1
EXHIBIT 4.2
================================================================================
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST,
as Issuer,
and
___________________,
as Trustee
____________________________________
INDENTURE
Dated as of _________ 1, 199
____________________________________
$__________________________
Asset Backed Notes
================================================================================
2
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.02. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 8
Section 1.03. Interpretive Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE TWO
THE NOTES
Section 2.01. Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.02. Execution, Authentication and Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.03. Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.04. Registration; Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . 11
Section 2.05. Mutilated, Destroyed, Lost or Stolen Notes . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.06. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.07. Payment of Principal and Interest; Defaulted Interest . . . . . . . . . . . . . . . . . . . 13
Section 2.08. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2.09. Book-Entry Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.10. Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.11. Definitive Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.12. Release of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.13. Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.14. Calculation of LIBOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.15. Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE THREE
COVENANTS
Section 3.01. Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.03. Money for Payments to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 3.04. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.05. Protection of Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.06. Opinions as to Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(i)
3
Page
Section 3.07. Performance of Obligations; Servicing of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 3.08. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.09. Annual Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.10. Issuer May Consolidate Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.11. Successor or Transferee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.12. No Other Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.13. No Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.14. Servicer's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.15. Guarantees, Loans, Advances and Other Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.16. Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.17. Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.18. Notice of Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.19. Further Instruments and Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.20. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.21. Amendments of Sale and Servicing Agreement
and Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.22. Removal of Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 4.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4.03. Repayment of Monies Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.02. Rights upon Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 5.04. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.05. Preservation of the Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.06. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.07. Limitation of Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 5.08. Unconditional Rights of Noteholders to Receive
Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.09. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(ii)
4
Page
Section 5.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.11. Delay or Omission Not a Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.12. Control by Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.15. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.16. Action on Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.17. Performance and Enforcement of Certain Obligations . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE SIX
THE TRUSTEE
Section 6.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 6.02. Optional Purchase; Auction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 6.03. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 6.04. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.05. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.06. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.07. Reports by Trustee to Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.08. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 6.09. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 6.10. Successor Trustee by Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.11. Appointment of Co-Trustee or Separate Trustee . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.12. Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.13. Preferential Collection of Claims Against Issuer . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.14. Representations and Warranties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE SEVEN
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Trustee Names and Addresses of Noteholders . . . . . . . . . . . . . . . . . 47
Section 7.02. Preservation of Information; Communications to Noteholders . . . . . . . . . . . . . . . . . . 47
Section 7.03. Reports by Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 7.04. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(iii)
5
Page
ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 8.02. Trust Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 8.03. General Provisions Regarding Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 8.04. Release of Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 8.05. Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders . . . . . . . . . . . . . . . . . . . . 52
Section 9.02. Supplemental Indentures With Consent of Noteholders . . . . . . . . . . . . . . . . . . . . . 53
Section 9.03. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.04. Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 9.05. Conformity With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 9.06. Reference in Notes to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE TEN
REDEMPTION OF NOTES
Section 10.01. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 10.02. Form of Redemption Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 10.03. Notes Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 11.02. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 11.03. Acts of Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 11.04. Notices to Trustee, Issuer and Rating Agencies . . . . . . . . . . . . . . . . . . . . . . . 61
Section 11.05. Notices to Noteholders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 11.06. Alternate Payment and Notice Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 11.07. Conflict With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 11.08. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 11.09. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 11.10. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.11. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
(iv)
6
Page
Section 11.12. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.13. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.14. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.15. Recording of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.16. Trust Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.17. No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 11.18. Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 11.19. Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
EXHIBITS
Schedule A - Schedule of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA-1
Exhibit A - Form of Sale and Servicing Agreement . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Form of Note Depository Agreement . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C - Form of Class A-1 Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Exhibit D - Form of Class A-2 Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
Exhibit E - Form of Class A-3 Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-1
Exhibit F - Form of Note Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . G-1
(v)
7
This Indenture, dated as of ___________ 1, 199 , is between the
Fleetwood Credit RV Receivables 199 - Owner Trust, a Delaware business trust
(the "Issuer"), and ____________, a ____________, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the holders of the Issuer's ____% Asset
Backed Notes, Class A-1 (the "Class A-1 Notes"), ____% Floating Rate Asset
Backed Notes, Class A-2 (the "Class A-2 Notes"), and ____% Asset Backed Notes,
Class A-3 (the "Class A-3 Notes" and, together with the Class A-1 Notes and the
Class A-2 Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Trustee on behalf of the Trust on the
Closing Date, on behalf of and for the benefit of the Noteholders, without
recourse, all of the Issuer's right, title and interest in, to and under (i)
the Receivables secured by the Financed Vehicles (which Receivables will be
listed in the Schedule of Receivables); (ii) certain monies due under the
Initial Receivables on and after ____________ 1, 199 and under the Subsequent
Receivables on and after the related Subsequent Cutoff Date, including all
payments with respect to any Financed Vehicle to which an Initial Receivable
relates received on or after ____________ 1, 199 and with respect to any
Financed Vehicle to which a Subsequent Receivable relates received on or after
the related Subsequent Cutoff Date, and all other proceeds received on or in
respect of such Receivables (other than payments due, in the case of the
Initial Receivables, prior to ____________ 1, 199 or, in the case of the
Subsequent Receivables, prior to ___________, 199__); (iii) security interests
in the Financed Vehicles; (iv) the Collection Account, the Distribution
Accounts, the Pre- Funding Account, the Reserve Fund and the Yield Supplement
Account and all amounts, securities, investments, financial assets, investment
property and other property from time to time deposited or credited thereto,
including all net income from the investment of funds therein and all proceeds
therefrom; (v) proceeds from claims under certain Insurance Policies in respect
of Financed Vehicles or Obligors under the Receivables; (vi) the rights and
benefits of the Seller under the Receivables Purchase Agreement and of the
Issuer under the Sale and Servicing Agreement and all other related Transfer
Agreements; (vii) the protective security interest in certain of the foregoing
property granted by the Seller in favor of the Issuer; (viii) all present and
future claims, demands, causes and choses in action in respect of any or all of
the foregoing; 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, 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 that at any time
constitute all or part of or are included in the proceeds of any of the
foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without
8
prejudice, priority or distinction, and to secure compliance with the
provisions of this Indenture, all as provided in this Indenture.
The Trustee, as Trustee on behalf of the Noteholders, acknowledges
such Grant, accepts the trusts under this Indenture in accordance with the
provisions of this Indenture and agrees to perform its duties required in this
Indenture to the best of its ability to the end that the interests of the
Noteholders may be adequately and effectively protected. Capitalized terms
used in this Granting Clause that are not otherwise defined shall have the
meanings ascribed thereto in this Indenture.
2
9
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. Capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the Sale and
Servicing Agreement. Whenever used herein, unless the context otherwise
requires, the following words and phrases shall have the following meanings:
"Act" has the meaning set forth in Section 11.03(a).
"Administration Agreement" means the Administration Agreement, dated
as of ________ 1, 199 , between the Administrator and the Trustee.
"Administrator" means the Servicer, or any successor Administrator
under the Administration Agreement.
"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 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 foregoing
list of Authorized Officers.
"Basic Documents" means the Certificate of Trust, the Trust Agreement,
the Sale and Servicing Agreement, the Administration Agreement, the Receivables
Purchase Agreement, the Note Depository Agreement, the Certificate Depository
Agreement and this Indenture.
"Book-Entry Note" means a beneficial interest in a Note, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.09.
"Calculation Agent" has the meaning set forth in Section 2.14.
"Certificate Depository Agreement" has the meaning set forth in the
Trust Agreement.
"Certificate of Trust" means the Certificate of Trust of the Issuer
substantially in the form of Exhibit B to the Trust Agreement.
"Class A-1 Noteholder" means the Person in whose name a Class A-1 Note
is registered in the Note Register.
"Class A-1 Notes" means the ____% Asset Backed Notes, Class A-1,
substantially in the form of Exhibit C.
3
10
"Class A-2 Noteholder" means the Person in whose name a Class A-2 Note
is registered in the Note Register.
"Class A-2 Notes" means the ____% Floating Rate Asset Backed Notes,
Class A-2, substantially in the form of Exhibit D.
"Class A-3 Noteholder" means the Person in whose name a Class A-3 Note
is registered in the Note Register.
"Class A-3 Notes" means the ____% Asset Backed Notes, Class A-3,
substantially in the form of Exhibit E.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"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.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning set forth in the Granting Clause of this
Indenture.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Definitive Notes" has the meaning set forth in Section 2.09.
"DTC" means The Depository Trust Company, and its successors.
"ERISA" means the Employment Retirement Income Security Act of 1974,
as amended.
"Event of Default" has the meaning set forth in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation or bank,
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 bank; 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 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
4
11
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.
"Indebtedness" means, with respect to any Person at any time, (i)
indebtedness or liability of such Person for borrowed money whether or not
evidenced by bonds, debentures, notes or other instruments, or for the deferred
purchase price of property or services (including trade obligations); (ii)
obligations of such Person as lessee under leases that should have been or
should be, in accordance with generally accepted accounting principles,
recorded as capital leases; (iii) current liabilities of such Person in respect
of unfunded vested benefits under Benefit Plans covered by Title IV of ERISA;
(iv) obligations issued for or liabilities incurred on the account of such
Person; (v) obligations or liabilities of such Person arising under acceptance
facilities; (vi) obligations of such Person under any guaranties, endorsements
(other than for collection or deposit in the ordinary course of business) and
other contingent obligations to purchase, to provide funds for payment, to
supply funds to invest in any Person or otherwise to assure a creditor against
loss; (vii) obligations of such Person secured by any Lien on property or
assets of such Person, whether or not the obligations have been assumed by such
Person; or (viii) obligations of such Person under any interest rate or
currency exchange agreement.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indenture Trust Estate" means the Collateral Granted to the Trustee
under this Indenture, including all proceeds thereof.
"Independent" means, when used with respect to any specified Person,
that the Person (i) is in fact independent of the Issuer, any other obligor
upon 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 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 Trustee in the exercise of reasonable care, and 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.
"Issuer" has the meaning set forth on the Sale and Servicing Agreement
and, for purposes of any provision contained herein and required by the TIA,
each other obligor on the Notes.
5
12
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by an Authorized Officer and delivered to the
Trustee.
"LIBOR" means the London interbank offered rate.
"LIBOR Determination Date" has the meaning set forth in Section 2.14.
"LIBOR Reuters" has the meaning set forth in Section 2.14.
"LIBOR Telerate" has the meaning set forth in Section 2.14.
"London Banking Day" means any Business Day on which dealings in
deposits in United States dollars are transacted in the London interbank
market.
"Mandatory Redemption" means redemption in part of the Notes pursuant
to Section 10.01(b).
"Note Depository Agreement" means the agreement dated ____________,
199 , among the Issuer, the Trustee and DTC, as the initial Clearing Agency,
relating to the Notes, substantially in the form of Exhibit B hereto.
"Note Final Scheduled Distribution Date" means the Class A-1 Final
Scheduled Distribution Date, the Class A-2 Final Scheduled Distribution Date or
the Class A-3 Final Scheduled Distribution Date, as the context may require.
"Note Owner" means, with respect to a Book-Entry Note, the Person who
is the 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" have the respective meanings set
forth in Section 2.04.
"Noteholder" means a Class A-1 Noteholder, Class A-2 Noteholder or
Class A-3 Noteholder, as the context may require.
"Officer's Certificate" means a certificate signed by an 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 Trustee.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in this Indenture, be employees of
or counsel to the Issuer and who shall be satisfactory to the Trustee, and
which shall comply with any applicable requirements of Section 11.01, and shall
be in form and substance satisfactory to the Trustee.
6
13
"Optional Purchase" means the optional purchase of all Receivables
pursuant to Section 10.01 of the Sale and Servicing Agreement.
"Outstanding Amount" means the aggregate principal amount of all Notes
of one Class or of all Classes, as the case may be, Outstanding at the date of
determination.
"Paying Agent" means the Trustee or any other Person that meets the
eligibility standards for the Trustee specified in Section 6.12 and is
authorized by the Issuer to make the distributions from the Note Distribution
Account, including payment of principal of or interest on the Notes on behalf
of the Issuer.
"Pre-Funded Percentage" means, with respect to a Class of Notes, the
percentage derived from the fraction, the numerator of which is the Original
Note Balance of such Class of Notes, and the denominator of which is the sum of
the Original Note Balance and the Original Certificate Balance.
"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.
"Redemption Date" means, in the case of a redemption pursuant to
Section 10.01, the Distribution Date specified by the Servicer or the Issuer
pursuant to such Section.
"Redemption Price" means, in the case of a redemption of the Notes
pursuant to Section 10.01, an amount equal to the Outstanding Amount of the
Notes being redeemed plus accrued and unpaid interest thereon at the related
Interest Rate 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.
"Reuters Screen LIBO Page" means the display designated as Page "LIBO"
on the Reuters Monitor Money Rate Service (or such other page as may replace
the LIBO page on that service for the purpose of displaying LIBORs of major
banks.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of the date hereof, among the Issuer, the Seller and the Servicer,
substantially in the form of Exhibit A hereto.
"Successor Servicer" has the meaning set forth in Section 3.07(e).
"Telerate Page 3750" means the display designated as page "3750" on
the Telerate Service (or such other page as may replace the 3750 page on that
service or such other service or
7
14
services as may be nominated by the British Bankers' Association for the
purpose of displaying LIBORs for U.S. dollar deposits).
"Termination Date" means the date on which the Trustee shall have
received payment and performance of all amounts and obligations the Issuer may
owe to or on behalf of the Trustee for the benefit of the Noteholders under
this Indenture or the Notes.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended, as in force on the date hereof, unless otherwise specifically
provided.
"Trustee" means _____________, as Trustee under this Indenture, or any
successor Trustee under this Indenture.
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 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. Interpretive Provisions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires, (i) terms used herein include, as appropriate, all genders
and the plural as well as the singular, (ii) references to this Indenture
include all Exhibits hereto, (iii) references to words such as "herein",
"hereof" and the like shall refer to this Indenture as a whole and not to any
particular part, Article or Section herein, (iv) references to an Article or
Section such as "Article One" or "Section 1.01" shall refer to the applicable
Article or Section of this Indenture, (v) the term "include" and all variations
thereof shall mean "include without limitation", (vi) the term "or" shall
include "and/or", (vii) the term "proceeds" shall have the meaning ascribed to
such term in the UCC, (viii) references to "writing" include printing, typing,
lithography and other means of reproducing words in a visible
8
15
form, (ix) references to agreements and other contractual instruments include
all amendments, modifications and supplements thereto or any changes therein
entered into in accordance with their respective terms and not prohibited by
this Agreement, (x) references to Persons include their permitted successors
and assigns and (xi) all accounting terms used but not defined herein shall be
construed in accordance with generally accepted accounting principles in the
United States.
9
16
ARTICLE TWO
THE NOTES
Section 2.01. Form. The Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes, in each case together with the Trustee's certificate of
authentication, shall be in substantially the forms set forth as Exhibits to
this Indenture 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 such Note.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in the Exhibits hereto are part of 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 Trustee shall, upon receipt of an Issuer Order, authenticate and
deliver for original issue the following aggregate principal amount of Notes:
(i) $_________ of Class A-1 Notes, (ii) $__________ of Class A-2 Notes and
(iii) $__________ of Class A-3 Notes. The aggregate Outstanding Amount at any
time may not exceed such respective amounts, except as otherwise provided in
Section 2.05.
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
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 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 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
10
17
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
Noteholder. Upon surrender for cancellation of any one or more temporary
Notes, the Issuer shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like 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 Trustee shall be "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 Trustee is appointed by the Issuer as Note
Registrar, the Issuer shall give the Trustee prompt written notice of the
appointment of such Note Registrar and of the location, and any change in the
location, of the Note Register, and the Trustee shall have the right to inspect
the Note Register at all reasonable times and to obtain copies thereof, and the
Trustee shall have the right to rely upon a certificate executed on behalf of
the Note Registrar by an Executive Officer thereof as to the names and
addresses of the Noteholders and the principal amounts and number of such
Notes.
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, the Trustee shall authenticate and the related Noteholder shall obtain
from the 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 a Noteholder, Notes may be exchanged for other Notes
of the same Class in any authorized denominations, of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at 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, the Issuer shall execute, and
the Trustee shall authenticate and the Noteholder shall obtain from the
Trustee, the Notes that the Noteholder making the exchange is entitled to
receive.
11
18
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.
Each 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 Trustee duly executed by the related
Noteholder or such Noteholder's attorney duly authorized in writing, with such
signature guaranteed by a commercial bank or trust company located, or having a
correspondent located, in The City of New York or the city in which the
Corporate Trust Office is located, or by a member firm of a national securities
exchange, and such other documents as the Trustee may require.
No service charge shall be made to a Noteholder for any registration
of transfer or exchange of Notes, but the Issuer or the 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 such
Note.
Copies of this Indenture (without exhibits) may be obtained by
Noteholders upon request in writing to the Trustee at the Corporate Trust
Office.
Section 2.05. Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Trustee, or the Trustee receives evidence
to its satisfaction of the destruction, loss or theft of any Note, (ii) there
is delivered to the Trustee such security or indemnity as may be required by
the Issuer and the Trustee to hold the Issuer and the 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 Trustee that such
Note has been acquired by a protected purchaser (as defined in Article 8 of the
UCC), the Issuer shall execute and upon its request the 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 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 (as defined in
Article 8 of the UCC) of the original Note in lieu of which such replacement
Note was issued presents for payment such original Note, the Issuer and the
Trustee shall be entitled to recover such replacement Note (or such payment)
from the Person to which it was delivered or any Person taking such replacement
Note from such Person to which such replacement Note was delivered or any
assignee of such Person, except a
12
19
protected purchaser (as defined in Article 8 of the UCC), and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of
any Loss incurred by the Issuer or the Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer or the Trustee may require the payment by the related Noteholder of a
sum sufficient to cover any Tax or other governmental charge that may be
imposed in relation thereto and any other reasonable expenses (including the
fees and expenses of the Trustee 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 Owners. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Trustee and any of their
respective agents may treat the Person in whose name such Note is registered
(as of the day of determination) as the owner of such Note for the purpose of
receiving payments, if any, of principal of and interest on such Note and for
all other purposes whatsoever, whether or not such Note be overdue, and none of
the Issuer, the Trustee nor 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 Distribution 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 related Distribution 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 2.11, 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.), payment shall 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 Distribution Date, a Redemption Date or on the related Note
Final Scheduled Distribution 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.
13
20
(b) The principal of each Note shall be payable, from the portion
of the Available Amount remaining after payment of the Servicer Payment, the
Note Interest Distributable Amount and the Certificate Interest Distributable
Amount, on each Distribution Date to the extent provided in the form of the
related Note set forth as an Exhibit hereto. Notwithstanding the foregoing,
the entire unpaid principal amount of the Notes shall be due and payable, if
not previously paid, on the date on which an Event of Default shall have
occurred and be continuing and the Trustee or Noteholders 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 entitled thereto. The Trustee shall notify the Person in whose
name a Note is registered at the close of business on the Record Date preceding
the Distribution Date on which the Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall (i) be
mailed within five Business Days of such Distribution Date (or, in the case of
Notes registered in the name of Cede & Co., as nominee of DTC, such notice
shall be provided within one Business Day of such Distribution Date) or receipt
of notice of termination of the Trust pursuant to Section 9.01(c) of the Trust
Agreement, (ii) specify that such final installment will be payable only upon
presentation and surrender and cancellation of such Note and (iii) 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 on and
principal of each Class of Notes, and upon the dissolution of the Trust, in
each case pursuant to Section 1(a)(i) of the Administration Agreement.
(c) If the Issuer defaults on any Distribution Date in a payment
of interest on the Notes, interest accrued but not paid on such Distribution
Date shall be due on the immediately succeeding Distribution Date. The Issuer
shall pay such defaulted interest (plus interest on such defaulted interest at
the related Interest Rate, to the extent lawful), at the related Interest Rate
in any lawful manner. Notwithstanding the foregoing, the Issuer may pay such
defaulted interest to the Persons who are Noteholders on a subsequent special
record date, which record date shall be at least five Business Days prior to
the Distribution Date relating thereto. The Issuer shall fix or cause to be
fixed any such special record date and payment date and, at least 15 days
before any such special record date, shall mail to the Trustee and each
Noteholder a notice that states such special record date, the related
Distribution Date and the amount of defaulted interest to be paid.
Section 2.08. Cancellation. Subject to Section 2.07(d), all Notes
surrendered for payment, registration of transfer, exchange or redemption
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by the Trustee. Subject to Section
2.07(d), the Issuer may at any time deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder that the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
cancelled by the 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. Subject to Section 2.07(d), all
cancelled Notes may be held or disposed of by the Trustee in accordance with
its standard retention or disposal policy as in effect at the time, unless the
Issuer shall direct by an
14
21
Issuer Order that they be destroyed or returned to it; provided, that such
Issuer Order is timely and the Notes have not been previously disposed of by
the Trustee.
Section 2.09. Book-Entry Notes. The Notes, upon original issuance,
shall be issued in the form of a typewritten Note or Notes representing the
Book-Entry Notes, to be delivered to DTC, the initial depository, by or on
behalf of the Issuer. Such Notes shall initially be registered on the Note
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Note Owner shall 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 ("Definitive Notes") have been issued
to Note Owners pursuant to Section 2.11:
(a) the provisions of this Section shall be in full force
and effect;
(b) the Note Registrar and the Trustee shall be entitled
to deal with the Clearing Agency for all purposes of this Indenture
(including the payment of principal of and interest on the Notes and
the giving of instructions or directions hereunder) as the sole Holder
of the Notes, and shall have no obligation to the Note Owners;
(c) to the extent that the provisions of this Section
conflict with any other provisions of this Indenture, the provisions
of this Section shall control;
(d) the rights of 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
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
(e) where this Indenture requires or permits to be taken
actions based upon instructions or directions of Noteholders
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 or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in
the Notes and has delivered such instructions to the Trustee.
Section 2.10. Notices to Clearing Agency. Whenever a notice or other
communication to Noteholders is required under this Indenture, unless and until
Definitive Notes shall have been issued to Note Owners pursuant to Section
2.11, the Trustee shall give all such notices and communications specified
herein to be given to the Noteholders to the Clearing Agency, and shall have no
obligation to the Note Owners.
Section 2.11. Definitive Notes. If (i) (A) the Administrator advises
the Trustee in writing that the Clearing Agency is no longer willing or able to
properly discharge its
15
22
responsibilities as described in the Note Depository Agreement and (B) the
Trustee or the Administrator is unable to locate a qualified successor, (ii)
the Administrator at its option advises the 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, Note Owners representing not less than
51% of the Voting Interest of a Class of Notes advise the Trustee and the
Clearing Agency through the Clearing Agency Participants in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the related Note Owners; then, in each case, the 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 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 Trustee shall authenticate,
Definitive Notes in accordance with the instructions of the Clearing Agency.
None of the Issuer, the Note Registrar or the Trustee shall be liable for any
delay in delivery of such instructions, and each may conclusively rely upon,
and shall be protected in relying upon, such instructions. Upon the issuance
of Definitive Notes of a Class, the Trustee shall recognize the Holders of such
Definitive Notes as Noteholders hereunder.
The Trustee shall not be liable if the Trustee or the Administrator is
unable to locate a qualified successor Clearing Agency. Definitive Notes shall
be typewritten, printed, lithographed, engraved or produced by any combination
of such methods (with or without steel engraved borders), all as determined by
the officers executing such Notes, as evidenced by their execution of such
Notes.
Section 2.12. Release of Collateral. Subject to Section 11.01 and
the terms of the other Basic Documents, the 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)(l) 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 shall be issued, with the intention that, for federal,
state and local income, single business and franchise tax purposes, the Notes
will qualify as indebtedness of the Issuer secured by the Indenture 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 related Book-Entry Note), agree to treat the Notes for federal, state
and local income, single business and franchise tax purposes as indebtedness of
the Issuer.
Section 2.14. Calculation of LIBOR. LIBOR for each Interest Period
shall be calculated by the Trustee, as calculation agent (in such capacity, the
"Calculation Agent") as follows:
(a) On the second London Banking Day prior to the
Distribution Date on which any Interest Period commences (each, a
"LIBOR Determination Date"), the Calculation Agent shall determine the
arithmetic mean of the offered rates for deposits in
16
23
U.S. dollars for the period of one month, commencing on such
Distribution Date, that appear either (a) on the Telerate Page 3750 as
of 11:00 A.M., London time, on that LIBOR Determination Date ("LIBOR
Telerate") or (b) the Reuters Screen LIBO Page as of 11:00 A.M.,
London time, on the LIBOR Determination Date ("LIBOR Reuters"). If at
least two such offered rates appear on the Telerate Page 3750, LIBOR
for such Interest Period shall be the arithmetic mean of such offered
rates as determined by the Calculation Agent.
(b) If fewer than two offered rates appear on each of the
Telerate Page 3750 and the Reuters Screen LIBO Page on such LIBOR
Determination Date, the Calculation Agent shall request the principal
London offices of each of four major banks in the London interbank
market selected by such Calculation Agent (after consultation with the
Seller) to provide such Calculation Agent with its offered quotations
for deposits in U.S. dollars for the period of one month, commencing
on such Distribution Date, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on such LIBOR
Determination Date and in a principal amount equal to an amount of not
less than $1,000,000 that is representative of a single transaction in
such market at such time. If at least two such quotations are
provided, LIBOR for such Interest Period shall be the arithmetic mean
of such quotations. If fewer than two such quotations are provided,
LIBOR for such Interest Period shall be the arithmetic mean of rates
quoted by three major banks in The City of New York selected by the
Calculation Agent (after consultation with the Seller) at
approximately 11:00 a.m., New York City time, on such LIBOR
Determination Date for loans in U.S. dollars to leading European
banks, for the period of one month, commencing on such Distribution
Date, and in a principal amount equal to an amount of not less than
$1,000,000 that is representative of a single transaction in such
market at such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting rates as mentioned
in this sentence, LIBOR for such Interest Period shall be the same as
LIBOR for the immediately preceding Interest Period.
Section 2.15. Employee Benefit Plans. The Notes may not be purchased
with the assets of a Benefit Plan if the Seller, the Servicer, the Trustee, the
Owner Trustee or any of their Affiliates (i) has investment or administrative
discretion with respect to such Benefit Plan assets; (ii) has authority or
responsibility to give, or regularly gives, investment advice with respect to
such Benefit Plan assets, for a fee and pursuant to an agreement or
understanding that such advice (a) will serve as a primary basis for investment
decisions with respect to such Benefit Plan assets and (b) will be based on the
particular investment needs for such Benefit Plan; or (iii) is an employer
maintaining or contributing to such Benefit Plan.
17
24
ARTICLE THREE
COVENANTS
Section 3.01. Payment of Principal and Interest. The Issuer shall
duly and punctually pay, if any, the principal of and interest on the Notes in
accordance with the terms of the Notes and this Indenture. Without limiting
the foregoing and subject to Section 8.02(c), the Issuer shall cause to be
distributed all amounts on deposit in the Note Distribution Account on a
Distribution Date for the benefit of (i) the Class A-1 Notes, to the Class A-1
Noteholders, (ii) the Class A-2 Notes, to the Class A-2 Noteholders and (iii)
the Class A-3 Notes, to the Class A-3 Noteholders. Amounts properly withheld
under the Code by any Person from a payment to any Noteholder of interest 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. _______________, as
agent for the Issuer, shall maintain in 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 Trustee
to serve as its agent for the foregoing purposes. The Issuer shall give prompt
written notice to the Trustee of the location, and of any change in the
location, of any such office or agency. If at any time the Issuer shall fail
to maintain any such office or agency or shall fail to furnish the Trustee with
the address thereof, such surrenders, notices and demands may be made or served
at the Corporate Trust Office, and the Issuer hereby appoints the Trustee as
its agent to receive all such surrenders, notices and demands.
Section 3.03. Money for Payments to be Held in Trust. As provided in
Sections 5.06 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(b) shall be
made on behalf of the Issuer by the Trustee or by another Paying Agent, and no
amounts so withdrawn from the Collection Account and the Note Distribution
Account for payments of Notes shall be paid over to the Issuer except as
provided in this Section.
On each Deposit 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, such sum to be held in trust
for the benefit of the Persons entitled thereto and (unless the Paying Agent is
the Trustee) shall promptly notify the Trustee of its action or its failure to
so act.
The Issuer shall cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee (and if the Trustee acts as Paying Agent, it
hereby so agrees), subject to the provisions of this Section, that such Paying
Agent will:
(a) 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
18
25
to such Persons or otherwise disposed of as herein provided and pay
such sums to such Persons as herein provided;
(b) give the Trustee notice of any default by the Issuer
(or any other obligor upon the Notes) in the making of any payment
required to be made with respect to the Notes;
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent;
(d) immediately resign as Paying Agent and forthwith pay
to the 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
(e) 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 Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which the sums were held by such Paying Agent; and upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further Liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Trustee or any Paying Agent in trust for the payment of any amount
due with respect to any Note and remaining unclaimed for two years after such
amount has become due and payable shall be discharged from such trust, and upon
receipt of an Issuer Request, shall be deposited by the Trustee in the
Collection Account; and the related Noteholder shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and
all Liability of the Trustee or such Paying Agent with respect to such trust
money shall thereupon cease; provided, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
shall be repaid to or for the account of the Issuer. The Trustee may also
adopt and employ, at the expense of the Issuer, any other reasonable means of
notification of such repayment (including, but not limited to, mailing notice
of such repayment to Noteholders the Notes of which 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 Trustee or
of any Paying Agent, at the last address of record for each such Noteholder).
19
26
Section 3.04. Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a business trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States,
in which case the Issuer shall keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and shall obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Indenture Trust Estate.
Section 3.05. Protection of Indenture Trust Estate. The Issuer
intends the security interest Granted pursuant to this Indenture in favor of
the Trustee on behalf of the Noteholders to be prior to all other Liens in
respect of the Indenture Trust Estate, and the Issuer shall take all actions
necessary to obtain and maintain, for the benefit of the Trustee on behalf of
the Noteholders, a first Lien on and a first priority, perfected security
interest in the Indenture Trust Estate. The Issuer shall from time to time
execute and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further assurance
and other instruments, all as prepared by the Servicer and delivered to the
Issuer, and shall take such other action necessary or advisable to:
(a) Grant more effectively all or any portion of the
Indenture Trust Estate;
(b) maintain or preserve the Lien and security interest
(and the priority thereof) created by this Indenture or carry out more
effectively the purposes hereof;
(c) perfect, publish notice of or protect the validity of
any Grant made or to be made by this Indenture;
(d) enforce any of the Collateral;
(e) preserve and defend title to the Indenture Trust
Estate and the rights of the Trustee and the Noteholders in such
Indenture Trust Estate against the Claims of all persons and parties;
or
(f) pay all Taxes or assessments levied or assessed upon
the Indenture Trust Estate when due.
The Issuer hereby designates the Trustee its agent and attorney-in-fact to
execute all financing statements, continuation statements or other instruments
required to be executed pursuant to this Section.
Section 3.06. Opinions as to Indenture Trust Estate.
(a) Promptly after the execution and delivery of this Indenture,
the Issuer shall furnish to the 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 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
20
27
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 calendar year,
beginning with the first calendar year beginning more than three months after
the Initial Cut-Off Date, the Issuer shall furnish to the 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 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 shall not take any action and shall use its best
efforts not to permit any action to be taken by others, including the Servicer,
that would release any Person from any of such Person's material covenants or
obligations under any instrument or agreement included in the Indenture 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 the Basic
Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties and obligations under this Indenture, and any performance
of such duties by a Person identified to the Trustee in an Officer's
Certificate shall be deemed to be action taken by the Issuer. The Trustee
shall not be responsible for the action or inaction of the Servicer or the
Administrator. Initially, the Issuer has contracted with the Servicer and the
Administrator to assist the Issuer in performing its duties under this
Indenture.
(c) The Issuer shall, and shall cause the Administrator to,
punctually perform and observe all of the obligations and agreements of the
Issuer and the Administrator contained in this Indenture, the other Basic
Documents and in the instruments and agreements included in the Indenture 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 Trustee or Noteholders representing at least a majority of the
Outstanding Amount or such greater percentage as may be specified in the
particular provision.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Default, the Issuer shall promptly notify the Trustee and 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.
21
28
(e) If the Issuer has given notice of termination to the Servicer
of the Servicer's rights and powers pursuant to Section 8.02 of the Sale and
Servicing Agreement, as promptly as possible thereafter, the Issuer shall
appoint a successor servicer (the "Successor Servicer"), and such Successor
Servicer shall accept its appointment by a written assumption in a form
acceptable to the 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 Trustee without further action shall automatically be
appointed the Successor Servicer. The Trustee may resign as the Successor
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 with
the Issuer 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 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 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 Trustee may appoint, or may petition a court of competent
jurisdiction to appoint, a Successor Servicer. In connection with any such
appointment, the Trustee 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 8.02 of the Sale and Servicing Agreement, the Issuer 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 Trustee). If the
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 Trustee and, accordingly, the provisions of Article Six shall be
inapplicable to the Trustee in its duties as the successor to the Servicer and
the servicing of the Receivables. In case the Trustee shall become successor
to the Servicer under the Sale and Servicing Agreement, the Trustee shall be
entitled to appoint as Servicer one of its Affiliates, provided that it shall
be fully liable for the actions and omissions of such Affiliate 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
the Trustee. As soon as a Successor Servicer is appointed, the Issuer shall
notify the Trustee of such appointment, specifying in such notice the name and
address of such Successor Servicer.
(g) The Issuer agrees that it will not waive timely performance or
observance by the Servicer or the Seller of their respective duties under the
Basic Documents if the effect thereof would adversely affect the Noteholders.
Section 3.08. Negative Covenants. Until the Termination Date, the
Issuer shall not:
(a) except as expressly permitted by the Basic Documents,
sell, transfer, exchange or otherwise dispose of any of the properties
or assets of the Issuer, including those included in the Indenture
Trust Estate;
22
29
(b) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code or
applicable state law) or assert any Claim against any present or
former Noteholder by reason of the payment of the Taxes levied or
assessed upon any part of the Indenture Trust Estate;
(c) (i) 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, (ii) permit any Lien, excise, Claim,
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
Indenture Trust Estate or any part thereof or any interest therein or
the proceeds thereof (other than tax Liens, mechanics' Liens and other
Liens that arise by operation of law, in each case on a Financed
Vehicle and arising solely as a result of an action or omission of the
related Obligor), (iii) 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 Indenture
Trust Estate or (iv) amend, modify or fail to comply with the
provisions of the Basic Documents without the prior written consent of
the Owner Trustee, except where the Basic Documents allow for
amendment or modification without the consent or approval of the Owner
Trustee; or
(d) dissolve or liquidate in whole or in part.
Section 3.09. Annual Statement as to Compliance. The Issuer shall
deliver to the Trustee, on or before 120 days after the end of each fiscal year
of the Issuer (commencing with the fiscal year ended December 31, 1999), an
Officer's Certificate stating, as to the Authorized Officer signing such
Officer's Certificate, that:
(a) a review of the activities of the Issuer during such
year and of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge,
based on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year, or, if there has
been a default in the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officer and the
nature and status thereof.
Section 3.10. Issuer May Consolidate 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 Trustee, in form and substance satisfactory to the
Trustee, the due and punctual payment of the principal of and interest
on all Notes and the
23
30
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 or therein;
(ii) immediately after giving effect to such consolidation
or merger, no Default or Event of Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied; and
(iv) the Issuer shall have received an Opinion of Counsel
that shall be delivered to and shall be satisfactory to the Trustee to
the effect that such consolidation or merger will not have any
material adverse tax consequence to the Trust or any Securityholder;
(b) The Issuer shall not convey or transfer all or substantially
all of its properties or assets, including those included in the Indenture
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 and 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 Trustee, in form
and substance satisfactory to the 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 subject and subordinate
to the rights of the Noteholders, (D) unless otherwise provided in
such supplemental indenture, expressly agree to indemnify, defend and
hold harmless the Issuer against and from any Loss 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 conveyance or
transference, 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 conveyance or transference;
(iv) the Issuer shall have received an Opinion of Counsel
that shall be delivered to and shall be satisfactory to the Trustee to
the effect that such conveyance or transference will not have any
material adverse tax consequence to the Trust or any Securityholder;
24
31
(v) any action as is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel (which shall describe
the actions taken as required by clause (v) above or that no such
actions will be taken) each stating that such conveyance or
transference 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 filings required by
the Exchange Act).
Section 3.11. Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance
with Section 3.10(a), the Person formed by or surviving such consolidation or
merger (if other than the Issuer) shall succeed to, and be substituted for, and
may exercise every right and power of, the Issuer under this Indenture with the
same effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all or substantially all the
assets or properties of the Issuer pursuant to Section 3.10(b), the Issuer
shall be released from every covenant and agreement of this Indenture to be
observed or performed on the part of the Issuer with respect to the Notes
immediately upon the delivery of written notice to the 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.
Section 3.13. No Borrowing. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
Indebtedness except (i) for the Notes, (ii) pursuant to any Advances made to it
by the Servicer and (iii) for 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 4.09, 4.10, 4.11 and 5.07 and Article Nine of
the Sale and Servicing Agreement.
Section 3.15. Guarantees, Loans, Advances and Other Liabilities.
Except as otherwise 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 assuming another's payment or performance
on any obligation or capability of so doing or otherwise), endorse or otherwise
become contingently liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase, repurchase or acquire
(or agree contingently to do so) any stock, obligations, assets or securities
of, 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).
25
32
Section 3.17. 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,
(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 to the Servicer, the Trustees and the
Securityholders 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 Trustees pursuant to Section 1(a)(ii) of the Administration
Agreement. The Issuer shall not, directly or indirectly, make payments to or
distributions from the Collection Account except in accordance with this
Indenture and the other Basic Documents.
Section 3.18. Notice of Events of Default. The Issuer agrees to give
the 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
their respective obligations under the Sale and Servicing Agreement.
Section 3.19. Further Instruments and Acts. Upon request of the
Trustee, the Issuer shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section 3.20. 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
other Basic Document.
Section 3.21. Amendments of Sale and Servicing Agreement and Trust
Agreement. The Issuer shall not agree to any amendment to Section 10.01 of the
Sale and Servicing Agreement or Section 11.01 of the Trust Agreement to
eliminate the requirements thereunder that the Trustee or the Noteholders
consent to amendments thereto as provided therein.
Section 3.22. Removal of Administrator. The Issuer shall not remove
the Administrator without cause unless the Rating Agency Condition shall have
been satisfied in connection with such removal.
26
33
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 (a) rights of registration of transfer and exchange, (b) substitution of
mutilated, destroyed, lost or stolen Notes, (c) rights of Noteholders to
receive payments of principal thereof and interest thereon, (d) Sections 3.03,
3.04, 3.05, 3.07, 3.08, 3.10, 3.12, 3.13, 3.20 and 3.21, (e) the rights,
obligations and immunities of the Trustee hereunder (including the rights of
the Trustee under Section 6.08 and the obligations of the Trustee under Section
4.02) and (f) the rights of Noteholders as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them, which
shall survive the Class A-3 Final Scheduled Distribution Date and extend
through any preference period applicable with respect to the Notes or any
payments made in respect of the Notes, and the Trustee, on demand of and at the
expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes, when
(i) either
(A) all Notes theretofore authenticated and delivered
(other than (1) Notes that have been destroyed, lost or stolen and
that have been replaced or paid as provided in Section 2.05 and (2)
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 Trustee for cancellation; or
(B) all Notes not theretofore delivered to the Trustee
for cancellation:
(1) have become due and payable,
(2) will become due and payable at the Class A-3
Final Scheduled Distribution Date within one year, or
(3) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and
at the expense, of the Issuer;
and the Issuer, in the case of clauses (1), (2) or (3) above,
has irrevocably deposited or caused to be irrevocably
deposited with the 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 in an
Eligible Account for such purpose, in an amount sufficient to
pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation when due
to the Note Final Scheduled Distribution Date or Redemption
Date (if the Notes
27
34
shall have been called for redemption pursuant to Section
10.01), as the case may be;
(C) the Issuer has paid or performed or caused to be paid
or performed all amounts and obligations the Issuer may owe to or on
behalf of the Trustee for the benefit of the Noteholders under this
Indenture or the Notes; and
(D) the Issuer has delivered to the Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA and the
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 (and, in the
case of the foregoing Officer's Certificate, stating that the Rating
Agency Condition has been satisfied).
Section 4.02. Application of Trust Money. All monies deposited with
the Trustee pursuant to Section 4.01 shall be held in trust and applied by it,
in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Trustee may
determine, to the related Noteholders for the payment or redemption of which
such monies have been deposited with the Trustee, of all sums due and to become
due thereon for principal and interest; but such monies need not be segregated
from other funds except to the extent required herein or in the Sale and
Servicing Agreement or 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 Trustee
under the provisions of this Indenture with respect to such Notes shall, upon
demand of the Issuer, be paid to the Trustee to be held and applied according
to Section 3.03 and thereupon such Paying Agent shall be released from all
further Liability with respect to such monies.
28
35
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):
(a) 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;
(b) 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;
(c) default in the observance or performance of any
covenant or agreement of the Issuer made in this Indenture (other than
a covenant or agreement, a default in the observance or performance of
which is elsewhere in this Section specifically dealt with), and such
default shall continue or not be cured for a period of 60 days after
there shall have been given, by registered or certified mail, to the
Issuer by the Trustee or to the Issuer and the Trustee by Noteholders
representing at least 25% of the Voting Interest thereof, voting
together as a single Class, 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;
(d) 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 proves to have been
incorrect in any material respect as of the time when the same shall
have been made, and 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 Trustee or to the Issuer and the Trustee by Noteholders
representing at least 25% of the Voting Interest thereof, voting
together as a single Class, 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;
(e) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer or any
substantial part of the Indenture 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 Indenture
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
29
36
(f) the commencement by the Issuer of a voluntary
Proceeding 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 Proceeding 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 with respect to the Issuer or any substantial part of the
Indenture Trust Estate, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer
generally to pay its debts as such debts become due, or the taking of
action by the Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Trustee, within five days after
obtaining knowledge of the occurrence thereof, written notice in the form of an
Officer's Certificate of any event that with the giving of notice and the lapse
of time would become an Event of Default under paragraph (c) above, its status
and what action the Issuer is taking or proposes to take with respect thereto.
If the Trustee knows or has received notice that an Event of Default has
occurred and is continuing, the Trustee shall mail to each Noteholder notice of
such Event of Default within 30 days after obtaining knowledge or receiving
notice thereof. Except in the case of a failure to pay principal of or
interest on any Note, the Trustee may withhold such notice if and so long as it
determines in good faith that withholding such notice is in the interests of
the Noteholders.
Section 5.02. Rights upon Event of Default.
(a) If an Event of Default shall have occurred and be continuing,
the Trustee may (or, if so requested in writing by Noteholders representing not
less than a majority of the Outstanding Amount, voting together as a single
Class, shall) declare by written notice to the Issuer that the Notes are to
become, whereupon they shall become, immediately due and payable at par,
together with accrued interest thereon. Such declaration may be rescinded by a
request in writing to the Trustee by Noteholders representing not less than a
majority of the Outstanding Amount, voting together as a single Class.
Following a declaration of acceleration upon an Event of Default, (i) the
Noteholders shall be entitled to ratable repayment of principal on the basis of
their respective Outstanding Amounts and (ii) repayment in full of the accrued
interest on the Notes, and any such payments shall be made prior to any further
payment of interest on the Certificates or in respect of the Certificate
Balance.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Issuer covenants that if the Notes are accelerated
following the occurrence of an Event of Default, the Issuer shall, upon demand
of the Trustee, pay to it, for the benefit of the Noteholders, the entire
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, upon 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
Trustee and its agents and counsel.
(b) The Trustee hereby irrevocably and unconditionally appoints
the Owner Trustee as the true and lawful attorney-in-fact of such Person for so
long as such Person is not the Owner
30
37
Trustee, with full power of substitution, to execute, acknowledge and deliver
any notice, document, certificate, paper, pleading or instrument and to do in
the name of the Owner Trustee as well as in the name, place and stead of such
Person such acts, things and deeds for or on behalf of and in the name of such
Person under this Indenture (including specifically under Section 5.04) and
under the other Basic Documents that such Person could or might do or that may
be necessary, desirable or convenient in such Owner Trustee's sole discretion
to effect the purposes contemplated hereunder and under the other Basic
Documents and, without limitation, following the occurrence of an Event of
Default, exercise full right, power and authority to take, or defer from
taking, any and all acts with respect to the administration, maintenance or
disposition of the Indenture Trust Estate.
(c) If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce the rights of the
Noteholders, by such appropriate Proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether (i) for the specific
enforcement of any covenant or agreement in this Indenture, (ii) in aid of the
exercise of any power granted herein, (iii) to collect amounts due or foreclose
on the property of the Trust, (iv) to exercise remedies as a secured party, (v)
to sell the Receivables or (vi) to enforce any other proper remedy or legal or
equitable right vested in the Trustee by this Indenture or by law.
Notwithstanding the foregoing, the Trustee may elect to have the Trust maintain
possession of the Receivables and continue to apply collections on the
Receivables as if there had been no declaration of acceleration.
(d) In case there shall be pending, relative to the Issuer or any
other obligor on the Notes or any Person having or claiming an ownership
interest in the Indenture Trust Estate, Proceedings under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its property
or such other obligor or Person, or in case of any other comparable judicial
Proceedings relative to the Issuer or other obligor upon the Notes, or to the
creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of any Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
Proceedings or otherwise:
(i) to file and prove 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 Trustee (including any Claim for
reasonable compensation to the Trustee and each predecessor Trustee,
and their respective agents, attorneys and counsel, and for
reimbursement of all Liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee, except as a result of
negligence or bad faith) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations,
to vote on behalf of the Noteholders in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings;
31
38
(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 Trustee on their behalf; and
(iv) to file such proofs of Claim and other papers or
documents as may be necessary or advisable in order to have the Claims
of the Trustee or the Noteholders allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of the Noteholders to make
payments to the Trustee, and, in the event that the Trustee shall consent to
the making of payments directly to the Noteholders, to pay to the Trustee such
amounts as shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and counsel,
and all other Liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Noteholder or to authorize
the Trustee to vote in respect of the Claim of any Noteholder in any such
proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar Person.
(f) All rights of action and of asserting Claims under this
Indenture or under any Note, may be enforced by the Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee, each predecessor Trustee and
their respective agents and attorneys, shall be for the ratable benefit of the
Noteholders.
(g) In any Proceedings brought by the Trustee (including any
Proceedings involving the interpretation of any provisions of this Indenture),
the Trustee shall be held to represent all the Noteholders, and it shall not be
necessary to make any Noteholder a party to any such Proceedings.
Section 5.04. Remedies. If an Event of Default shall have occurred
and be continuing, the Owner Trustee may (subject to Sections 5.02 and 5.05):
(a) institute Proceedings in its own name and as or on
behalf of a 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;
(b) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to the
Indenture Trust Estate;
32
39
(c) exercise any remedies of a secured party under the
UCC and any other remedy available to the Trustee and take any other
appropriate action to protect and enforce the rights and remedies of
the Trustee on behalf of the Noteholders under this Indenture or the
Notes; and
(d) direct the Trustee or the Servicer to sell or
otherwise liquidate the Indenture Trust Estate or any portion thereof
or rights or interests therein, at one or more public or private sales
called and conducted in any manner permitted by law and deliver the
proceeds of such sale or liquidation to the Trustee for distribution
in accordance with the terms of this Indenture; provided, however,
that except as otherwise provided in the immediately succeeding
sentence, no such sale or liquidation may be made if the proceeds of
such sale or liquidation distributable to the Noteholders would not be
sufficient to pay all outstanding principal of and accrued interest on
the Notes. Notwithstanding the foregoing, the proceeds of such sale
or liquidation need not be sufficient to pay all outstanding principal
of and accrued interest on the Notes if the Trustee is the Owner
Trustee and (A) Noteholders representing 100% of the Voting Interest
thereof, voting together as a single Class, consent to such sale or
liquidation or (B) (1) the Trustee determines that the Indenture Trust
Estate will not continue to provide sufficient funds for the payment
of principal of and interest on the Notes as they would have become
due if the Notes had not been declared due and payable, (2) the
Trustee provides prior written notice of such sale or liquidation to
each Rating Agency and (3) Noteholders representing 66 2/3% of the
Voting Interest thereof, voting together as a single Class, consent to
such sale or liquidation. In determining such sufficiency or
insufficiency of (i) the proceeds of such sale or liquidation to pay
all outstanding principal of and accrued interest on the Notes or (ii)
the Indenture Trust Estate to provide sufficient funds for the payment
of principal of and interest on the Notes as they would have become
due if the Notes had not been declared due and payable, the Trustee
may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the
Indenture Trust Estate for such purpose.
Section 5.05. Preservation of the Receivables.
(a) If the Trustee is the Owner Trustee and 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 Trustee may, but need not, elect to maintain possession of the Indenture
Trust Estate. It is the intent of the parties hereto and the Noteholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Trustee shall take such intent into account in
determining whether or not to maintain possession of the Indenture Trust
Estate. In so determining, the Trustee may, but need not, obtain and rely upon
an opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Indenture Trust Estate for such purpose.
33
40
(b) Notwithstanding anything herein to the contrary, the Trustee
shall not sell the Receivables following an Event of Default, other than an
Event of Default described in Section 5.01(a), unless (i) the Holders of all
Outstanding Notes consent to such sale, (ii) the proceeds of such sale are
sufficient to pay in full the principal of and the accrued interest on such
Outstanding Notes at the date of such sale or (iii) the Trustee determines that
the proceeds of sale of the Receivables would not be sufficient on an ongoing
basis to make all payments on the Notes as such payments would have become due
if such obligations had not been declared due and payable, and the Trustee
obtains the consent of Noteholders representing not less than 66 2/3% of the
Voting Interest thereof.
Section 5.06. Priorities.
(a) If the Trustee collects any money or property pursuant to this
Article, it shall pay out such money or property in the following order and
priority:
(i) amounts due and owing and required to be distributed
to the Servicer pursuant to Section 6.07(b)(i) of the Sale and
Servicing Agreement and not previously distributed;
(ii) to each Class of Noteholders, accrued and unpaid
interest on the outstanding principal amount of the related Class of
Notes at the related Interest Rate, together with, to the extent
permitted by applicable law, interest at the related Interest Rate on
any interest accrued but not timely paid;
(iii) to the Holders of the Class A-1 Notes for amounts due
and unpaid on the Class A-1 Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class A-1 Notes for principal, until the Outstanding
Amount of the Class A-1 Notes is reduced to zero;
(iv) to the Holders of the Class A-2 Notes for amounts due
and unpaid on the Class A-2 Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class A-2 Notes for principal, until the Outstanding
Amount of the Class A-2 Notes is reduced to zero;
(v) to the Holders of the Class A-3 Notes for amounts due
and unpaid on the Class A-3 Notes for principal, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Class A-3 Notes for principal, until the Outstanding
Amount of the Class A-3 Notes is reduced to zero;
(vi) amounts due and unpaid on the Certificates for
interest and principal, to the Owner Trustee for distribution to the
Certificateholders in accordance with Section 5.02(a) of the Trust
Agreement; and
(vii) any amounts remaining after making the distributions
described in clauses (i) through (vi) above, shall be deposited into
the Note Distribution Account for payment to Noteholders as an
Accelerated Principal Distribution Amount.
34
41
(b) The 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 Trustee a notice
that states such record date, the payment date and the amount to be paid.
Section 5.07. Limitation of Suits. No Noteholder shall have any
right to institute any Proceeding with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(a) such Noteholder has previously given written notice
to the Trustee of a continuing Event of Default;
(b) Noteholders representing not less than 25% of the
Voting Interest thereof, voting together as a single Class, have made
written request to the Trustee to institute such Proceeding in respect
of such Event of Default in its own name as Trustee hereunder;
(c) such Noteholder has offered to the Trustee reasonable
indemnity against the Liabilities to be incurred in complying with
such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceedings; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by Noteholders
representing a majority of the Outstanding Amount, voting together as
a single Class.
It is understood and intended that no Noteholder 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 Noteholders
or to obtain or to seek to obtain priority or preference over any other
Noteholder or to enforce any right under this Indenture, except in the manner
provided herein.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Noteholders, each
representing less than a majority of the Outstanding Amount, the Trustee in its
sole discretion may determine what action, if any, shall be taken,
notwithstanding any other provisions of this Indenture.
Section 5.08. Unconditional Rights of Noteholders to Receive
Principal and Interest. Notwithstanding any other provision in this Indenture,
any Noteholder shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on such Noteholder's 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 Noteholder.
35
42
Section 5.09. Restoration of Rights and Remedies. If the Owner
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Trustee or to
such Noteholder, then and in every such case the Issuer, the Trustee and the
Noteholders shall, subject to any determination in such Proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Noteholders shall continue as
though no such Proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Owner Trustee or 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 of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion of any other
appropriate right or remedy.
Section 5.11. Delay or Omission Not a Waiver. No delay or omission
of the Owner Trustee or any Noteholder 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 Trustee
or the Noteholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or the Noteholders, as the case may be.
Section 5.12. Control by Noteholders. Noteholders representing a
majority of the Outstanding Amount, voting together as a single Class, shall
have the right to direct the time, method and place of conducting any
Proceeding or any remedy available to the Trustee with respect to the Notes or
exercising any trust or power conferred upon the Trustee; provided, that:
(a) such direction shall not be in conflict with any rule
of law or this Indenture;
(b) subject to the terms of Section 5.04, any direction
to the Trustee to sell or liquidate the Indenture Trust Estate shall
be by Noteholders representing not less than 100% of the Voting
Interest thereof;
(c) if the conditions set forth in Section 5.05 have been
satisfied and the Trustee elects to retain the Indenture Trust Estate
pursuant to such Section, any direction to the Trustee by Noteholders
representing less than 100% of the Voting Interest thereof to sell or
liquidate the Indenture Trust Estate shall be of no force and effect;
and
(d) the Trustee may take any other action deemed proper
by the Trustee that is not inconsistent with such direction.
Notwithstanding the rights of the Noteholders set forth in this Section,
subject to Section 6.01, the Trustee need not take any action that it
determines, in its sole discretion, might involve it in Liability or that might
materially adversely affect the rights of any Noteholders not consenting to
such action.
36
43
Section 5.13. Waiver of Past Defaults. Noteholders representing 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 that cannot be modified without the waiver or consent of
each Noteholder. In the case of any such waiver, the Issuer, the Trustee and
the Noteholders shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereto. Upon any such waiver,
such Default shall cease to exist and be deemed to have been cured and not to
have occurred, and any Event of Default arising therefrom shall be deemed to
have been cured and not to have occurred, for every purpose of this Indenture.
Section 5.14. Undertaking for Costs. All parties to this Indenture
agree, and each Noteholder by its acceptance of a Note shall be deemed to have
agreed, that any court may in its discretion require, in any Proceeding for the
enforcement of any right or remedy under this Indenture, or in any Proceeding
against the Trustee for any action taken, suffered to be taken or omitted by it
as Trustee, the filing by any party litigant in such Proceeding of an
undertaking to pay the costs of such Proceeding and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such Proceeding, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (i) any Proceeding instituted by
the Trustee, (ii) any Proceeding 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 Proceeding instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or after
the respective Note Final Scheduled Distribution Dates expressed in such Note
and in this Indenture (or, in the case of redemption, on or after the
Redemption Date).
Section 5.15. 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 and 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 advantages of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
Section 5.16. Action on Notes. The Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking or obtaining of, or the application for, any other relief under or
with respect to this Indenture. Neither the Lien of this Indenture nor any of
the rights or remedies of the Trustee or the Noteholders shall be impaired by
the recovery of any judgment by the Trustee against the Issuer or by the levy
of any execution under such judgment upon any portion of the Indenture Trust
Estate or upon any of the assets of the Issuer. Any money or property
collected by the Trustee shall be applied in accordance with Section 5.06.
37
44
Section 5.17. Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Trustee to do so and at
the Administrator's expense, the Issuer shall take such lawful action as the
Trustee may request to compel or secure the performance and observance by the
Seller and the Servicer, as applicable, of each of their obligations to the
Issuer under or in connection with the Sale and Servicing Agreement in
accordance with the terms thereof, and to exercise any and all rights,
remedies, powers and privileges lawfully available to the Issuer under or in
connection with the Sale and Servicing Agreement, to the extent and in the
manner directed by the Trustee, including the transmission of notices of
default on the part of the Seller or the Servicer thereunder and the
institution of legal or administrative 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 the Trustee is the Owner Trustee and if an Event of Default
has occurred and is continuing, the Trustee may, and at the direction (which
direction shall be in writing and may include a facsimile) of Noteholders
representing 66 2/3% of the Voting Interest thereof, 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 under the Sale and Servicing Agreement 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.
38
45
ARTICLE SIX
THE TRUSTEE
Section 6.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture
using the same degree of care and skill in their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs; provided, however, that if the Trustee shall assume the duties of
the Servicer pursuant to Section 3.07(e), the Trustee in performing such duties
shall use that degree of care and skill customarily exercised by a prudent
institutional servicer with respect to motor vehicle retail installment sales
contracts that it services for itself or others.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes 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 Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture, as to
the truth of the statements and the correctness of the opinions
expressed therein; provided, that the Trustee shall examine such
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture and the other Basic Documents to
which the Trustee is a party.
(c) The Trustee may not be relieved from Liability for its own
negligent action, its own negligent failure to act or its own wilful
misconduct; provide, that:
(i) this paragraph does not limit the effect of Section
6.01(b);
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the 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 5.12.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it.
39
46
(f) Funds held in trust by the Trustee need not be segregated from
other funds, except to the extent required by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial Liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
repayments 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 Trustee shall be
subject to the provisions of this Section and the provisions of the TIA.
(i) The Trustee shall, and hereby agrees that it will, perform all
obligations and duties required of it under the Sale and Servicing Agreement.
(j) Except as otherwise required or permitted by the TIA, nothing
contained herein shall be deemed to authorize the Trustee to engage in any
business operations or any activities other than those set forth in this
Indenture. Specifically, the Trustee shall have no authority to engage in any
business operations, acquire any assets other than those specifically included
in the Indenture Trust Estate under this Indenture or otherwise vary the assets
held by the Trust. Similarly, the Trustee shall have no discretionary duties
other than performing those ministerial acts set forth above necessary to
accomplish the purpose of this Trust as set forth in this Indenture.
(k) Notwithstanding the foregoing, the obligations of Trustee
pursuant to this Indenture shall terminate with respect to the Securityholders
upon the earliest to occur of (i) the maturity or other liquidation of the last
Receivable and the disposition of any amounts received upon liquidation of any
property remaining in the Trust, (ii) the payment to Securityholders of all
amounts required to be paid to them pursuant to this Indenture and (iii) the
occurrence of either event described in Section 6.03(l).
Section 6.02. Optional Purchase; Auction. Upon an Optional Purchase
or an Auction pursuant to Article Ten of the Sale and Servicing Agreement, the
Trustee shall give written notice of termination to each Noteholder of record.
The final distribution to each Noteholder shall be made only upon surrender and
cancellation of such Holder's Notes at the office or agency of the Trustee
specified in the notice of termination.
Section 6.03. Rights of Trustee.
(a) Except as otherwise provided in Section 6.03(g) and the second
succeeding sentence, the Trustee may conclusively rely and shall be protected
in acting upon or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, note,
direction, demand, election or other paper or document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not
40
47
investigate any fact or matter stated in any such document. Notwithstanding
the foregoing, the Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee that shall be specifically required to be furnished pursuant to
any provision of this Indenture, shall examine such documents to determine
whether or not such documents comply, as to form, to the requirements of this
Indenture.
(b) Before the Trustee acts or refrains from acting, it may
require an Officer's Certificate (with respect to factual matters) or an
Opinion of Counsel, as applicable. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance upon such Officer's
Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee, and the Trustee shall not be responsible
for any misconduct or negligence on the part of, or for the supervision of, any
such agent, attorney, custodian or nominee appointed with due care by it
hereunder.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel, and the advice or
Opinion of Counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from
Liability in respect to any action taken, omitted or suffered to be taken by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers under this Indenture at the request, order or direction of
any Noteholder, if it reasonably believes it will not be adequately indemnified
against any Liability that might be incurred by it in complying with such
request, unless the Noteholders shall have offered to the Trustee reasonable
security or indemnity against any Liability that may be incurred therein or
thereby; provided, however, that the Trustee shall, upon the occurrence of an
uncured Event of Default, exercise the rights and powers vested in it by this
Indenture with reasonable care and skill.
(g) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by Noteholders
evidencing not less than 25% of the Voting Interest thereof; provided, however,
that if the payment within a reasonable time to the Trustee of the Liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture or the Sale and Servicing
Agreement, the Trustee may require reasonable indemnity against such Liability
as a condition to so proceeding. The reasonable expense of each such
investigation shall be paid by
41
48
the Person making such request or, if paid by the Trustee, shall be reimbursed
by the Person making such request upon demand.
Section 6.04. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer and its Affiliates with the same rights as
it would have if it were not the Trustee. Any Paying Agent, Note Registrar,
co-registrar or co-paying agent may do the same, with like rights.
Notwithstanding the foregoing, the Trustee shall comply with Sections 6.12 and
6.13.
Section 6.05. Trustee's Disclaimer. The Trustee shall not (i) be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, the Indenture Trust Estate or the Notes, (ii) be accountable
for the Issuer's use of the proceeds from the Notes or (iii) be responsible for
any statement of the Issuer in (a) this Indenture or in any document issued in
connection with the sale of the Notes or (b) the Notes, other than the
Trustee's certificate of authentication.
Section 6.06. Notice of Defaults. If a Default occurs and is
continuing and if it is known to a Responsible Officer of the Trustee, the
Trustee shall mail to each Noteholder notice of such 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 redemption of Notes),
the Trustee may withhold notice if and so long as a committee of its
Responsible Officers determines in good faith that withholding notice is in the
interests of the Noteholders.
Section 6.07. Reports by Trustee to Noteholders. The Trustee shall
deliver to each Noteholder such information as may be required to enable such
Noteholder to prepare its federal and state income tax returns.
Section 6.08. Compensation and Indemnity. The Issuer shall, or shall
cause the Administrator to, pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Issuer shall,
or shall cause the Administrator to, reimburse the Trustee for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection,
in addition to compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Issuer shall, or shall
cause the Administrator to, indemnify the Trustee against any Loss incurred by
it in connection with the administration of this trust and the performance of
its duties hereunder. The Trustee shall notify the Issuer and the
Administrator promptly of any Claim for which it may seek indemnity. Failure
by the 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
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 make any reimbursement or indemnification
with respect to any Loss incurred by the Trustee through the Trustee's own
willful misconduct, negligence or bad faith.
42
49
The Issuer's payment obligations to the Trustee pursuant to this
Section shall survive the discharge of this Indenture. When the Trustee incurs
expenses after the occurrence of a Default specified in Section 5.01(iv) or
Section 5.01(v) with respect to the Issuer, such 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 6.09. Replacement of Trustee. The Trustee may resign at any
time by so notifying the Issuer and the Servicer. The Issuer may remove the
Trustee if:
(a) the Trustee fails to comply with Section 6.12;
(b) a court having jurisdiction in the premises in
respect of the Trustee in an involuntary 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) with respect to the
Trustee or any substantial part of the Trustee's property, or ordering
the winding up or liquidation of the Trustee's affairs; provided, that
any such decree or order shall have continued unstayed and in effect
for a period of 30 consecutive days;
(c) the Trustee commences a voluntary Proceeding under
any federal or state banking or bankruptcy law, 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 with
respect to the Trustee or any substantial part of the 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
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuer shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The Issuer or the successor Trustee shall mail a notice
of its succession to the Noteholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or
Noteholders representing a majority of the
43
50
Outstanding Amount may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.12, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to the provisions of this Section shall not become
effective until acceptance of appointment by the successor Trustee pursuant to
this Section and payment of all fees and expenses owed the outgoing Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section, the
retiring Trustee shall be entitled to payment or reimbursement of such amounts
as such Person is entitled pursuant to Section 6.08.
Section 6.10. Successor Trustee by Merger. If the Trustee
consolidates or merges with, converts into or transfers all or substantially
all its corporate trust business or assets to another corporation or banking
association, the resulting, surviving or transferee corporation shall, without
any further act, be the successor Trustee; provided, that such corporation or
banking association shall be otherwise qualified and eligible under Section
6.12. The Trustee shall provide each Rating Agency prompt notice of any such
transaction.
In the case that at the time such successor by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture, any of the Notes shall have been authenticated but not delivered,
any such successor may adopt the certificate of authentication of any
predecessor trustee and deliver such Notes so authenticated; and in the case
that at that time any of the Notes shall not have been authenticated, any such
successor may authenticate such Notes either in the name of any predecessor
hereunder or in the name of such successor; and in all such cases, such
certificates shall have the full force as is provided anywhere in the Notes or
this Indenture that the certificate of the Trustee shall have.
Section 6.11. 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 Indenture Trust Estate may at such time be located, the
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, jointly with the Trustee, 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 Indenture Trust Estate or any part thereof and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Trustee and the Administrator 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 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
6.12, and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.09.
44
51
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the 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 Trustee
shall be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article. 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 co-appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all of the
provisions of this Indenture, specifically including every provision relating
to the conduct of, affecting the Liability of or affording protection to the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Administrator.
(d) Any separate trustee or co-trustee may at any time constitute
the Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee. Notwithstanding anything to the
contrary in this Indenture, the appointment of any separate trustee or
co-trustee shall not relieve the Trustee of its obligations and duties under
this Indenture.
Section 6.12. Eligibility; Disqualification.
(a) The 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. The Trustee shall comply with TIA Section 310(b); provided,
however, that there shall be excluded from the operation of TIA
45
52
Section 310(b)(1) any indenture or indentures under which other securities of
the Issuer are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
(b) If the long-term debt rating of the Trustee shall not be at
least Baa3 from Moody's and BBB- from Standard & Poor's, each Rating Agency
shall be given notice of such lower long-term debt rating.
Section 6.13. Preferential Collection of Claims Against Issuer. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee that has resigned or has
been removed shall be subject to TIA Section 311(a) to the extent indicated.
Section 6.14. Representations and Warranties of Trustee. The Trustee
hereby makes the following representations and warranties on which the Issuer
and the Noteholders may rely:
(a) it is a ____________ duly organized, validly existing
and in good standing under the laws of its place of incorporation; and
(b) 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.
46
53
ARTICLE SEVEN
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Trustee Names and Addresses of
Noteholders. The Issuer shall furnish or cause to be furnished to the 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 Trustee
may reasonably require, of the names and addresses of the Noteholders as of
such Record Date and (ii) at such other times as the 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 Trustee is
the Note Registrar, no such list need be furnished.
Section 7.02. Preservation of Information; Communications to
Noteholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Noteholders contained in
the most recent list furnished to the Trustee as provided in Section 7.01 and
the names and addresses of the Noteholders received by the Trustee in its
capacity as Note Registrar. The 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 the
Notes.
(c) The Issuer, the Trustee and the Note Registrar shall have the
protection of TIA Section 312(c).
Section 7.03. Reports by Issuer.
(a) The Issuer shall:
(i) file with the Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) 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 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
47
54
(iii) supply to the Trustee (and the 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 paragraph
as may be required by rules and regulations prescribed from time to
time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
Section 7.04. Reports by Trustee. To the extent that any of the
events described in TIA Section 313(a) shall have occurred, the Trustee shall,
within 60 days after each ____________ 15 beginning with ____________ 15, 199 ,
mail to each Noteholder as required by TIA Section 313(c) a brief report dated
as of such date that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Section 313(b).
A copy of each report at the time of its mailing to the Noteholders
shall be filed by the Trustee with the Commission and with each stock exchange,
if any, on which the Notes are listed and of which listing the Trustee has been
informed. The Issuer shall notify the Trustee if and when the Notes are listed
on any stock exchange.
48
55
ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money. Except as otherwise expressly
provided herein, the Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Trustee pursuant to this Indenture. The Trustee shall apply
all such money received by it as provided in this Indenture. 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 Indenture Trust Estate, the Trustee may take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article Five.
Section 8.02. Trust Accounts.
(a) On or prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain, in the name of the Trustee, for the benefit
of the Securityholders, the Trust Accounts as provided in Section 5.01 of the
Sale and Servicing Agreement.
(b) All collections with respect to each Collection Period shall
be deposited in the Collection Account as provided in Section 5.02 of the Sale
and Servicing Agreement. On each Deposit Date, all amounts required to be
deposited in the Note Distribution Account with respect to the preceding
Collection Period pursuant to Section 5.05 of the Sale and Servicing Agreement
shall be transferred to the Note Distribution Account.
(c) On each Distribution Date, the Trustee shall distribute all
amounts on deposit in the Note Distribution Account in respect of such
Distribution Date to the Noteholders to the extent of amounts due and unpaid on
the Notes for principal and interest as follows:
(i) to each Class of Noteholders, accrued and unpaid
interest on the Outstanding Amount of the related Class of Notes at
the related Interest Rate;
(ii) to the Class A-1 Noteholders in reduction of the
Outstanding Amount of the Class A-1 Notes until the Outstanding Amount
of the Class A-1 Notes is reduced to zero;
(iii) to the Class A-2 Noteholders in reduction of the
Outstanding Amount of the Class A-2 Notes until the Outstanding Amount
of the Class A-2 Notes is reduced to zero; and
49
56
(iv) to the Class A-3 Noteholders in reduction of the
Outstanding Amount of the Class A-3 Notes until the Outstanding Amount
of the Class A-3 Notes is reduced to zero.
If the amount available for the foregoing payments is less than the amount of
interest payable on the Notes on a Payment Date, each Class of Noteholders
shall receive its ratable share (based upon the aggregate amount of interest
due to such Class of Noteholders) of the aggregate amount available to be
distributed in respect of interest on the Notes. To the extent not previously
paid in full, the principal amount of the Class A-1 Notes, the Class A-2 Notes
and the Class A-3 Notes shall be due on the Class A-1 Final Scheduled
Distribution Date, the Class A-2 Final Scheduled Distribution Date and the
Class A-3 Final Scheduled Distribution Date, respectively.
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 Trust Accounts (other
than the Certificate Distribution Account) shall be invested in Permitted
Investments and reinvested by the Trustee upon receipt of an Issuer Order,
subject to the provisions of Section 5.01(b) of the Sale and Servicing
Agreement. Except as otherwise provided in Section 5.01(b) of the Sale and
Servicing Agreement, all net income or other gain from investments of monies
deposited in such Trust Accounts shall be deposited by the Trustee in the
Collection Account. The Issuer shall not direct the Trustee to make any
investment of any funds or to sell any investment held in any of the Trust
Accounts unless the security interest Granted and perfected in such Trust
Account will continue to be perfected in such investment or the proceeds of
such sale, in either case without any further action by any Person, and, in
connection with any direction to the Trustee to make any such investment or
sale, if requested by the Trustee, the Issuer shall deliver to the Trustee an
Opinion of Counsel acceptable to the Trustee to such effect.
(b) Subject to Section 6.01(c), the Trustee shall not in any way
be held liable by reason of any insufficiency in any of the Trust Accounts
resulting from any Loss on any Permitted Investment included therein except for
Losses attributable to the Trustee's failure to make payments on such Permitted
Investments issued by the Trustee, in its commercial capacity as principal
obligor and not as Trustee, in accordance with their terms.
(c) If (i) the Issuer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Trustee by
___:00 __.m., ________ time (or such other time as may be agreed by the Issuer
and Trustee) on any Business Day, (ii) a Default or Event of Default shall have
occurred and be continuing with respect to the Notes but the Notes have not
been declared due and payable pursuant to Section 5.02 or (iii) if the Notes
have been declared due and payable following an Event of Default but amounts
collected or receivable from the Indenture Trust Estate are being applied in
accordance with Section 5.05 as if there had not been such a declaration; then
the Trustee shall, to the fullest extent practicable, invest and reinvest funds
in the Trust Accounts in one or more Permitted Investments.
50
57
Section 8.04. Release of Indenture Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.08, the Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property from the Lien of this
Indenture, or convey the Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Trustee as provided in this
Article shall be bound to ascertain the Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
monies.
(b) The Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Trustee pursuant to Section 6.08 have been
paid, release any remaining portion of the Indenture 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 Trust Accounts.
The Trustee shall release property from the Lien of this Indenture pursuant to
this paragraph 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 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
Trustee shall also require, as a condition to such action, an Opinion of
Counsel, in form and substance satisfactory to the Trustee, stating the legal
effect of any such action, outlining the steps required to complete the same,
and concluding that all 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
Indenture Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Trustee in connection with any such action.
51
58
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Noteholders and with prior notice
to each Rating Agency, the Issuer and the Trustee, when authorized by an Issuer
Order, and the other parties hereto 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 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 or confirm unto the Trustee any property subject or
required to be subjected to the Lien created by this Indenture, or to
subject additional property to the Lien created by 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
contained herein and in the Notes;
(iii) to add to the covenants of the Issuer, for the
benefit of the Noteholders, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee;
(v) to cure any ambiguity, 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 Basic Documents or make any other provisions with
respect to matters or questions arising under this Indenture or in any
supplemental indenture that shall not be inconsistent with the
provisions of this Indenture; provided, that any such action shall not
adversely affect the interests of the Noteholders;
(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 he expressly required by the TIA.
52
59
The Trustee is hereby authorized to join in the exemption of any such
supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Trustee, when authorized by an Issuer
Order, may, without the consent of the Noteholders and 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 Noteholders under this Indenture; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Noteholder.
Section 9.02. Supplemental Indentures With Consent of Noteholders.
The Issuer and the Trustee, when authorized by an Issuer Order, may, with prior
notice to each Rating Agency and with the consent of Noteholders representing
not less than a majority of the Outstanding Amount, by Act of such Noteholders
delivered to the Issuer and the Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Noteholders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(a) 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
Indenture Trust Estate to payment of principal of or interest on the
Notes, or change any place of payment where, or the coin or currency
in which, any Note or the interest thereon is payable, or impair the
right to institute Proceedings 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);
(b) reduce the percentage of the Outstanding Amount
required to be represented by the consent of Noteholders for any such
supplemental indenture or for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(c) modify or alter the provisions of the second proviso
to the definition of the term "Outstanding";
(d) reduce the percentage of the Outstanding Amount
required to direct the Trustee to sell or liquidate the Indenture
Trust Estate pursuant to Section 5.04 or amend the provisions of this
Article that specify the percentage of the Outstanding Amount required
to amend this Indenture or the other Basic Documents;
53
60
(e) modify any provision of this Section except to
increase any percentage specified herein or to provide that certain
additional provisions of this Indenture or the other Basic Documents
cannot be modified or waived without the consent of the Noteholder of
each Outstanding Note affected thereby; or
(f) permit the creation of any Lien ranking prior to or
on a parity with the Lien created by this Indenture with respect to
any part of the Indenture Trust Estate or, except as otherwise
permitted or contemplated herein, terminate the Lien created by this
Indenture on any property at any time subject hereto or deprive any
Noteholder of the security provided by the Lien created by this
Indenture.
The Trustee may in its discretion determine whether or not any Notes
would be affected by any supplemental indenture and any such determination
shall be conclusive upon all Noteholders, whether theretofore or thereafter
authenticated and delivered hereunder. The Trustee shall not be liable for any
such determination made in good faith.
It shall not be necessary for any 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.
Promptly after the execution by the parties hereto of any supplemental
indenture pursuant to this Section, the Trustee shall mail to the Noteholders
to which such amendment or supplemental indenture relates a notice setting
forth in general terms the substance of such supplemental indenture. Any
failure of the Trustee to mail such notice, or any defect therein, shall not 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 modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and subject to
Sections 6.01 and 6.03 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 Trustee may, but shall not be obligated
to, enter into any such supplemental indenture that affects the 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 parties hereto and the Noteholders shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be, and shall be deemed to be, part of the terms
and conditions of this Indenture for any and all purposes.
54
61
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 Trust Indenture Act as then in
effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
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 Trustee, shall, bear a
notation in a form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Issuer or the Trustee shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Issuer, to any such supplemental indenture may be prepared and executed by the
Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
55
62
ARTICLE TEN
REDEMPTION OF NOTES
Section 10.01. Redemption.
(a) In the event of an Optional Purchase or an Auction, each Class
of Notes Outstanding shall be redeemed in whole, but not in part.
Notwithstanding the foregoing, the Class A-3 Notes shall be subject to
redemption in whole, but not in part, on any Distribution Date relating to an
Optional Purchase or an Auction; provided, that such Distribution Date occurs
after the Class A-1 Notes and the Class A-2 Notes have been paid in full.
(b) The Notes shall be subject to Mandatory Redemption on the
Distribution Date on or immediately following the last day of the Funding
Period in the event that any portion of the Pre-Funded Amount, exclusive of any
Investment Earnings thereon, remains on deposit in the Pre-Funding Account,
after giving effect to the purchase by the Seller and conveyance to the Trust
of all Subsequent Receivables on the related Subsequent Transfer Dates,
including any such purchase and conveyance on the date on which the Funding
Period ends. If such remaining Pre-Funded Amount is less than or equal to
$100,000.00, such amount shall be applied to redeem the Class A-1 Notes until
the principal amount of the Class A-1 Notes has been reduced to zero, and any
remaining amount shall be applied to redeem the Class A-2 Notes. If such
remaining Pre-Funded Amount is greater than $100,000.00, such amount shall be
used to redeem each Class of Notes and to prepay the Certificates in accordance
with Section 3.15 of the Trust Agreement. The Outstanding Amount of each Class
of Notes to be redeemed shall be an amount equal to the Pre-Funded Percentage
of such Class of Notes, multiplied by such remaining Pre-Funded Amount.
Section 10.02. Form of Redemption Notice.
(a) Notice of redemption under Section 10.01 shall be given by the
Trustee by first class mail, postage prepaid, mailed not less than five days
prior to the applicable Redemption Date to each Noteholder, as of the close of
business on the Record Date preceding the applicable Redemption Date, at such
Noteholder's address appearing in the Note Register. The Administrator shall
notify each Rating Agency upon the redemption of any Class of Notes, pursuant
to Section 1(a)(i) of the Administration Agreement.
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
56
63
(iv) that on the Redemption Date, the Redemption Price
will become due and payable on 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 Trustee in the
name and at the expense of the Issuer. Failure to give notice of redemption
(or any defect therein) to any Noteholder shall not impair or affect the
validity of the redemption of any other Note.
(b) Prior notice of redemption under Section 10.01(b) need not be
given to Noteholders.
Section 10.03. Notes Payable on Redemption Date. The Notes or
portions thereof to be redeemed shall, following notice of redemption (if any)
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.
57
64
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions.
(a) Upon any application or request by the Issuer to the Trustee
to take any action under any provision of this Indenture, the Issuer shall
furnish to the Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this 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. Notwithstanding the foregoing, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or
condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation
as is necessary to enable such signatory to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Trustee that is to be made the basis
for the release of any property subject to the Lien created by this
Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.01(a) or elsewhere in this Indenture, furnish to the
Trustee an Officer's Certificate certifying or stating the opinion of
the signer thereof 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.
58
65
(ii) Whenever the Issuer is required to furnish to the
Trustee an Officer's Certificate certifying or stating the opinion of
any signer thereof as to the matters described in clause (i) above,
the Issuer shall also deliver to the Trustee an Independent
Certificate as to the named matters, if the fair value to the Issuer
of the property to be so deposited and of all other such property 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
Officer's Certificates delivered pursuant to clause (i) above and this
clause, is 10% or more of the Outstanding Amount, but such Officer's
Certificate need not be furnished with respect to any property 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.
(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 created by this Indenture,
the Issuer shall also furnish to the Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such release) of
the property or securities proposed to be released and stating that in
the opinion of such person, such proposed release will not impair the
security created by this Indenture in contravention of the provisions
hereof.
(iv) Whenever the Issuer is required to furnish the
Trustee with 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 the Trustee with an
Independent Certificate as to the same matters if the fair value of
the property or securities and of all other property or securities
(other than property described in clauses (A) or (B) of Section
11.01(b)(v)) released from the Lien created by this Indenture since
the commencement of the then-current fiscal year, as set forth in the
Officer's Certificates required by clause (iii) above and this clause,
equals 10% or more of the Outstanding Amount, but such Officer's
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 any other provision of this Section,
the Issuer may, without compliance with the other provisions of this
Section, (A) collect, liquidate, sell or otherwise dispose of the
Receivables as and to the extent permitted or required by the Basic
Documents, (B) make cash payments out of the Trust Accounts as and to
the extent permitted or required by the Basic Documents, so long as
the Issuer shall deliver to the Trustee every six months, commencing
________ 15, 199 , an Officer's Certificate stating that all the
dispositions of Collateral described in clauses (A) or (B) 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 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
59
66
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.
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 Authorized Officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Servicer, the Seller or the Issuer, stating that the information with
respect to such factual matters is in the possession of the Servicer, the
Seller or the Issuer, unless such officer or counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Trustee, it is provided that the Issuer shall
deliver any document as a condition of the granting of such application, or as
evidence of the Issuer's compliance with any term hereof, it is intended that
the truth and accuracy, at the time of the granting of such application or at
the effective date of such certificate or report (as the case may be), of the
facts and opinions stated 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 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 the Noteholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Noteholders in person or by
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 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 Trustee and the Issuer, if made in the manner
provided in this Section.
60
67
(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 Trustee deems
sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by any Noteholder 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 Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
Section 11.04. Notices to Trustee, Issuer and Rating Agencies.
(a) 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 Trustee by any Noteholder or by the Issuer, it
shall be sufficient for every purpose hereunder if in writing,
personally delivered, sent by facsimile transmission and confirmed or
mailed by overnight delivery, to or with the Trustee at its Corporate
Trust Office; or
(ii) the Issuer by the Trustee or by any Noteholder, it
shall be sufficient for every purpose hereunder if in writing,
personally delivered, sent by facsimile transmission and confirmed or
mailed by overnight delivery, to the Issuer addressed to: Fleetwood
Credit RV Receivables 199 - Owner Trust, in care of
__________________, as Owner Trustee, _________________, Attention:
_____________, or at any other address furnished in writing to the
Trustee by the Issuer.
(b) Notices required to be given to the Rating Agencies by the
Issuer, the Trustee or the Owner Trustee shall be in writing, personally
delivered, sent by facsimile transmission and confirmed or mailed by overnight
delivery, to (i) in the case of Moody's, at 99 Church Street, New York, New
York 10007, Attention: ABS Monitoring Department and (ii) in the case of
Standard & Poor's, at 26 Broadway, 20th Floor, New York, New York 10004,
Attention: Asset Backed Surveillance Department; or as to each of the
foregoing, at such other address as shall be designated by written notice to
the parties hereto.
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 his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such
61
68
notice with respect to other Noteholders, and any notice that is mailed un the
manner herein provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Trustee but
such filing shall not be a conclusion 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 of Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to a 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 provision of any Note to
the contrary, the Issuer may enter into any agreement with any Noteholder
providing for a method of payment, or notice by the Trustee or any Paying Agent
to such Noteholder, that is different from the methods provided for in this
Indenture for such payments or notices. The Issuer shall furnish to the
Trustee a copy of each such agreement and the Trustee shall 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 Trustee in this
Indenture shall bind its successors, co-trustees and agents.
62
69
Section 11.10. Separability. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 11.11. Benefits of Indenture. Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Noteholders, and any
other party secured hereunder, and any other Person with an ownership interest
in any part of the Indenture Trust Estate, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 11.12. Legal Holidays. In any case where the date on which
any payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
Section 11.13. Governing Law. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, AND THE OBLIGATIONS,
RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS INDENTURE SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS EXCEPT THAT THE DUTIES OF THE TRUSTEE SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 11.14. Counterparts. This Indenture may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 11.15. Recording of Indenture. If this Indenture is subject
to recording in any appropriate public recording offices, such recording is to
be effected by the Issuer and at its expense accompanied by an Opinion of
Counsel (which may be counsel to the Trustee or any other counsel reasonably
acceptable to the Trustee) to the effect that such recording is necessary
either for the protection of the Noteholders or any other Person secured
hereunder or for the enforcement of any right or remedy granted to the Trustee
under this Indenture.
Section 11.16. Trust Obligation. No recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Trustee on the Notes or under this Indenture or any certificate or other
writing delivered in connection herewith or therewith, against (i) the Trustee
or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent,
officer, director, employee or agent of the Trustee or the Owner Trustee in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Trustee or of any successor or assign of the Trustee or
the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Trustee and the Owner
Trustee have no such obligations in their individual capacities) and except
that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for
63
70
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 parties hereto, by entering into
this Indenture, and each Noteholder, by accepting a Note or a beneficial
interest in a Note, hereby covenant and agree that they 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 Proceeding, or other Proceeding under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, this Indenture or any of the other Basic
Documents.
Section 11.18. Inspection. The Issuer agrees that, on reasonable
prior notice, it will permit any representative of the Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested, the Trustee shall
and shall cause its representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
applications for confidential treatment are unavailing) and except to the
extent that the Trustee may reasonably determine that such disclosure is
consistent with its obligations hereunder.
Section 11.19. Limitation of Liability. Neither the Trustee nor the
Owner Trustee in its individual capacity, nor any Certificateholder, nor any of
their respective owners, beneficiaries, agents, officers, directors, employees,
affiliates, successors or assigns shall, in the absence of an express agreement
to the contrary, be personally liable for the payment of the principal of or
interest on the Notes or for the agreements of the Issuer contained in this
Indenture. Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by _____________ not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall _______________ in its individual capacity or any beneficial owner
of the Issuer have any Liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder, as to all
of which recourse shall be had solely to the assets of the Issuer. 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.
64
71
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and delivered as of the day and year first above written.
FLEETWOOD CREDIT RV RECEIVABLES
199 - OWNER TRUST
By:
---------------------------,
as Owner Trustee
By:
---------------------------,
Name:
Title:
------------------------------,
as Trustee
By:
----------------------------
Name:
Title:
72
STATE OF CALIFORNIA )
) ss
COUNTY OF )
--------------
On before me,
--------------------- ---------------------------------------,
[insert date] [Here insert name and title of notary]
personally appeared
-----------------------------------------------------------,
[ ] 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 he/she/they executed the same in his/her/their
authorized capacity(ties), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which such person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature [Seal]
73
STATE OF CALIFORNIA )
) ss
COUNTY OF )
---------
On before me,
--------------------- ---------------------------------------,
[insert date] [Here insert name and title of notary]
personally appeared
-----------------------------------------------------------,
[ ] 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 he/she/they executed the same in his/her/their
authorized capacity(ties), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which such person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature [Seal]
--------------------------------------------------
67
74
SCHEDULE A
SCHEDULE OF RECEIVABLES
Omitted -- Schedules of Receivables on file at the offices of the Seller, the
Servicer and the Owner Trustee.
SA-1
75
EXHIBIT A
FORM OF SALE AND SERVICING AGREEMENT
A-1
76
EXHIBIT B
FORM OF NOTE DEPOSITORY AGREEMENT
B-1
77
EXHIBIT C
FORM OF CLASS A-1 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.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT
INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE 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.
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST
____% ASSET BACKED NOTE, CLASS A-1
REGISTERED $_______________
No. R-__ CUSIP NO. ___________
The Fleetwood Credit RV Receivables 199 - Owner Trust, a business
trust organized and existing under the laws of the State of Delaware (the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of _______________ Dollars
($____________), payable to the extent described in the Indenture referred to on
the reverse hereof on each Distribution Date; provided, however, that the entire
unpaid principal amount of this Note shall be payable on the earlier of
____________, ____ (the "Class A-1 Final Scheduled Distribution 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 Distribution Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding on
the preceding Distribution Date (after giving effect
C-1
78
to all payments of principal made on the preceding Distribution Date), or on
the Closing Date in the case of the first Distribution Date or if no interest
has yet been paid, subject to certain limitations contained in the Indenture.
Interest on this Note will accrue for each Distribution Date from and including
the most recent Distribution Date on which interest has been paid to but
excluding such Distribution Date or, in the case of the first Distribution Date
or if no interest has yet been paid, from ___________ 1, 199 . The Issuer
shall pay interest on overdue installments of interest at the Class A-1
Interest Rate to the extent lawful. Interest will be computed on the basis of
a 360-day year and the actual number of days elapsed since the immediately
preceding Distribution Date. 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 Trustee whose name appears below by manual signature, this Note shall not
be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
C-2
79
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by an Authorized Officer, as set forth
below.
Date: 199 FLEETWOOD CREDIT RV RECEIVABLES
------------------, 199 - OWNER TRUST
By:
----------------------------,
as Owner Trustee
By:
-----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
----------------------------,
as Trustee
By:
--------------------------
Authorized Signatory
C-3
80
[REVERSE OF CLASS A-1 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its "_____% Asset Backed Notes, Class A-1" (the "Class A-1
Notes"), all issued under an Indenture, dated as of ____________ 1, 199 (the
"Indenture"), between the Issuer and _____________, a _________, as trustee
(the "Trustee"), 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 Trustee and the Noteholders. The
Notes are subject to all terms of the Indenture. All terms used in this Note
that are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture, as so supplemented
or amended.
The Class A-1 Notes, the Class A-2 Notes and the Class A-3 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 Class A-1 Notes will be paid on each
Distribution Date in the amount specified in the Indenture. As described
above, the entire unpaid principal amount of this Note will be payable on the
earlier of the Class A-1 Final Scheduled Distribution 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 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 Notes shall be made pro rata to the Class
A-1 Noteholders entitled thereto.
Payments of principal of and interest on this Note due and payable on
each Distribution Date or Redemption Date shall be made by check mailed to the
Person whose name appears as the registered holder hereof (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 Distribution Date or Redemption Date shall be binding upon
all future holders hereof 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
Distribution Date or Redemption Date, then the 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 Distribution Date or Redemption
Date by notice mailed within five days of such Distribution 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
Trustee or at the office of the Trustee's agent appointed for such purposes
located in The City of New York.
C-4
81
As provided in the Indenture, the Notes may be redeemed pursuant to
the Indenture, in whole, but not in part, at the option of the Seller, on any
Distribution Date as of which (i) the Aggregate Scheduled Balance is less than
or equal to 10% of the Cut-Off Date Aggregate Scheduled Balance and (ii) the
aggregate outstanding principal amount of the Securities is less than 5% of the
aggregate outstanding principal amount of the Securities as of the Closing
Date.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or
agency designated by the Issuer pursuant to the Indenture. 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 Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director or employee of the
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Trustee or of any
successor or assign of the Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture and such Note 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.
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 of the
Issuer secured by the Indenture 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.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and any agent of the Issuer or the 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
C-5
82
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Noteholders representing a majority of the
Outstanding Amount. The Indenture also contains provisions permitting
Noteholders representing specified percentages of the Outstanding Amount, on
behalf of all Noteholders, 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 Noteholder hereof (or
any one of more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future holders hereof 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 Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Noteholders issued
thereunder.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
The Notes may not be purchased with the assets of an employee benefit
plan (a "Benefit Plan") if the Seller, the Servicer, the Trustee, the Owner
Trustee or any of their Affiliates (i) has investment or administrative
discretion with respect to such Benefit Plan assets; (ii) has authority or
responsibility to give, or regularly gives, investment advice with respect to
such Benefit Plan assets, for a fee and pursuant to an agreement or
understanding that such advice (a) will serve as a primary basis for investment
decisions with respect to such Benefit Plan assets and (b) will be based on the
particular investment needs for such Benefit Plan; or (iii) is an employer
maintaining or contributing to such Benefit Plan.
This Note and the Indenture shall be construed in accordance with the
laws of the State of California, 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 Trustee under the Indenture shall be
governed by the laws of the State of New York.
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.
C-6
83
EXHIBIT D
FORM OF CLASS A-2 NOTE
THIS NOTE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-1 NOTES
TO THE EXTENT DESCRIBED IN THE INDENTURE REFERRED TO HEREIN.
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.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT
INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE 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.
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST
____% FLOATING RATE ASSET BACKED NOTE, CLASS A-2
REGISTERED $____________
No. R-__ CUSIP NO. ___________
The Fleetwood Credit RV Receivables 199 - Owner Trust, a business
trust organized and existing under the laws of the State of Delaware (the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of _______________ Dollars
($_____________), payable to the extent described in the Indenture referred to
on the reverse hereof on each Distribution Date; provided, however, that the
entire unpaid principal amount of this Note shall be payable on the earlier of
__________, ____ (the "Class A-2 Final Scheduled Distribution Date") and the
Redemption Date, if any, selected pursuant to the
D-1
84
Indenture. No payments of principal of the Class A-2 Notes shall be made until
the principal amount of the Class A-1 Notes has been reduced to zero.
The Issuer will pay interest on this Note at the rate per annum shown
above on each Distribution Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding on
the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date), or on the Closing Date in
the case of the first Distribution Date or if no interest has yet been paid,
subject to certain limitations contained in the Indenture. Interest on this
Note will accrue for each Distribution Date from and including the most recent
Distribution Date on which interest has been paid to but excluding such
Distribution Date or, in the case of the first Distribution Date or if no
interest has yet been paid, from ____________ 1, 199 . The Issuer shall pay
interest on overdue installments of interest at the Class A-2 Interest Rate to
the extent lawful. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. 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 Trustee whose name appears below by manual signature, this Note shall not
be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
D-2
85
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by an Authorized Officer, as set forth below.
Date: 199 FLEETWOOD CREDIT RV RECEIVABLES
---------------, 199 - OWNER TRUST
By:
--------------------------------,
as Owner Trustee
By:
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
---------------------------------
as Trustee,
By:
------------------------------
Authorized Signatory
D-3
86
[REVERSE OF CLASS A-2 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its "____% Floating Rate Asset Backed Notes, Class A-2" (the
"Class A-2 Notes"), all issued under an Indenture, dated as of ____________ 1,
199 (the "Indenture"), between the Issuer and _____________, a __________, as
trustee (the "Trustee"), 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 Trustee and the Noteholders. The
Notes are subject to all terms of the Indenture. All terms used in this Note
that are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture, as so supplemented
or amended.
The Class A-1 Notes, the Class A-2 Notes and the Class A-3 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 Class A-2 Notes will be paid on each
Distribution Date in the amount specified in the Indenture. As described
above, the entire unpaid principal amount of this Note will be payable on the
earlier of the Class A-2 Final Scheduled Distribution 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-2 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-2 Notes shall be made pro rata to the Class
A-2 Noteholders entitled thereto.
Payments of principal of and interest on this Note due and payable on
each Distribution Date or Redemption Date shall be made by check mailed to the
Person whose name appears as the registered holder hereof (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 Distribution Date or Redemption Date shall be binding upon
all future holders hereof 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
Distribution Date or Redemption Date, then the 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 Distribution Date or Redemption
Date by notice mailed within five days of such Distribution 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
Trustee or at the office of the Trustee's agent appointed for such purposes
located in The City of New York.
D-4
87
As provided in the Indenture, the Notes may be redeemed pursuant to
the Indenture, in whole, but not in part, at the option of the Seller, on any
Distribution Date as of which (i) the Aggregate Scheduled Balance is less than
or equal to 10% of the Cut-Off Date Aggregate Scheduled Balance and (ii) the
aggregate outstanding principal amount of the Securities is less than 5% of the
aggregate outstanding principal amount of the Securities as of the Closing
Date.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or
agency designated by the Issuer pursuant to the Indenture. 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 Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director or employee of the
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Trustee or of any
successor or assign of the Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture and such Note 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.
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 of the
Issuer secured by the Indenture 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.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and any agent of the Issuer or the 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
D-5
88
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of Noteholders representing a majority of the
Outstanding Amount. The Indenture also contains provisions permitting
Noteholders representing specified percentages of the Outstanding Amount, on
behalf of all Noteholders, 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 Noteholder hereof (or
any one of more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future holders hereof 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 Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Noteholders issued
thereunder.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
The Notes may not be purchased with the assets of an employee benefit
plan (a "Benefit Plan") if the Seller, the Servicer, the Trustee, the Owner
Trustee or any of their Affiliates (i) has investment or administrative
discretion with respect to such Benefit Plan assets; (ii) has authority or
responsibility to give, or regularly gives, investment advice with respect to
such Benefit Plan assets, for a fee and pursuant to an agreement or
understanding that such advice (a) will serve as a primary basis for investment
decisions with respect to such Benefit Plan assets and (b) will be based on the
particular investment needs for such Benefit Plan; or (iii) is an employer
maintaining or contributing to such Benefit Plan.
This Note and the Indenture shall be construed in accordance with the
laws of the State of California, 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 Trustee under the Indenture shall be
governed by the laws of the State of New York.
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.
D-6
89
EXHIBIT E
FORM OF CLASS A-3 NOTE
THIS NOTE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A-1 NOTES
AND THE CLASS A-2 NOTES AS DESCRIBED IN THE INDENTURE REFERRED TO HEREIN.
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.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT
INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN FULL ON THE DATE 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.
FLEETWOOD CREDIT RV RECEIVABLES 199 - OWNER TRUST
_____% ASSET BACKED NOTE, CLASS A-3
REGISTERED $____________
No. R-__ CUSIP NO. __________
The Fleetwood Credit RV Receivables 199 - Owner Trust, a business
trust organized and existing under the laws of the State of Delaware (the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of ____________ Dollars ($____________),
payable to the extent described in the Indenture referred to on the reverse
hereof on each Distribution Date; provided, however, that the entire unpaid
principal amount of this Note shall be payable on the earlier of _________,
____ (the "Class A-3 Final Scheduled Distribution Date") and the Redemption
Date, if any, selected pursuant to the Indenture. No
E-1
90
payments of principal of the Class A-3 Notes shall be made until the principal
amount of the Class A-1 Notes and the Class A-2 Notes has been reduced to zero.
The Issuer will pay interest on this Note at the rate per annum shown
above on each Distribution Date until the principal of this Note is paid or
made available for payment, on the principal amount of this Note outstanding on
the preceding Distribution Date (after giving effect to all payments of
principal made on the preceding Distribution Date), or on the Closing Date in
the case of the first Distribution Date or if no interest has yet been paid,
subject to certain limitations contained in the Indenture. Interest on this
Note will accrue for each Distribution Date from and including the most recent
Distribution Date on which interest has been paid to but excluding such
Distribution Date or, in the case of the first Distribution Date or if no
interest has yet been paid, from ____________ 1, 199 . The Issuer shall pay
interest on overdue installments of interest at the Class A-3 Interest Rate to
the extent lawful. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. 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 Trustee whose name appears below by manual signature, this Note shall not
be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
E-2
91
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or in facsimile, by an Authorized Officer, as set forth below.
Date: 199 FLEETWOOD CREDIT RV RECEIVABLES
--------------, 199 - OWNER TRUST
By:
----------------------------
as Owner Trustee
By:
----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
--------------------------------,
as Trustee
By:
-------------------------------
Authorized Signatory
E-3
92
[REVERSE OF CLASS A-3 NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its "_____% Asset Backed Notes, Class A-3" (the "Class A-3
Notes"), all issued under an Indenture, dated as of ____________ 1, 199 (the
"Indenture"), between the Issuer and ____________, a __________, as trustee
(the "Trustee"), 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 Trustee and the Noteholders. The
Notes are subject to all terms of the Indenture. All terms used in this Note
that are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture, as so supplemented
or amended.
The Class A-1 Notes, the Class A-2 Notes and the Class A-3 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 Class A-3 Notes will be paid on each
Distribution Date in the amount specified in the Indenture. As described
above, the entire unpaid principal amount of this Note will be payable on the
earlier of the Class A-3 Final Scheduled Distribution 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-3 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-3 Notes shall be made pro rata to the Class
A-3 Noteholders entitled thereto.
Payments of principal and interest on this Note due and payable on
each Distribution Date or Redemption Date shall be made by check mailed to the
Person whose name appears as the registered holder hereof (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 Distribution Date or Redemption Date shall be binding upon
all future holders hereof 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
Distribution Date or Redemption Date, then the 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 Distribution Date or Redemption
Date by notice mailed within five days of such Distribution 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
Trustee or at the office of the Trustee's agent appointed for such purposes
located in The City of New York.
E-4
93
As provided in the Indenture, the Notes may be redeemed pursuant to
the Indenture, in whole, but not in part, at the option of the Seller, on any
Distribution Date as of which (i) the Aggregate Scheduled Balance is less than
or equal to 10% of the Cut-Off Date Aggregate Scheduled Balance and (ii) the
aggregate outstanding principal amount of the Securities is less than 5% of the
aggregate outstanding principal amount of the Securities as of the Closing
Date.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or
agency designated by the Issuer pursuant to the Indenture. 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 Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Trustee or the Owner Trustee in its individual
capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director or employee of the
Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Trustee or of any
successor or assign of the Trustee or the Owner Trustee in its individual
capacity, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture and such Note 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 Proceeding 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.
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 of the
Issuer secured by the Indenture 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.
Prior to the due presentment for registration of transfer of this
Note, the Issuer, the Trustee and any agent of the Issuer or the 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
E-5
94
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of Noteholders representing a majority of the
Outstanding Amount. The Indenture also contains provisions permitting
Noteholders representing specified percentages of the Outstanding Amount, on
behalf of all Noteholders, 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 Noteholder hereof (or
any one of more Predecessor Notes) shall be conclusive and binding upon such
Noteholder and upon all future holders hereof 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 Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Noteholders issued
thereunder.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
The Notes may not be purchased with the assets of an employee benefit
plan (a "Benefit Plan") if the Seller, the Servicer, the Trustee, the Owner
Trustee or any of their Affiliates (i) has investment or administrative
discretion with respect to such Benefit Plan assets; (ii) has authority or
responsibility to give, or regularly gives, investment advice with respect to
such Benefit Plan assets, for a fee and pursuant to an agreement or
understanding that such advice (a) will serve as a primary basis for investment
decisions with respect to such Benefit Plan assets and (b) will be based on the
particular investment needs for such Benefit Plan; or (iii) is an employer
maintaining or contributing to such Benefit Plan.
This Note and the Indenture shall be construed in accordance with the
laws of the State of California, 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 Trustee under the Indenture shall be
governed by the laws of the State of New York.
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.
E-6
95
EXHIBIT G
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
- --------------------------------------------------------------------------------
the within Note, and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
to transfer said Note on the books kept for registration thereof, with full
power of substitution in the premises.
Dated:
-----------------------
Signature Guaranteed By:
- --------------------------------------------------- ---------------------------------------------------
Signature must be guaranteed by an eligible Notice: The signature(s) on this assignment must
guarantor institution that is a participant in the correspond with the name(s) as it appears on the
Securities Transfer Agent's Medallion Program face of the within Note in every particular,
(STAMP) or similar signature guarantee program. without alteration, enlargement, or any change
whatsoever.
- ---------------------------------------------------
(Authorized Officer)
G-1