressly provided in this Indenture, the 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 and will cause the Administrator to,
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 Owner Trust Estate, including but not limited
to filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of this Indenture
and the other Basic Documents in accordance with and within the time periods
provided for herein and therein. Except as otherwise expressly provided
therein, the Issuer shall not waive, amend, modify, supplement or terminate
any Basic Document or any provision thereof without the consent of the
Indenture Trustee or the Holders of at least a majority of the Outstanding
Amount or such greater percentage as may be specified in the particular
provision.
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(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Default, the Issuer shall promptly provide written notice to a
Responsible Officer of the Indenture Trustee and to each Rating Agency
thereof, and shall specify in such notice the action, if any, the Issuer is
taking with respect of such default. If a Servicer Default shall arise from
the failure of the Servicer to perform any of its duties or obligations under
the Sale and Servicing Agreement with respect to the Receivables, the Issuer
shall take all reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers pursuant to
Section 7.01 of the Sale and Servicing Agreement, the Indenture Trustee shall
appoint a Successor Servicer, and such Successor Servicer shall accept its
appointment by a written assumption in a form acceptable to the Indenture
Trustee. In the event that a Successor Servicer has not been appointed and
accepted its appointment at the time when the Servicer ceases to act as
Servicer, the Indenture Trustee without further action shall automatically be
appointed the Successor Servicer. The Indenture Trustee may resign as the
Servicer by giving written notice of such resignation to the Issuer and in
such event will be released from such duties and obligations, such release
not to be effective until the date a new servicer enters into a servicing
agreement as provided below. Upon delivery of any such notice to the Issuer,
the Issuer shall obtain a new servicer as the Successor Servicer under the
Sale and Servicing Agreement. Any Successor Servicer other than the Indenture
Trustee shall (i) be an established financial institution having a net worth
of not less than $50,000,000 and whose regular business includes the
servicing of motor vehicle receivables and (ii) enter into a servicing
agreement with the Issuer and the Seller having substantially the same
provisions as the provisions of the Sale and Servicing Agreement applicable
to the Servicer. If within 30 days after the delivery of the notice referred
to above, the Issuer shall not have obtained such a new servicer, the
Indenture Trustee may appoint, or may petition a court of competent
jurisdiction to appoint, a Successor Servicer. In connection with any such
appointment, the Issuer may make such arrangements for the compensation of
such successor as it and such successor shall agree, subject to the
limitations set forth below and in the Sale and Servicing Agreement, and in
accordance with Section 7.02 of the Sale and Servicing Agreement, the Issuer
and the Seller shall enter into an agreement with such successor for the
servicing of the Receivables (such agreement to be in form and substance
satisfactory to the Indenture Trustee). If the Indenture Trustee shall
succeed to the Servicer's duties as servicer of the Receivables as provided
herein, it shall do so in its individual capacity and not in its capacity as
Indenture Trustee and, accordingly, the provisions of Article Six shall be
inapplicable to the Indenture Trustee in its duties as the successor to the
Servicer and the servicing of the Receivables. In case the Indenture Trustee
shall become successor to the Servicer under the Sale and Servicing
Agreement, the Indenture Trustee shall be entitled to appoint as Servicer any
one of its Affiliates or agents, provided that it shall be fully liable for
the actions and omissions of such Affiliate or agent in such capacity as
Successor Servicer.
(f) Upon any termination of the Servicer's rights and powers
pursuant to the Sale and Servicing Agreement, the Issuer shall promptly
notify a Responsible Officer of the Indenture Trustee. As soon as a Successor
Servicer is appointed, the Issuer shall notify the Indenture Trustee of such
appointment, specifying in such notice the name and address of such Successor
Servicer.
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Section 3.08. NEGATIVE COVENANTS. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by Section 3.10(b) and
the Basic Documents, sell, transfer, exchange or otherwise dispose
of any of the properties or assets of the Issuer, including those
included in the Owner Trust Estate, unless directed to do so by the
Indenture Trustee;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code or
applicable state law) or assert any claim against any present or
former Noteholder by reason of the payment of the taxes levied or
assessed upon any part of the Owner Trust Estate;
(iii) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien created by 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, (B) 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 Owner 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 any of the Financed Vehicles and
arising solely as a result of an action or omission of the related
Obligor) or (C) permit the lien created by 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 Owner
Trust Estate; or
(iv) dissolve or liquidate in whole or in part.
Section 3.09. ANNUAL STATEMENT AS TO COMPLIANCE. The Issuer will
deliver to the Indenture Trustee, within 120 days after the end of each
fiscal year of the Issuer (commencing with the fiscal year ended March 2001),
an Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that:
(i) a review of the activities of the Issuer during such
year and of its performance under this Indenture has been made under
such Authorized Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge,
based on such review, the Issuer has complied with all conditions
and covenants under this Indenture throughout such year or, if there
has been a default in its compliance with any such condition or
covenant, specifying each such default known to such Authorized
Officer and the nature and status thereof.
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Section 3.10. 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 or any State and
shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual payment
of the principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture, and
each other Basic Document, on the part of the Issuer to be performed
or observed;
(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 Issuer, any Noteholder or any
Certificateholder;
(v) any action that 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 (which
shall describe the actions taken as required by clause (v) above or
that no actions will be taken) each stating that such consolidation
or merger comply with this Article 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) The Issuer shall not convey or transfer all or substantially
all of its properties or assets, including those included in the Owner Trust
Estate, to any Person (except as expressly permitted by the Basic Documents),
unless:
(i) the Person that acquires by conveyance or transfer the
properties or assets of the Issuer shall (A) be a United States
citizen or a Person organized and existing under the laws of the
United States or any State, (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 Notes and
the performance or observance of every agreement and covenant of
this Indenture and each other Basic Document 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
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subject and subordinate to the rights of 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 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 federal tax consequence to the Issuer, any Noteholder or any
Certificateholder;
(v) any action that 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 (which
shall describe the actions taken as required by clause (v) above or
that no actions will be taken) each stating that such conveyance or
transfer and such supplemental indenture comply with this Article
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 310(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 of the properties or
assets of the Issuer pursuant to Section 3.10(b), the Issuer 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 stating that the
Issuer 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 and activities incidental thereto.
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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 (i) the Notes and (ii) any other indebtedness
permitted by or arising under the other Basic Documents.
Section 3.14. SERVICER'S OBLIGATIONS. The Issuer shall cause the
Servicer to comply with Sections 3.10, 3.11, 3.12, 4.10 and Article Eight of
the Sale and Servicing Agreement.
Section 3.15. GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES.
Except as contemplated by the Basic Documents, the Issuer shall not make any
loan or advance or credit to, or guarantee (directly or indirectly or by an
instrument having the effect of assuring another's payment or performance on
any obligation or capability of so doing or otherwise), endorse or otherwise
become contingently liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase, repurchase or acquire
(or agree contingently to do so) any stock, obligations, assets or securities
of, or any other interest in, or make any capital contribution to, any other
Person.
Section 3.16. CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 3.17. REMOVAL OF ADMINISTRATOR. So long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause
unless the Rating Agency Condition shall have been satisfied in connection
with such removal.
Section 3.18. RESTRICTED PAYMENTS. Except as expressly permitted by
the Basic Documents, the Issuer shall not, directly or indirectly, (i) pay
any dividend or make any distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, to the Owner
Trustee or any owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of the Issuer
or to the Servicer, (ii) redeem, purchase, retire or otherwise acquire for
value any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; provided, however, that
the Issuer may make, or cause to be made, (a) distributions as contemplated
by, and to the extent funds are available for such purpose under, the Sale
and Servicing Agreement or the Trust Agreement and (b) payments to the
Indenture Trustee pursuant to Section 1.02(b)(ii) of the Administration
Agreement. The Issuer will not, directly or indirectly, make payments to or
distributions from the Collection Account except in accordance with this
Indenture and the Basic Documents.
Section 3.19. NOTICE OF EVENTS OF DEFAULT. The Issuer shall give a
Responsible Officer of the Indenture Trustee and each Rating Agency prompt
written notice of each Event of Default hereunder and each default on the
part of the Servicer or the Seller of its obligations under the Sale and
Servicing Agreement.
Section 3.20. 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.
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Section 3.21. COMPLIANCE WITH LAWS. The Issuer shall comply with the
requirements of all applicable laws, the non-compliance with which would,
individually or in the aggregate, materially and adversely affect the ability
of the Issuer to perform its obligations under the Notes, this Indenture or
any Basic Document.
Section 3.22. AMENDMENTS OF SALE AND SERVICING AGREEMENT AND TRUST
AGREEMENT. The Issuer shall not agree to, any amendment to Section 9.01 of
the Sale and Servicing Agreement or Section 11.01 of the Trust Agreement to
eliminate the requirements thereunder that the Indenture Trustee or the
Holders of the Notes consent to amendments thereto as provided therein.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall cease to be of further effect with respect to the Notes
except as to (i) rights of registration of transfer and exchange, (ii)
substitution of mutilated, destroyed, lost or stolen Notes, (iii) rights of
Noteholders to receive payments of principal thereof and interest thereon,
(iv) Sections 3.03, 3.04, 3.05, 3.08, 3.10, 3.12, 3.13, 3.20 and 3.22, (v)
the rights, obligations and immunities of the Indenture Trustee hereunder
(including the rights of the Indenture Trustee under Section 6.07 and the
obligations of the Indenture Trustee under Section 4.02) and (vi) the rights
of Noteholders as beneficiaries hereof with respect to the property so
deposited with the Indenture Trustee payable to all or any of them, and the
Indenture Trustee, on demand of and at the expense of the Issuer, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to the Notes, when
(i) either
(A) all Notes theretofore authenticated and
delivered (other than (i) Notes that have been destroyed,
lost or stolen and that have been replaced or paid as
provided in Section 2.05 and (ii) Notes for whose payment
money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to
the Issuer or discharged from such trust, as provided in
Section 3.03) have been delivered to the Indenture Trustee
for cancellation; or
(B) all Notes not theretofore delivered to the
Indenture Trustee cancellation
(1) have become due and payable,
(2) will become due and payable at the
Class A-4 Final Payment Date 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,
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and the Issuer, in the case of clauses (1), (2) or (3)
above, has irrevocably deposited or caused to be
irrevocably deposited with the Indenture Trustee cash or
direct obligations of or obligations guaranteed by the
United States (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
indebtedness on such Notes not theretofore delivered to the
Indenture Trustee for cancellation when due to the related
Final Payment Date or Redemption Date (if Notes shall have
been called for redemption pursuant to Section 10.01), as
the case may be;
(ii) the Issuer has paid or performed or caused to be paid
or performed all amounts and obligations which the Issuer may owe to
or on behalf of the Indenture Trustee for the benefit of the
Noteholders under this Indenture or the Notes; 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 11.01 (a) and, subject to Section 11.02,
each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have
been complied with.
Section 4.02. APPLICATION OF TRUST MONEY. All monies deposited with
the Indenture Trustee pursuant to Section 4.01 shall be held in trust in a
segregated non-interest bearing account and applied by it, in accordance with
the provisions of the Notes and this Indenture, to the payment, either
directly or through any Paying Agent, as the Indenture Trustee may determine,
to the Holders of the particular Notes for the payment or redemption of which
such monies have been deposited with the Indenture Trustee, of all sums due
and to become due thereon for principal and interest; but such monies need
not be segregated from other funds of the Issuer except to the extent
required herein or in the Sale and Servicing Agreement or required by law.
Section 4.03. REPAYMENT OF MONIES HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with respect
to the Notes, all monies then held by any Paying Agent other than the
Indenture Trustee under the provisions of this Indenture with respect to such
Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to
be held and applied according to Section 3.03 and thereupon such Paying Agent
shall be released from all further liability with respect to such monies.
ARTICLE FIVE
REMEDIES
Section 5.01. 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):
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(i) default by the Issuer 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;
(ii) default by the Issuer in the payment of the principal
of or any installment of the principal of any Note when the same
becomes due and payable;
(iii) 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), or any representation or warranty of the Issuer made in this
Indenture or in any certificate or other writing delivered pursuant
hereto or in connection herewith proving to have been incorrect in
any material respect as of the time when the same shall have been
made, and such default shall continue or not be cured, or the
circumstance or condition in respect of which such misrepresentation
or warranty was incorrect shall not have been eliminated or
otherwise cured, for a period of 30 days 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, a written notice
specifying such default or incorrect representation or warranty and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder;
(iv) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer or any
substantial part of the Owner Trust Estate in an involuntary case
under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the
Owner Trust Estate, or ordering the winding-up or liquidation of the
Issuer's affairs, and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
(v) the commencement by the Issuer of a voluntary case
under any applicable federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by the
Issuer to the entry of an order for relief in an involuntary case
under any such law, or the consent by the Issuer to the appointment
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Owner Trust Estate, or the making by the
Issuer of any general assignment for the benefit of creditors, or
the failure by the Issuer generally to pay its debts as such debts
become due, or the taking of any action by the Issuer in furtherance
of any of the foregoing.
The Issuer shall deliver to a Responsible Officer of 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 (iii) above, its
status and what action the Issuer is taking or proposes to take with respect
thereto.
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Section 5.02. ACCELERATION OF MATURITY, RESCISSION AND ANNULMENT.
(a) If an Event of Default should occur and be continuing, then
and in every such case the Indenture Trustee or the Holders of Notes
representing not less than a majority of the Outstanding Amount 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 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.
(b) 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
provided, the Holders of Notes representing a majority of the Outstanding
Amount, by written notice to the Issuer and the Indenture Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on
all Notes and all other amounts that would then be due
hereunder or upon such Notes if the Event of Default giving
rise to such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of
the principal of the Notes that has become due solely by such
acceleration, have been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
Section 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY INDENTURE TRUSTEE.
(a) The Issuer covenants that if the Notes are accelerated
following the occurrence of an Event of Default, 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 on the overdue principal and, to the extent payment
at such rate of interest shall be legally enforceable, on overdue
installments of interest at the related Interest Rate and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and
counsel.
(b) 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
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judgment or final decree and may enforce the same against the Issuer or other
obligor upon such Notes and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Notes, wherever situated,
the monies adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.04, 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 Owner 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, or liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its
property or such other obligor or Person, or in case of any other comparable
judicial Proceedings relative to the Issuer or other obligor upon the Notes,
or to the creditors or property of the Issuer or such other obligor, the
Indenture Trustee, irrespective of whether the principal of any Notes shall
then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Indenture Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered,
by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the entire
amount of 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 or bad faith) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations,
to vote on behalf of the Holders of Notes in any election of a
trustee, a standby trustee or Person performing similar functions in
any such Proceedings;
(iii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Noteholders and
of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Indenture Trustee or the Holders of Notes allowed in
any Proceedings relative to the Issuer, its creditors and its
property;
29
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 (including
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 5.04. REMEDIES, PRIORITIES.
(a) If an Event of Default shall have occurred and be continuing,
the Indenture Trustee may do one or more of the following (subject to
Sections 5.02 and 5.05):
(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 monies
adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to
the Owner Trust Estate;
(iii) exercise any remedies of a secured party under the
UCC and any other remedy available to the Indenture Trustee and take
any other appropriate action to protect
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and enforce the rights and remedies of the Indenture Trustee on
behalf of the Noteholders under this Indenture; and
(iv) sell the Owner 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, however, that the Indenture Trustee may not sell or otherwise
liquidate the Owner Trust Estate following an Event of Default, other than an
Event of Default described in Section 5.01(i) or (ii), unless (A) the Holders
of 100% of the Outstanding Amount consent thereto, (B) the proceeds of such
sale or liquidation distributable to the Noteholders are sufficient to
discharge in full all amounts then due and unpaid upon such Notes for
principal and interest or (C) the Indenture Trustee determines that the Owner
Trust Estate will not continue to provide sufficient funds for the payment of
principal of and interest on the Notes as would have become due if the Notes
had not been declared due and payable, and the Indenture Trustee obtains the
consent of Holders of 66 2/3% of the Outstanding Amount. In determining such
sufficiency or insufficiency with respect to clause (B) and (C) above, 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
Owner Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or property
pursuant to this Article, it shall pay out the money or property in the
following order and priority:
(i) to the Indenture Trustee and the Owner Trustee, any
amounts due under the Trust Agreement or Section 6.07 hereof;
(ii) to the Servicer, for amounts due and unpaid in respect
of Nonrecoverable Advances under the Sale and Servicing Agreement;
(iii) to the Servicer, for amounts due and unpaid in
respect of the Total Servicing Fee under the Sale and Servicing
Agreement;
(iv) to the Holders of the Notes of each Class, the Note
Interest Distributable Amount ratably in proportion to the Note
Interest Distributable Amount for each Class at their respective
Interest Rates;
(v) to the Holders of Notes of all Classes, the outstanding
principal amount of the Notes, pro rata in proportion to the
Outstanding principal amount of each Class;
(vi) to the Holders of the Trust Certificates, the
Certificate Interest Distributable Amount;
(vii) to the Holders of the Trust Certificates, the
outstanding principal amount of the Trust Certificates; and
(viii) to the Seller, any remaining amount.
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The Indenture Trustee may fix a record date and payment date for any payment
to Noteholders pursuant to this Section. At least 15 days before such record
date, the Issuer shall mail to each Noteholder and the Indenture Trustee a
notice that states the record date, the payment date and the amount to be
paid.
Section 5.05. OPTIONAL PRESERVATION OF THE RECEIVABLES. If the Notes
have been declared to be due and payable under Section 5.02 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 Owner Trust Estate. It is the desire of the
parties hereto and the Noteholders that there be at all times sufficient
funds for the payment of principal of and interest on the Notes, and the
Indenture Trustee shall take such desire into account when determining
whether or not to maintain possession of the Owner Trust Estate. In
determining whether to maintain possession of the Owner Trust Estate, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as
to the feasibility of such proposed action and as to the sufficiency of the
Owner Trust Estate for such purpose.
Section 5.06. LIMITATION OF SUITS. No Holder of any Note shall have
any right to institute any Proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the Outstanding
Amount have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its
own name as Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute
such Proceedings; and
(v) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the
Holders of a majority of the Outstanding Amount.
It is understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders 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
Notes, each representing less than a majority
32
of the Outstanding Amount, the Indenture Trustee in its sole discretion may
determine what action, if any, shall be taken, notwithstanding any other
provisions of this Indenture. The Indenture Trustee shall not be liable for
any such determination made in good faith.
Section 5.07. UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE
PRINCIPAL AND INTEREST. Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any,
on such Note on or after the respective due dates thereof expressed in such
Note or in this Indenture (or, in the case of redemption, on or after the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
Section 5.08. 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 though no such Proceeding had
been instituted.
Section 5.09. 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 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 Notes
representing a majority of the Outstanding Amount 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:
(i) such direction shall not be in conflict with any rule
of law or with this Indenture;
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(ii) subject to the terms of Section 5.04, any direction to
the Indenture Trustee to sell or liquidate the Owner Trust Estate
shall be by the Holders of Notes representing not less than 100% of
the Outstanding Amount;
(iii) if the conditions set forth in Section 5.05 have been
satisfied and the Indenture Trustee elects to retain the Owner Trust
Estate pursuant to such Section, then any direction to the Indenture
Trustee by the Holders of Notes representing less than 100% of the
Outstanding Amount to sell or liquidate the Owner Trust Estate shall
be of no force and effect; and
(iv) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction.
Notwithstanding the rights of Noteholders set forth in this Section, subject
to Section 6.01, the Indenture Trustee need not take any action for which it
will not be adequately indemnified 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 5.02,
the Holders of Notes of not less than a majority of the Outstanding Amount
may waive any past Default or Event of Default and its consequences except a
Default (i) in payment of principal of or interest on any of the Notes or
(ii) in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the Holder of each Note. In the case of any
such waiver, the Issuer, the Indenture Trustee and the Holders of the Notes
shall respectively be restored to their former positions and rights
hereunder; but no such waiver shall extend to any subsequent or other Default
or Event of 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.
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 Indenture Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, 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 (i) any suit instituted
by the Indenture Trustee, (ii) any suit instituted by any Noteholder, or
group of Noteholders, in each case holding in the aggregate more than 10% of
the Outstanding Amount or (iii) 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).
34
Section 5.14. WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law wherever enacted, now or at any
time hereafter in force, that may affect the covenants or the performance of
this Indenture; and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the 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 Owner Trust Estate or upon any of the assets of the Issuer. Any money
or property collected by the Indenture Trustee shall be applied in accordance
with Section 5.04(b).
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 shall take all such lawful
action as the Indenture Trustee may request to compel or secure the
performance and observance by the Seller or the Servicer, as applicable, of
each of their 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 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 shall, exercise all rights,
remedies, powers, privileges and claims of the Issuer against the Seller or
the Servicer under or in connection with the Sale and Servicing Agreement,
including the right or power to take any action to compel or secure
performance or observance by the Seller or the Servicer, of each of their
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.
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ARTICLE SIX
THE INDENTURE TRUSTEE
Section 6.01. DUTIES OF INDENTURE TRUSTEE.
(a) If an Event of Default has occurred and is continuing of which
a Responsible Officer of the Indenture Trustee has actual knowledge, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs; provided, however, that if the Indenture
Trustee shall assume the duties of the Servicer pursuant to Section 3.07(e),
the Indenture Trustee in performing such duties shall use the degree of care
and skill customarily exercised by a prudent institutional servicer with
respect to installment sale contracts that it services for itself or others.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee shall undertake to perform such
duties and only such duties as are specifically set forth in this
Indenture and no implied covenants or obligations shall be read into
this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; however, the Indenture Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of Section
6.01(b);
(ii) the Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer unless
it is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 5.11.
(d) Every provision of this Indenture that in any way relates to
the Indenture Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
(e) 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.
36
(f) 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.
(g) 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 adequate indemnity against such
risk or liability is not reasonably assured to it.
(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.
(i) The Indenture Trustee shall not be charged with knowledge of
any Event of Default unless either (i) a Responsible Officer shall have
actual knowledge of such Event of Default or (ii) written notice of such
Event of Default shall have been given to the Indenture Trustee in accordance
with the provisions of this Indenture.
Section 6.02. RIGHTS OF INDENTURE TRUSTEE.
(a) Except as otherwise provided in the second succeeding
sentence, the Indenture Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Indenture Trustee need not investigate any fact, calculation or matter stated
in the document. Notwithstanding the foregoing, the Indenture Trustee, upon
receipt of all 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, shall examine them to determine whether they comply as to
form to the requirements of this Indenture.
(b) Before the Indenture Trustee acts or refrains from acting, it
may require an Officer's Certificate or an Opinion of Counsel. The Indenture
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on an Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of, or
for the supervision of, any such agent, attorney, custodian or nominee
appointed with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, 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 advice
or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and
37
complete authorization and protection from liability in respect to any action
taken, omitted or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel.
Section 6.03. INDIVIDUAL RIGHTS OF INDENTURE TRUSTEE. The Indenture
Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Issuer or its Affiliates
with the same rights it would have if it were not Indenture Trustee. Any
Paying Agent, 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 6.04. 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, the Owner Trust Estate or the Notes, it shall
not be accountable for the Issuer's use of the proceeds from the Notes, and
it shall not be responsible for any statement of the Issuer in this 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 6.05. NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is known to a Responsible Officer of the Indenture
Trustee, the Indenture Trustee shall mail to each Noteholder notice of the
Default within 90 days after it occurs. Except in the case of a Default in
payment of principal of or interest on any Note (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
interests of Noteholders.
Section 6.06. REPORTS BY INDENTURE TRUSTEE TO HOLDERS. The Indenture
Trustee shall deliver to each Noteholder such information as may be required
to enable such holder to prepare its federal and state income tax returns.
Section 6.07. COMPENSATION AND INDEMNITY. The Issuer shall, or shall
cause the Administrator to, (i) pay to the Indenture Trustee from time to
time reasonable compensation for its services, which compensation shall not
be limited by any law on compensation of a trustee of an express trust, (ii)
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including without limitation, costs of collection, in
addition to the compensation for its services, which expenses shall include
the reasonable compensation and expenses, disbursements and advances of the
Indenture Trustee's agents, counsel, accountants and experts and (iii)
indemnify the Indenture Trustee and its officers, directors, employees and
agents against any and all loss, liability or expense (including reasonable
attorneys' fees and expenses) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder not
resulting from its own willful misconduct, negligence or bad faith. The
Indenture Trustee shall notify the Issuer and the Administrator promptly of
any claim for which it may seek indemnity. Failure by the Indenture Trustee
to so notify the Issuer and the Administrator shall not relieve the Issuer or
the Administrator of its obligations hereunder. The Issuer shall, or shall
cause the Administrator to, defend any such claim, and the Indenture Trustee
may have separate counsel and the Issuer shall, or shall cause the
Administrator to, pay the fees and expenses of such counsel. Neither the
Issuer nor the Administrator need reimburse
38
any expense or indemnify against any loss, liability or expense incurred by
the Indenture Trustee through the Indenture Trustee's own willful misconduct,
negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant
to this Section shall survive the discharge of this Indenture or the earlier
resignation or discharge of the Indenture Trustee. When the Indenture Trustee
incurs expenses after the occurrence of a Default specified in Section 5.01
(iv) or (v) 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 6.08. REPLACEMENT OF INDENTURE TRUSTEE. No resignation or
removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section. The Indenture Trustee
may resign at any time by so notifying the Issuer. Noteholders representing a
majority of the Outstanding Amount may remove the Indenture Trustee at any
time and appoint a successor Indenture Trustee by so notifying the Indenture
Trustee. The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) a court having jurisdiction in the premises in respect
of the Indenture Trustee in an involuntary case or proceeding under
federal or state banking or bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, shall have entered a decree or
order granting relief or appointing a receiver, liquidator,
assignee, custodian, trustee, conservator, sequestrator (or similar
official) for the Indenture Trustee or for any substantial part of
the Indenture Trustee's property, or ordering the winding-up or
liquidation of the Indenture Trustee's affairs, provided any such
decree or order shall have continued unstayed and in effect for a
period of 30 consecutive days;
(iii) the Indenture Trustee commences a voluntary case
under any federal or state banking or bankruptcy laws, as now or
hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, conservator, sequestrator or other
similar official for the Indenture Trustee or for any substantial
part of the Indenture Trustee's property, or makes any assignment
for the benefit of creditors or fails generally to pay its debts as
such debts become due or takes any corporate action in furtherance
of any of the foregoing; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee resigns 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.
39
A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Issuer.
Thereupon the resignation or removal of the retiring Indenture Trustee shall
become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its succession to the
Noteholders. The retiring Indenture Trustee shall promptly transfer all
property held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Holders of a majority in Outstanding
Amount may petition any court of competent jurisdiction for the appointment
of a successor Indenture Trustee.
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.
Any resignation or removal of the Indenture Trustee and appointment
of a successor Indenture Trustee pursuant to the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Indenture Trustee pursuant to this Section and payment of all fees and
expenses owed to the outgoing Indenture Trustee. Notwithstanding the
replacement of the Indenture Trustee pursuant to this Section, the Issuer's
and the Administrator's obligations under Section 6.07 shall continue for the
benefit of the retiring Indenture Trustee.
Section 6.09. SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the
Indenture Trustee consolidates or merges with, converts or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation shall, without any further act, be the successor Indenture
Trustee; provided, that such corporation or banking association shall be
otherwise qualified and eligible under Section 6.11. The Indenture Trustee
shall provide each Rating Agency 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 Indenture Trustee
may adopt the certificate of authentication of any predecessor trustee and
deliver such Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the Indenture
Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Indenture Trustee; and in
all such cases such certificates shall have the full force as is provided
anywhere in the Notes or in this Indenture that the certificate of the
Indenture Trustee shall have.
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Section 6.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provision of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Owner Trust Estate may at the time be located, the
Indenture Trustee and the Administrator, acting jointly, shall have the power
and may execute and deliver all instruments to appoint one or more Persons to
act as a co-trustee or co-trustees, or separate trustee or separate trustees,
of all or any part of the Trust, and to vest in such Person or Persons, in
such capacity and for the benefit of the Noteholders, such title to the Owner
Trust Estate or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Indenture Trustee may consider necessary or desirable. If the Administrator
shall not have joined in such appointment within 15 days after its receipt of
a request to do so, the Indenture Trustee alone shall have the power to make
such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under
Section 6.11 and no notice to Noteholders of the appointment of any
co-trustee or separate trustee shall be required under Section 6.08.
(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 Owner Trust Estate or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee and the Administrator may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article. 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
41
protection to, the Indenture Trustee. Every such instrument shall be filed
with the Indenture Trustee and a copy thereof given to the Administrator.
(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 Section 310(a). The
Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition, and the time deposits of the Indenture Trustee shall be rated at
least A-1 by Standard & Poor's and P-1 by Moody's. The Indenture Trustee
shall comply with TIA Section 310(b); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 6.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. The
Indenture Trustee shall comply with TIA Section 311 (a), excluding any
creditor relationship listed in TIA Section 311(b). An Indenture Trustee who
has resigned or been removed shall be subject to TIA Section 31l(a) to the
extent indicated.
Section 6.13. REPRESENTATIONS AND WARRANTIES OF INDENTURE TRUSTEE.
The Indenture Trustee hereby makes the following representations and
warranties on which the Issuer and Noteholders shall rely:
(i) it is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States;
(ii) it has full power, authority and legal right to
execute, deliver, and perform this Indenture and shall have taken
all necessary action to authorize the execution, delivery and
performance by it of this Indenture;
(iii) the duties and obligations of the Indenture Trustee
under the Indenture constitute the valid, legal and binding
obligations of the Indenture Trustee enforceable in accordance with
its terms except as enforcement may be limited by bankruptcy,
insolvency, reorganization or similar laws or equitable principles
limiting creditors' rights generally, and provided that no
representation is expressed as to the availability of equitable
remedies;
(iv) that to the best knowledge of the Indenture Trustee,
the Indenture Trustee is not in breach of or default under any law
or administrative rule or regulation of the United States of America
or any department, division, agency or instrumentality thereof,
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or any applicable court or administrative decree or order, and which
would materially impair the ability of the Indenture Trustee to
perform its obligations under the Indenture; and
(v) that to the best knowledge of the Indenture Trustee, no
authorization, consent or other order of any state or federal
government authority or agency having jurisdiction over the trust
powers of the Indenture Trustee are required to be obtained by the
Indenture Trustee for the valid authorization, execution and
delivery by the Indenture Trustee of the Indenture or the
authentication of the Notes.
ARTICLE SEVEN
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND
ADDRESSES OF NOTEHOLDERS. If Definitive Notes are issued, the Issuer will
furnish or cause to be furnished to the Indenture Trustee (i) not more than
five days after the earlier of (a) each Record Date and (b) three months
after the last Record Date, a list, in such form as the Indenture Trustee may
reasonably require, of the names and addresses of the Holders of Notes as of
such Record Date, and (ii) at such other times as the Indenture Trustee may
request in writing, within 30 days after receipt by the Issuer of any such
request, a list of similar form and content as of a date not more than ten
days prior to the time such list is furnished; provided, however, that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
Section 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS, REPORTS
AND CERTAIN DOCUMENTS TO NOTEHOLDERS.
(a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as
provided in Section 7.01 and the names and addresses of Holders of Notes
received by the Indenture Trustee in its capacity as Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in such
Section 7.01 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or
under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA Section 312(c).
(d) The Indenture Trustee will provide to Securityholders the
reports, certificates, opinions and documents specified in Section 3.15 of
the Sale and Servicing Agreement, upon written request to the Indenture
Trustee.
Section 7.03. REPORTS BY ISSUER.
(a) The Issuer shall:
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(i) file with the Indenture Trustee, within 15 days after
the Issuer is required to file the same with the Commission, copies
of the annual reports and 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)
that 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
Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i)
and (ii) of this Section 7.03(a) and 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 March 31 of each year.
Section 7.04. REPORTS BY INDENTURE TRUSTEE. If required by TIA
Section 313(a), within 60 days after each December 15 beginning with December
15, 2000, the Indenture Trustee shall mail to each Noteholder as required by
TIA Section 313(c) a brief report dated as of such date that complies with
TIA Section 313(a). The Indenture Trustee also shall comply with TIA Section
313(b).
A copy of 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.
ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. COLLECTION OF MONEY. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable
to or receivable by the Indenture Trustee pursuant to this Indenture. The
Indenture Trustee shall apply all such money received by it as provided in
this Indenture. Except as otherwise expressly provided in this Indenture, if
any default occurs in the making of any payment or performance under any
agreement or instrument that is part of the Owner 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.
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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 Five.
Section 8.02. ACCOUNTS.
(a) Pursuant to Section 4.01 of the Sale and Servicing Agreement,
there has been established and there shall be maintained an Eligible Account
(initially at U.S. Bank National Association) in the name, and under the sole
dominion and control, of the Indenture Trustee until the Outstanding Amount
has been reduced to zero, and thereafter, in the name, and under the sole
dominion and control, of the Owner Trustee, which is designated as the Yield
Supplement Account.
(b) On or prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain, in the name of the Indenture Trustee,
Eligible Accounts for the benefit of the (i) Securityholders, the Collection
Account and the Payahead Account, and (ii) Noteholders, the Note Distribution
Account and the Reserve Fund as provided in Section 4.01 of the Sale and
Servicing Agreement.
(c) On or before each Payment Date, with respect to the preceding
Collection Period, all amounts required to be deposited in the Collection
Account will be deposited as provided in Sections 4.02 and 4.05 of the Sale
and Servicing Agreement. On or before each Payment Date, all amounts required
to be deposited in the Note Distribution Account with respect to the
preceding Collection Period pursuant to Sections 4.06 and 4.07 of the Sale
and Servicing Agreement will be transferred from the Collection Account, the
Reserve Fund, the Payahead Account and/or the Yield Supplement Account to the
Note Distribution Account.
(d) On each Payment Date and Redemption Date, the Indenture
Trustee shall distribute all amounts on deposit in the Note Distribution
Account to Noteholders in respect of the Notes to the extent of amounts due
and unpaid on the Notes for principal and interest (including any premium) in
the following amounts and in the following order of priority (except as
otherwise provided in Section 5.04(b)):
(i) the Note Interest Distributable Amount; provided, that
if there are not sufficient funds in the Note Distribution Account
to pay the allocable portion of the Note Interest Distribution
Amount with respect to each Class of Notes, the amount in the Note
Distribution Account shall be applied to the payment of such amount
pro rata on the basis of the total Note Interest Distributable
Amount due on the Notes;
(ii) the Note Principal Distributable Amount (first to the
Class A-1 Notes until the Class A-1 Notes are paid in full, second
to the Class A-2 Notes until paid in full, third to the Class A-3
Notes until paid in full, and fourth to the Class A-4 Notes until
paid in full);
(iii) notwithstanding clause (ii) above, on each Payment
Date after the Notes have been accelerated as provided in Section
5.02(a) following the occurrence of an Event of Default, until such
time as the Notes have been paid in full, the Note Principal
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Distributable Amount shall be paid first to the Class A-1 Notes
until the Class A-1 Notes are paid in full and then to the Class
A-2, Class A-3 and Class A-4 Notes on a pro rata basis based on the
Outstanding Amount of each such Class of Notes; and
(iv) in the event that there are insufficient funds in the
Note Distribution Account, an amount will be withdrawn from the
Reserve Fund pursuant to Section 4.07(b) of the Sale and Servicing
Agreement.
Section 8.03. GENERAL PROVISIONS REGARDING ACCOUNTS.
(a) So long as no Default or Event of Default shall have occurred
and be continuing, all or a portion of the funds in the Accounts shall be
invested in Eligible Investments and reinvested by the Indenture Trustee upon
the written direction of the Servicer, subject to the provisions of Section
4.01(b) of the Sale and Servicing Agreement. Except as otherwise provided in
Section 4.01 (b) of the Sale and Servicing Agreement, all income or other
gain from investments of monies deposited in the Accounts shall be paid to
the Servicer, and any loss resulting from such investments shall be charged
to the related Account.
(b) Subject to Section 6.01(c), the Indenture Trustee shall not in
any way be held liable by reason of any insufficiency in any of the Accounts
resulting from any loss on any Eligible Investment included therein except
for losses attributable to the Indenture Trustee's failure to make payments
on such Eligible Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as trustee, in accordance
with their terms.
(c) If (i) the Servicer shall have failed to give investment
directions for any funds on deposit in the Accounts to the Indenture Trustee
by 3:00 P.M., Chicago Time (or such other time as may be agreed by the Issuer
and the Indenture Trustee) on any Business Day or (ii) to the knowledge of a
Responsible Officer of the Indenture Trustee 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 5.02 or
(iii) if such Notes shall have been declared due and payable following an
Event of Default but amounts collected or receivable from the Owner Trust
Estate are being applied in accordance with Section 5.05 as if there had not
been such a declaration, then the Indenture Trustee upon actual knowledge by
a Responsible Officer of such event shall, to the fullest extent practicable,
invest and reinvest funds in the Accounts in the Eligible Investment listed
in clause (vii) of the definition thereof.
Section 8.04. RELEASE OF OWNER TRUST ESTATE.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.07, 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 shall be bound to ascertain
the Indenture Trustee's authority, inquire into the satisfaction of any
conditions precedent or see to the application of any monies.
46
(b) The Indenture Trustee shall, at such time as there are no
Notes Outstanding and all sums due the Indenture Trustee pursuant to Section
6.07 have been paid, release any remaining portion of the Owner 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
Accounts. The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.04(b) only upon receipt of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and
(if required by the TIA) Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section
11.01.
Section 8.05. 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 8.04(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, as a condition to
such action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such
action will not materially and adversely impair the security for the Notes or
the rights of the Noteholders in contravention of the provisions of this
Indenture; provided, however, that such Opinion of Counsel shall not be
required to express an opinion as to the fair value of the Owner 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 NINE
SUPPLEMENTAL INDENTURES
Section 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
(a) Without the consent of the Holders of any Notes but with prior
notice to each Rating Agency, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order, at any time and from time to time, may enter
into one or more indentures supplemental hereto (which shall conform to the
provisions of the TIA as in force at the date of the execution thereof), in
form satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property
at any time subject to the lien of this Indenture, or better to
assure, convey and confirm unto the Indenture Trustee any property
subject or required to be subjected to the lien of this Indenture,
or to subject additional property to the lien of this Indenture;
(ii) to evidence the succession, in compliance with 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 Holder of any Notes, or to surrender any right or
power herein conferred upon the Issuer;
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(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 that may be
inconsistent with any other provision herein or in any supplemental
indenture or the other Basic Documents 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 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 Six; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA.
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 each Rating Agency, 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, however, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Noteholder.
Section 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.
The Issuer and the Indenture Trustee, when authorized by an Issuer Order,
also may, with prior notice to each Rating Agency and with the consent of the
Holders of not less than a majority of the Outstanding Amount, 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, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:
(i) change the date of payment of any installment of
principal of or interest on any Note, or reduce the principal amount
thereof, the Interest Rate thereon or the Redemption Price with
respect thereto, change the provisions of this Indenture relating to
the application of collections on, or the proceeds of the sale of,
the Owner Trust Estate to
48
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 Five, 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, 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
required to direct the Indenture Trustee to direct the Issuer to
sell or liquidate the Owner Trust Estate pursuant to Section 5.04 or
amend the provisions of this Article which specify the percentage of
the Outstanding Amount required to amend this Indenture or the other
Basic Documents;
(v) modify any provision of this Section except to increase
any percentage specified herein or provide that certain additional
provisions of this Indenture or the 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 Payment Date (including
the calculation of any of the individual components of such
calculation) or affect the rights of the Holders of 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 Owner Trust Estate or, except as otherwise permitted or
contemplated herein, 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 Administrator shall certify to the Indenture Trustee whether or
not any Notes would be affected by any supplemental indenture and any such
certification shall be conclusive upon the Holders of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder.
It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
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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 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02, shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Indenture Trustee
may, but shall not be obligated to, enter into any such supplemental
indenture that affects the Indenture Trustee's own rights, duties,
liabilities or immunities under this Indenture or otherwise.
Section 9.04. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and shall 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 and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 9.05. CONFORMITY WITH TRUST INDENTURE ACT. Every amendment
of this Indenture and every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the TIA as then in effect so
long as this Indenture shall then be qualified under the TIA.
Section 9.06. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the
opinion of the Indenture Trustee and the Issuer, to any such supplemental
indenture may be prepared and executed by the Issuer and authenticated and
delivered by the Indenture Trustee in exchange for Outstanding Notes.
ARTICLE TEN
REDEMPTION OF NOTES
Section 10.01. REDEMPTION. The Outstanding Notes are subject to
redemption in whole, but not in part, pursuant to Section 8.01 of the Sale
and Servicing Agreement, on any Payment Date on which the Servicer exercises
its option to purchase the Owner Trust Estate pursuant to
50
said Section, for a purchase price equal to the Redemption Price; provided
that the Issuer has available funds sufficient to pay the Redemption Price.
The Servicer or the Issuer shall furnish each Rating Agency notice of such
redemption. If the outstanding Notes are to be redeemed pursuant to this
Section, the Servicer or the Issuer shall furnish notice of such election to
the Indenture Trustee not later than 20 days prior to the Redemption Date and
the Issuer shall deposit by 8:00 A.M., Los Angeles time, on the Redemption
Date with the Indenture Trustee in the Note Distribution Account the
Redemption Price of the Notes to be redeemed, whereupon all such Notes shall
be due and payable on the Redemption Date upon the furnishing of a notice
complying with Section 10.02 to each Holder of the Notes.
Section 10.02. FORM OF REDEMPTION NOTICE. Notice of redemption under
Section 10.01 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, or by facsimile mailed or transmitted not later than ten
days prior to the applicable Redemption Date to each Holder of Notes, as of
the close of business on the Record Date preceding the applicable Redemption
Date, at such Holder's address or facsimile number appearing in the Note
Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where such Notes are to be surrendered for
payment of the Redemption Price (which shall be the office or agency
of the Issuer to be maintained as provided in Section 3.02); and
(iv) that on the Redemption Date, the Redemption Price will
become due and payable upon each Note and that interest thereon
shall cease to accrue from and after the Redemption Date.
Notice of redemption of the 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 Note shall not impair
or affect the validity of the redemption of any other Note.
Section 10.03. NOTES PAYABLE ON REDEMPTION DATE. The Notes or
portions thereof to be redeemed shall, following notice of redemption as
required by Section 10.02, on the Redemption Date become due and payable at
the Redemption Price and (unless the Issuer shall default in the payment of
the Redemption Price) no interest shall accrue on the Redemption Price for
any period after the date to which accrued interest is calculated for
purposes of calculating the Redemption Price.
51
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
(a) Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture, the Issuer
shall furnish to the Indenture Trustee (i) an Officer's Certificate stating
that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, (ii) an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with and (iii) (if required by the TIA)
an Independent Certificate from a firm of certified public accountants
meeting the applicable requirements of this Section, except that, in the case
of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation
as is necessary to enable such signatory to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the 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 11.01 (a) or elsewhere in this
Indenture, furnish to the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to
the Issuer of the Collateral or other property or securities to be
so deposited.
(ii) 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) above, the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the
52
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) above and this clause
(ii), is 10% or more of the Outstanding Amount, 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 any release described in
clause (A) or (B) of Section 11.01(b)(v), 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) above, the Issuer shall also furnish to the Indenture Trustee
an Independent Certificate as to the same matters if the fair value
of the property or securities and of all other property (other than
property described in clauses (A) or (B) of Section 11.01 (b)(v))
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) above and this clause (iv), equals 10% or
more of the Outstanding Amount, 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.
(v) Notwithstanding Section 2.10 or any other provision of
this Section, the Issuer may, without compliance with the
requirements of the other provisions of this Section, (A) collect,
liquidate, sell or otherwise dispose of Receivables and Financed
Vehicles as and to the extent permitted or required by the Basic
Documents and (B) make cash payments out of the Accounts as and to
the extent permitted or required by the Basic Documents, so long as
the Issuer shall deliver to the Indenture Trustee every six months,
commencing January 15, 2001, an Officer's Certificate of the Issuer
stating that all the dispositions of Collateral described in clauses
(A) and (B) above that occurred during the preceding six calendar
months were in the ordinary course of the Issuer's business and that
the proceeds thereof were applied in accordance with the Basic
Documents.
Section 11.02. FORM OF DOCUMENTS DELIVERED TO 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 may certify
or give an opinion as to such matters in one or several documents.
53
Any certificate or opinion of an Authorized Officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Servicer, the Seller, the Issuer or the
Administrator, stating that the information with respect to such factual
matters is in the possession of the Servicer, the Seller, the Issuer or the
Administrator, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term hereof,
it is intended that the truth and accuracy, at the time of the granting of
such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Issuer to have such
application granted or to the sufficiency of such certificate or report. The
foregoing shall not, however, be construed to affect the Indenture Trustee's
right to rely upon the truth and accuracy of any statement or opinion
contained in any such document as provided in Article Six.
Section 11.03. ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and except as herein otherwise
expressly provided such action shall become effective when such instrument or
instruments are delivered to the Indenture Trustee and, where it is hereby
expressly required, to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the Indenture Trustee and the Issuer, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
54
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Notes shall bind the
Holder of every Note issued upon the registration thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered
to be done by the Indenture Trustee or the Issuer in reliance thereon,
whether or not notation of such action is made upon such Note.
Section 11.04. NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER AND
RATING AGENCIES. Any request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders or other documents provided or
permitted by this Indenture shall be in writing and if such request, demand,
authorization, direction, notice, consent, waiver or Act of Noteholders is to
be made upon, given or furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by the
Issuer shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing and mailed first-class, postage
prepaid, overnight courier or facsimile (followed by original) to or
with the Indenture Trustee at its Corporate Trust Office, or
(ii) the Issuer by the Indenture Trustee or by any
Noteholder shall be sufficient for every purpose hereunder if in
writing and mailed first-class, postage prepaid, overnight courier
or facsimile (followed by original) to the Issuer addressed to:
Honda Auto Receivables 2000-1 Owner Trust, in care of Bankers Trust
(Delaware), 1011 Centre Road, Suite 200, Wilmington, Delaware 19805
(with a copy to: Bankers Trust Company, 4 Albany Street, 10th Floor,
New York, New York 10006, Attention: Chip Greiter), or at any other
address previously furnished in writing to the Indenture Trustee by
the Issuer or the Administrator. The Issuer shall promptly transmit
any notice received by it from the Noteholders to the Indenture
Trustee.
Notices required to be given to each Rating Agency by the Issuer,
the Indenture Trustee or the Owner Trustee shall be in writing, personally
delivered, couriered or mailed by certified mail, return receipt requested,
to (i) in the case of Fitch, at the following address: One State Street
Plaza, New York, New York 10004, Attention: Asset Backed Surveillance
Department, (ii) in the case of Moody's, at the following address: Moody's
Investors Service, Inc., ABS Monitoring Department, 99 Church Street, New
York, New York 10007 or (iii) in the case of Standard & Poor's, at the
following address: Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., 25 Broadway (15th Floor), New York, New York
10004, Attention of Asset Backed Surveillance Department; or at such other
address as shall be designated by written notice to the other parties.
Section 11.05. 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 such Holder's address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. 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
55
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.
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 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 each Rating Agency,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default
or Event of Default.
Section 11.06. ALTERNATE PAYMENT AND NOTICE PROVISIONS.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Indenture Trustee or any
Paying Agent to such Holder, that is different from the methods provided for
in this Indenture for such payments or notices. The Issuer 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 11.07. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
Section 11.08. 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 11.09. SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee
in this Indenture shall bind its successors, co-trustees and agents.
56
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 of this Indenture and
the Notes shall not in any way be affected or impaired thereby.
Section 11.11. BENEFITS OF INDENTURE. Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Noteholders, and any
other party secured hereunder, and any other Person with an ownership
interest in any part of the Owner 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 Note's or this Indenture) payment need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date on which nominally due, and no
interest shall accrue for the period from and after any such nominal date.
Section 11.13. GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, EXCEPT
THAT THE DUTIES OF THE INDENTURE TRUSTEE SHALL BE GOVERNED BY 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.
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, 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,
57
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 Six, Seven and Eight of the Trust Agreement.
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. Notwithstanding anything herein to the contrary, the
foregoing shall not be construed to prohibit (i) the disclosure of any and
all information that is or becomes publicly known, or information obtained by
the Indenture Trustee from sources other than the Servicer or the Issuer,
(ii) the disclosure of any and all information (A) if required to do so by
any applicable law, rule or regulation, (B) to any government agency or
regulatory body having or claiming authority to regulate or oversee any
aspects of the Indenture Trustee's business or that of its affiliates, (C)
pursuant to any subpoena, civil investigative demand or similar demand or
request of any court, regulatory authority, arbitrator or arbitration to
which the Indenture Trustee or any affiliate or an officer, director,
employer or shareholder thereof is a party, (D) in any preliminary or final
offering circular, registration statement or contract or other document
pertaining to the transactions contemplated by the Agreement approved in
advance by the Servicer or the Issuer or (E) to any affiliate, independent or
internal auditor, agent, employee or attorney of the Indenture Trustee having
a need to know the same, provided that the Indenture Trustee advises such
recipient of the confidential nature of the information being disclosed, or
(iii) any other disclosure authorized by the Servicer or the Issuer.
58
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers, thereunto duly authorized and
duly attested, all as of the day and year first above written.
HONDA AUTO RECEIVABLES 2000-1 OWNER
TRUST,
By: BANKERS TRUST (DELAWARE), not in
its individual capacity but
solely as Owner Trustee,
By: /s/ Eileen M. Hughes
----------------------------------
Name: Eileen M. Hughes
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee,
By: /s/ Patricia M. Child
----------------------------------
Name: Patricia M. Child
Title: Vice President
STATE OF NEW YORK. )
) ss
COUNTY OF NEW YORK )
On October 20, 2000 before me, George Spurrell, Notary Public,
personally appeared Eileen M. Hughes,
|X| personally known to me, or
|_| proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to
the within instrument,
and acknowledged to me that she executed the same in her authorized capacity,
and that by her signature on the instrument the person, or the entity upon
behalf of which such person acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ George Spurrell [Seal]
-----------------------
George Spurrell
Notary Public, State of New York
No. 24-4864667
Qualified in Kings County
Certificate Filed in New York County
Commission Expires July 14, 2002
STATE OF ILLINOIS )
) ss
COUNTY OF COOK )
On October 23, 2000 before me, D. Newson, Notary Public,
personally appeared Patricia M. Child,
|X| personally known to me, or
|_| proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed
to the within instrument,
and acknowledged to me that she executed the same in her authorized capacity,
and that by her signature on the instrument the person, or the entity upon
behalf of which such person acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ D. Newson [Seal]
---------------------
OFFICIAL SEAL
D. NEWSON
Notary Public, State of Illinois
My Commission Exp. 10/28/2003
SCHEDULE A
SCHEDULE OF RECEIVABLES
[On File with Dewey Ballantine LLP]
SA-1
EXHIBIT A
FORM OF CLASS A NOTE
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.
REGISTERED $__________
No. R-__ CUSIP NO. _______
HONDA AUTO RECEIVABLES 2000-1 OWNER TRUST
___% ASSET BACKED NOTES, CLASS [A-1] [A-2] [A-3] [A-4]
Honda Auto Receivables 2000-1 Owner Trust, a business trust
organized and existing under the laws of the State of Delaware (the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of _____________________ Dollars
($__________), payable to the extent described in the Indenture referred to
on the reverse hereof on each Payment Date; provided, however, that the
entire unpaid principal amount of this Note shall be payable on the earlier
of ________________ ___, 200_ (the "Class A-1 [A-2] [A-3] [A-4] Final Payment
Date") and the Redemption Date, if any, selected pursuant to the Indenture.
The Issuer will pay interest on this Note at the rate per annum
shown above on each Payment 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 Payment Date (after giving effect to all payments of
principal made on the preceding Payment Date), or on the Closing Date in the
case of the first Payment Date or if no interest has yet been paid, subject
to certain limitations contained in the Indenture. [Interest on this
[Class A-1] Note will accrue for each Payment Date from and including the
most recent Payment Date on which interest has been paid (or, in the case
of the first Payment Date or if no interest has yet been paid, from the
Closing Date), to but excluding such current Payment Date]. Interest on
this [Class A-2,] [Class A-3,] [Class A-4] Note will be computed on the
basis of [the actual number of days in the Class A-1 Interest
A-1
Accrual Period divided by 360] [a 360-day year consisting of twelve 30-day
months in the case of the Class A-2, Class A-3 and Class A-4 Notes]. Such
principal of and interest on this Note shall be paid in the manner specified
on the reverse hereof.
The principal of and interest on this Note are payable in such coin
or currency of the United States of America 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, or be valid or
obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer, as of the date
set forth below.
Date: HONDA AUTO RECEIVABLES 2000-1 OWNER
TRUST,
By: BANKERS TRUST (DELAWARE)
not in its individual capacity
but solely as Owner Trustee
under the Trust Agreement,
By:
---------------------------------
Authorized Signatory
A-3
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: U.S. BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Indenture Trustee,
By:
----------------------------------
Authorized Signatory
A-4
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its ___% Asset Backed Notes, Class [A- 1 ] [A-2] [A-3] [A-4]
(the "Class [A-1] [A-2] [A-3] [A-4] Notes"), all issued 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. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed
thereto in the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and
the Class A-4 Notes (collectively, the "Notes") are and will be equally and
ratably secured by the collateral pledged as security therefor as provided in
the Indenture.
Principal payable on the Notes will be paid on each Payment Date in
the amount specified in the Indenture and in the Sale and Servicing
Agreement. As described above, the entire unpaid principal amount of this
Note will be payable on the earlier of the Class [A-1] [A-2] [A-3] [A-4]
Final Payment Date and the Redemption Date, if any, selected pursuant to the
Indenture. Notwithstanding the foregoing, under certain circumstances, the
entire unpaid principal amount of the Class [A-1] [A-2] [A-3] [A-4] Notes
shall be due and payable following the occurrence and continuance of an Event
of Default, as described in the Indenture. All principal payments on the
Class [A-1] [A-2] [A-3] [A-4] Notes shall be made pro rata to the Class [A-1]
[A-2] [A-3] [A-4] Noteholders entitled thereto.
Payments of principal and interest on this Note due and payable on
each Payment Date or Redemption Date shall be made by check mailed to the
Person whose name appears as the registered Holder of this Note (or one or
more Predecessor Notes) on the Note Register as of the close of business on
the related Record Date, except that with respect to Notes registered on the
Record Date in the name of the nominee of the Depository (initially, such
nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Such
checks shall be mailed to the Person entitled thereto at the address of such
Person as it appears on the Note Register as of the applicable Record Date
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more
Predecessor Notes) affected by any payments made on any Payment Date or
Redemption Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not noted hereon. If funds are expected
to be available, as provided in the Indenture, for payment in full of the
remaining unpaid principal amount of this Note on a Payment Date or
Redemption Date, then the Indenture Trustee, in the name of and on behalf of
the Issuer, will notify the Person who was the registered Holder hereof as of
the Record Date preceding such Payment Date or Redemption Date by notice
mailed within five days of such Payment Date or Redemption Date and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Corporate Trust Office of the Indenture Trustee
or at the office of the Indenture Trustee's agent appointed for such purposes
located in The City of New York.
As provided in the Indenture and subject to the limitations set
forth therein and on the face hereof, the transfer of this Note may be
registered on the Note Register upon surrender of
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this Note for registration of transfer at the office or agency designated by
the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Holder hereof or such Holder's attorney duly authorized
in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which
requirements include membership or participation in the Securities Transfer
Agent's Medallion Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act
of 1934, as amended, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount will be issued to
the designated transferee or transferees. No service charge will be charged
for any registration of transfer or exchange of this Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under the Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the Owner Trustee
in its individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee in 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 and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees
by accepting the benefits of the Indenture that such Noteholder or Note Owner
will not at any time institute against the Seller or the Issuer, or join in
any institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the other Basic
Documents.
A fiduciary of a Benefit Plan purchasing the Notes with the assets
of a Benefit Plan is deemed to represent that the acquisition and holding of
the Notes will be covered by a U.S. Department of Labor prohibited
transaction class exemption.
The Issuer has entered into the Indenture and this Note is issued
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness secured by
the Owner Trust Estate. Each Noteholder, by acceptance of a Note (and each
Note Owner by acceptance of a beneficial interest in a Note), agrees to treat
the Notes for federal, state and local income, single business and franchise
tax purposes as indebtedness of the Issuer.
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Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Note (as of the day
of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Issuer, the Indenture Trustee or any
such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Issuer and the rights of the Holders of the Notes under the Indenture at
any time by the Issuer with the consent of the Holders of Notes representing
a majority of the Outstanding Amount of all Notes at the time Outstanding.
The Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Outstanding Amount of the Notes, on
behalf of the Holders of all the Notes, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note (or any one or more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Note. The Indenture also permits the Indenture Trustee to amend or waive
certain terms and conditions set forth in the Indenture without the consent
of Holders of the Notes issued thereunder.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with
the laws of the State of California, 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, except that
the duties of the Indenture Trustee are governed by New York law.
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.
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
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(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
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attorney, to transfer said Note on the books kept for registration thereof,
with full power of substitution in the premises.
Dated: *
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Signature Guaranteed:
*
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* NOTICE: 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 whatever. Such signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note
Registrar, which requirements include membership or participation in
STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
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EXHIBIT B
Form of Note Depositor Agreement
[On File with Dewey Ballantine LLP]
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