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EXHIBIT 4.2
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[TRUST]
Issuer
and
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Trustee
INDENTURE
Dated __________, 199_
Relating to
Asset Backed Notes
Series 199_-__
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TABLE OF CONTENTS
Page
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PRELIMINARY STATEMENT.............................................................................................1
GRANTING CLAUSES..................................................................................................1
ARTICLE I
DEFINITIONS
SECTION 1.01. General Definitions...............................................................................1
ARTICLE II
THE NOTES
SECTION 2.01. Forms Generally...................................................................................1
SECTION 2.02. Forms of Notes and Certificate of Authentication..................................................1
SECTION 2.03. Notes; General Provisions with Respect to Principal and Interest Payments.........................1
SECTION 2.04. Denominations.....................................................................................2
SECTION 2.05. Execution, Authentication, Delivery and Dating....................................................2
SECTION 2.06. Temporary Notes...................................................................................3
SECTION 2.07. Registration, Registration of Transfer and Exchange...............................................3
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Notes........................................................5
SECTION 2.09. Payments of Principal and Interest................................................................6
SECTION 2.10. Persons Deemed Owners.............................................................................8
SECTION 2.11. Cancellation......................................................................................8
SECTION 2.12. Authentication and Delivery of Notes..............................................................8
ARTICLE III
COVENANTS; REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Payment of Notes..................................................................................1
SECTION 3.02. Maintenance of Office or Agency...................................................................1
SECTION 3.03. Money for Note Payments to Be Held in Trust.......................................................1
SECTION 3.04. Existence of Issuer...............................................................................3
SECTION 3.05. Protection of Trust Fund..........................................................................3
SECTION 3.06. Opinions as to Trust Fund.........................................................................4
SECTION 3.07. Performance of Obligations; Servicing Agreement...................................................5
SECTION 3.08. Negative Covenants................................................................................6
SECTION 3.09. Annual Statement as to Compliance.................................................................7
SECTION 3.10. Recording of Assignments..........................................................................7
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SECTION 3.11. Representations and Warranties Concerning the Accounts............................................7
SECTION 3.12. Trustee's Review of Account Documents............................................................10
SECTION 3.13. Trust Fund; Account Documents....................................................................12
SECTION 3.14. Amendments to Servicing Agreement................................................................13
SECTION 3.15. Servicer as Agent and Bailee of Trustee..........................................................13
SECTION 3.16. Investment Company Act...........................................................................14
SECTION 3.17. Business Activity................................................................................14
SECTION 3.18. Liability of Owner Trustee.......................................................................15
SECTION 3.19. Exculpation of the Trustee.......................................................................15
SECTION 3.20. Owner Trustee Agrees Not to File for Bankruptcy of the Issuer....................................15
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture...........................................................1
SECTION 4.02. Application of Trust Money........................................................................2
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01. Event of Default..................................................................................1
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment................................................2
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee...................................3
SECTION 5.04. Remedies..........................................................................................5
SECTION 5.05. Preservation of Trust Fund........................................................................5
SECTION 5.06. Trustee May File Proofs of Claim..................................................................6
SECTION 5.07. Trustee May Enforce Claims Without Possession of Notes............................................7
SECTION 5.08. Application of Money Collected....................................................................8
SECTION 5.09. Limitation on Suits..............................................................................10
SECTION 5.10. Unconditional Rights of Noteholders to Receive Principal and Interest............................11
SECTION 5.11. Restoration of Rights and Remedies...............................................................11
SECTION 5.12. Rights and Remedies Cumulative...................................................................11
SECTION 5.13. Delay or Omission Not Waiver.....................................................................12
SECTION 5.14. Control by the Noteholders.......................................................................12
SECTION 5.15. Waiver of Past Defaults..........................................................................13
SECTION 5.16. Undertaking for Costs............................................................................13
SECTION 5.17. Waiver of Stay or Extension Laws.................................................................13
SECTION 5.18. Sale of Trust Fund...............................................................................14
SECTION 5.19. Action on Notes..................................................................................16
SECTION 5.20. Allocation of Realized Loss Amount...............................................................16
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ARTICLE VI
THE TRUSTEE
SECTION 6.01. Duties of Trustee.................................................................................1
SECTION 6.02. Notice of Default.................................................................................2
SECTION 6.03. Rights of Trustee.................................................................................3
SECTION 6.04. Not Responsible for Recitals or Issuance of Notes.................................................3
SECTION 6.05. May Hold Notes....................................................................................3
SECTION 6.06. Money Held in Trust...............................................................................3
SECTION 6.07. Compensation and Reimbursement....................................................................4
SECTION 6.08. Eligibility; Disqualification.....................................................................5
SECTION 6.09. Trustee's Capital and Surplus.....................................................................5
SECTION 6.10. Resignation and Removal; Appointment of Successor.................................................5
SECTION 6.11. Acceptance of Appointment by Successor............................................................6
SECTION 6.12. Merger; Conversion, Consolidation or Succession to Business of Trustee............................7
SECTION 6.13. Preferential Collection of Claims Against Issuer..................................................7
SECTION 6.14. Co-trustees and Separate Trustees.................................................................7
SECTION 6.15. Authenticating Agents.............................................................................9
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01. Issuer to Furnish Trustee Names and Addresses of Noteholders......................................1
SECTION 7.02. Preservation of Information; Communications to Noteholders........................................1
SECTION 7.03. Reports by Trustee................................................................................1
SECTION 7.04. Reports by Issuer.................................................................................2
ARTICLE VIII
ACCOUNTS, PAYMENTS OF INTEREST AND PRINCIPAL, AND RELEASES
SECTION 8.01. Collection of Moneys..............................................................................1
SECTION 8.02. Collection Account................................................................................1
SECTION 8.03. Class A-4 Reserve Account.........................................................................5
SECTION 8.04. General Provisions Regarding the Collection Account...............................................6
SECTION 8.05. Reports by Trustee to Noteholders.................................................................8
SECTION 8.06. Reports by Trustee................................................................................8
SECTION 8.07. Reports by Independent Accountants................................................................8
SECTION 8.08. Reports by the Servicer...........................................................................9
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Noteholders............................................1
SECTION 9.02. Supplemental Indentures with Consent of Noteholders...............................................1
SECTION 9.03. Execution of Supplemental Indentures..............................................................3
SECTION 9.04. Effect of Supplemental Indentures.................................................................3
SECTION 9.05. Conformity with Trust Indenture Act...............................................................3
SECTION 9.06. Reference in Notes to Supplemental Indentures.....................................................3
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.01. Optional Redemption of Notes.....................................................................1
SECTION 10.02. Form of Redemption Notice........................................................................1
SECTION 10.03. Notes Payable on Redemption Date.................................................................2
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Compliance Certificates and Opinions.............................................................1
SECTION 11.02. Form of Documents Delivered to Trustee...........................................................1
SECTION 11.03. Acts of Noteholders..............................................................................2
SECTION 11.04. Notices, etc., to Trustee and Issuer.............................................................3
SECTION 11.05. Notices and Reports to Noteholders; Waiver of Notices............................................4
SECTION 11.06. Rules by Trustee and Agents......................................................................4
SECTION 11.07. Conflict with Trust Indenture Act................................................................4
SECTION 11.08. Effect of Headings and Table of Contents.........................................................4
SECTION 11.09. Successors and Assigns...........................................................................5
SECTION 11.10. Separability.....................................................................................5
SECTION 11.11. Benefits of Indenture............................................................................5
SECTION 11.12. Legal Holidays...................................................................................5
SECTION 11.13. Governing Law....................................................................................5
SECTION 11.14. Counterparts.....................................................................................5
SECTION 11.15. Recording of Indenture...........................................................................5
SECTION 11.16. Issuer Obligations...............................................................................6
SECTION 11.17. Inspection.......................................................................................6
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INDENTURE, dated ________, 199_ (herein, as amended or
supplemented from time to time as permitted hereby, called this "Indenture"),
between [Trust] (the "Issuer"), a ________________ trust and
_____________________, as trustee (herein, together with its permitted
successors in the trusts hereunder, called the "Trustee"").
PRELIMINARY STATEMENT
The Issuer is a business trust created by a Trust Agreement
dated ________ 1, 199_ between ___________________ (in its capacity as Trustee
thereunder, the "Owner Trustee"), and NationsBanc Asset Securities, Inc., as
Grantor. The Issuer will act at all times through the Owner Trustee. The Issuer
has duly authorized the execution and delivery of this Indenture to provide for
the issuance of its ____% Asset Backed Notes, Class A-1 (the "Class A-1 Notes"),
_____% Asset Backed Notes, Class A-2 (the "Class A-2 Notes"), _____%, Asset
Backed Notes, Class A-3 (the "Class A-3 Notes") and _____% Asset Backed Notes,
Class A-4 (the "Class A-4 Notes", and together with the Class A-1 Notes, Class
A-2 Notes and Class A-3 Notes, the "Notes") issuable as provided in this
Indenture. All covenants and agreements made by the Issuer herein are for the
benefit and security of the Holders of the Notes and for the benefit and
security of the Trustee in its individual capacity, to the extent of its
interest. The Issuer is entering into this Indenture, and the Trustee is
accepting the trusts created hereby, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
All things necessary to make this Indenture a valid agreement
of the Issuer in accordance with its terms have been done.
GRANTING CLAUSES
The Issuer hereby Grants to the Trustee, for the exclusive
benefit of the Holders of the Notes, all of the Issuer's right, title and
interest in and to (a) the Accounts listed in the Schedule of Accounts delivered
to the Trustee pursuant to this Indenture and property acquired in respect
thereof, including the related Account Documents and all Monthly Payments that
have not been received prior to the Cut-Off Date hereof regardless of the Due
Date for such Monthly Payment, (b) the Servicing Agreement, (c) the Purchase and
Sale Agreement, (d) all cash, instruments or other property held or required to
be deposited in the Collection Account and the Holding Account, including all
investments made with funds in the Collection Account and the Holding Account
and all income from investments made with funds in the Collection Account and
the Holding Account, (e) all new Accounts originated in connection with the sale
of property acquired in respect of Accounts and (f) all proceeds in any way
derived from any of the foregoing, including all proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or other assets,
including, without limitation, all insurance proceeds and condemnation awards.
Additionally, the Issuer hereby Grants to Trustee, for the exclusive benefit of
the Holders of the Class A-4 Notes, all of the Issuer's right, title and
interest in and to all cash, instruments or other property held or required to
be deposited in the Class A-4 Reserve Account, including all investments made
with funds in the Class A-4 Reserve Account and all income from investments made
with funds in the Class A-4 Reserve
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Account and all proceeds in any way derived from any of the foregoing. Such
Grants are made, however, in trust to secure the Notes equally and ratably
without priority or discrimination, except as provided in this Indenture,
between any Note and any other Note by reason of difference in time of issuance
or otherwise, and to secure (i) the payment of all amounts due on the Notes in
accordance with their terms, (ii) the payment of all other sums payable under
this Indenture and (iii) compliance with the provisions of this Indenture, all
as provided in this Indenture. (All terms used in the foregoing Granting Clauses
that are defined in Section 1.01 are used with the meanings given in said
Section.)
The Trustee acknowledges such Grant, accepts the trusts
hereunder in accordance with the provisions of this Indenture and agrees to
perform the duties herein required to the end that the interests of the Holders
of the Notes may be adequately and effectively protected.
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ARTICLE I
DEFINITIONS
SECTION 1.01. General Definitions.
Except as otherwise specified or as the context may otherwise
require, the following terms have the respective meanings set forth below for
all purposes of this Indenture, and the definitions of such terms are applicable
to the singular as well as to the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such terms. The term
"including" shall mean "including without limitation". All other terms used
herein that are defined in the Trust Indenture Act (as hereinafter defined),
either directly or by reference herein, have the meanings assigned to them
therein.
"Account": (i) an installment sale contract together with the
related Account Note and Mortgage and (ii) any new Account with a related
Account Note and Mortgage entered into in connection with the liquidation of the
items specified in (i) and the sale of property acquired in respect thereof. The
term "Outstanding Accounts" as of any date means the Accounts other than those
which, as of or prior to such date as indicated in any report of the Servicer
delivered to the Trustee pursuant to Section 3.01 of the Servicing Agreement,
have been the subject of a Full Prepayment or as to which the Servicer has
determined that no further amounts can be recovered.
"Account Documents": With respect to each Account (i) the
installment sale contract relating to such Account, (ii) the Account Note,
endorsed to the order of the Issuer, without recourse, and endorsed by the
Issuer in blank or to the order of the Trustee, without recourse, (iii) the
original of the recorded Mortgage and the originals of all other documents, if
any, securing said Account Note, (iv) unrecorded Assignments in recordable form
to the Trustee, together with originals or certified copies (to the extent
provided below) of any recorded assignments) from the originator of such Account
to the Grantor and from the Grantor to the Issuer, (v) the originals of any
assumption agreement, written assurance or substitution agreement required to be
delivered to the Trustee pursuant to Section 2.10 of the Servicing Agreement,
(vi) all insurance policies, including without limitation fire and extended
hazard insurance policies, related to the Accounts, naming the Servicer as the
loss payee of such policies, and (vii) any and all other documents or
instruments in the possession of the Grantor relating to the Accounts, which
evidence, or were created in connection with the origination of, or necessary
for the administration of the Accounts, including without limitation any credit
reports, copies of deeds, completion certificates, title search reports and loan
applications; if the original copy of any document described in clause (iii),
(iv) or (v) has been retained by the recording office in which such document was
recorded, then a copy thereof certified as true and correct by a duly authorized
representative of such recording office shall be included as part of the Account
Documents for the related Account. Notwithstanding any provision contained
herein, the Trustee shall have no duty to review, maintain custody of or take
any action with respect to the documents set forth in clauses (vi) and (vii)
above.
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"Account Note": The original installment sale contract or
other evidence of indebtedness executed by an obligor that evidences the
indebtedness of such Obligor under an Account.
"Account Number": With respect to any Account, the number
assigned to such Account by the Issuer.
"Accountant": A Person engaged in the practice of accounting
who (except when this Indenture provides that an Accountant must be Independent)
may be employed by or affiliated with the Issuer or an Affiliate of the Issuer.
"Accrual Date": The date upon which interest begins accruing
on the Notes, which date is ______ 1, 199_.
"Act": With respect to any Noteholder, as defined in Section
11.03.
"Affiliate": With respect to any Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": Any Note Registrar, Paying Agent or Authenticating
Agent.
"Aggregate Economic Balance": With respect to the Accounts,
the aggregate of the Economic Balances of all such Accounts at the time of
determination.
"Aggregate Outstanding Principal Balance": As of any
Distribution Date, an amount equal to the sum of the Outstanding Principal
Balances as of such Distribution Date.
"Asset Seller": _____________________, or its successor.
"Assignments": Collectively, (i) the original instrument of
assignment of such Mortgage, Account Note and other documents made by the
Grantor to the Issuer and (ii) the original instrument of assignment of such
Mortgage, Account Note and other documents made by the Issuer to the Trustee
(which in either case may to the extent permitted by the laws of the state in
which the related Mortgaged Property is located be a blanket instrument of
assignment covering other mortgages and Account Notes as well and which may
also, to the extent permitted by the laws of the state in which the related
Mortgaged Property is located, be an instrument of assignment running directly
from the mortgagee of record under the related Mortgage to the Trustee).
"Authenticating Agent": The Person, if any, appointed as
Authenticating Agent by the Trustee at the request of the Issuer pursuant to
Section 6.15, until any successor
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Authenticating Agent is named, and thereafter "Authenticating Agent" shall mean
such successor.
"Authorized Officer": In the case of the owner Trustee, the
President, any Vice-President, Financial Services Officer or Trust Officer or
any other officer of the Owner Trustee who is authorized to act for the Owner
Trustee in respect of the Issuer.
"Available Funds": With respect to any Distribution Date, the
sum of (i) the amount of collections on the Accounts on deposit in the
Collection Account at the close of business on the last Business Day of the
related Due Period, plus (ii) net reinvestment income earned on funds in the
Collection Account from the date ___ Business Days prior to the preceding
Distribution Date to the date ___ Business Days prior to such Distribution Date
plus (iii) net reinvestment income on funds in the Holding Account from the
preceding Distribution Date through the day immediately preceding the
Distribution Date. Available Funds will be net of any Issuer Expenses.
"Available Funds Allocation": The allocation of Available
Funds pursuant to Section 8.02(c) hereof.
"Bank": _________________________, a _________________
corporation, in its individual capacity and not as Owner Trustee pursuant to the
Trust Agreement, or any successor in its individual capacity.
"Business Day": Any day that is not a Saturday, Sunday or
other day on which commercial banking institutions in the City of New York or in
the city in which the Corporate Trust Office is located are authorized or
obligated by law or executive order to be closed.
"Class" Any one of the classes of Notes issued pursuant to
this Indenture.
"Class A-1 Initial Principal Balance": $
"Class A-1 Optimal Principal Amount": On any Distribution
Date, an amount equal to the product of (i) the Optimal Principal Amount for
such Distribution Date and (ii) a fraction, the numerator of which is the Class
A-1 Outstanding Principal Balance for such Distribution Date and the denominator
of which is the Aggregate Outstanding Principal Balance for such Distribution
Date; such amount not to exceed the Class A-1 Outstanding Principal Balance.
"Class A-1 Outstanding Principal Balance": As of any
Distribution Date, the Class A-1 Initial Principal Balance reduced by (i) all
payments, if any, made on the Class A-1 Notes in reduction of principal balance
made on all prior Distribution Dates and (ii) all Class A-1 Realized Loss
Amounts with respect to prior Distribution Dates.
"Class A-1 Realized Loss Amount": With respect to any
Distribution Date, an amount equal to the excess of (i) the Class A-1
Outstanding Principal Balance as of such Distribution Date (after application of
the Class A-1 Optimal Principal Amount, but prior to
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the application of losses on such Distribution Date) over (ii) the Aggregate
Economic Balance of the Accounts immediately following the Due Period related to
such Distribution Date, not to exceed the Class A-1 Outstanding Principal
Balance.
"Class A-2 Initial Principal Balance": $
"Class A-2 Optimal Principal Amount": On any Distribution
Date, an amount equal to the product of (i) the Optimal Principal Amount for
such Distribution Date and (ii) a fraction, the numerator of which is the Class
A-2 Outstanding Principal Balance for such Distribution Date and the denominator
of which is the Aggregate Outstanding Principal Balance for such Distribution
Date; such amount not to exceed the Class A-2 Outstanding Principal Balance.
"Class A-2 Outstanding Principal Balance": As of any
Distribution Date, the Class A-2 Initial Principal Balance reduced by (i) all
payments, if any, made on the Class A-2 Notes in reduction of principal balance
made on all prior Distribution Dates and (ii) all Class A-2 Realized Loss
Amounts with respect to prior Distribution Dates.
"Class A-2 Realized Loss Amount": With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (a) the Class
A-1 Outstanding Principal Balance as of such Distribution Date (after
application of the Class A-1 Optimal Principal Amount, but prior to the
application of losses on such Distribution Date) and (b) the Class A-2
Outstanding Principal Balance as of such Distribution Date (after application of
the Class A-2 Optimal Principal Amount, but prior to the application of losses
on such Distribution Date) over (ii) the Aggregate Economic Balance of the
Accounts immediately following the Due Period related to such Distribution Date,
not to exceed the Class A-2 Outstanding Principal Balance.
"Class A-3 Initial Principal Balance": $
"Class A-3 Optimal Principal Amount": On any Distribution
Date, an amount equal to the product of (i) the Optimal Principal Amount for
such Distribution Date and (ii) a fraction, the numerator of which is the Class
A-3 Outstanding Principal Balance for such Distribution Date and the denominator
of which is the Aggregate Outstanding Principal Balance for such Distribution
Date; such amount not to exceed the Class A-3 Outstanding Principal Balance.
"Class A-3 Outstanding Principal Balance": As of any
Distribution Date, the Class A-3 Initial Principal Balance reduced by (i) all
payments, if any, made on the Class A-3 Notes in reduction of principal balance
made on all prior Distribution Dates and (ii) all Class A-3 Realized Loss
Amounts with respect to prior Distribution Dates.
"Class A-3 Realized Loss Amount": With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (a) the Class
A-1 Outstanding Principal Balance as of such Distribution Date (after
application of the Class A-1 Optimal Principal Amount, but prior to the
application of losses on such Distribution Date), (b) the Class A-2 Outstanding
Principal Balance as of such Distribution Date (after application of the Class
A-2 Optimal
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Principal Amount, but prior to the application of losses on such Distribution
Date) and (c) the Class A-3 Outstanding Principal Balance as of such
Distribution Date (after application of the Class A-3 Optimal Principal Amount,
but prior to the application of losses on such Distribution Date) over (ii) the
Aggregate Economic Balance of the Accounts immediately following the Due Period
related to such Distribution Date, not to exceed the Class A-3 Outstanding
Principal Balance.
"Class A-4 Initial Principal Balance: $
"Class A-4 Maximum Reserve Amount": On any Distribution Date,
an amount equal to the greater of (i) one year of interest at the applicable
Note Interest Rate on the Class A-4 Outstanding Principal Balance following
payments on the Notes and allocations of losses on such Distribution Date and
(ii) one half of the Class A-4 Reserve Initial Deposit.
"Class A-4 Optimal Principal Amount": On any Distribution
Date, an amount equal to the product of (i) the Optimal Principal Amount for
such Distribution Date and (ii) a fraction, the numerator of which is the Class
A-4 Outstanding Principal Balance for such Distribution Date and the denominator
of which is the Aggregate Outstanding Principal Balance for such Distribution
Date; such amount not to exceed the Class A-4 Outstanding Principal Balance.
"Class A-4 Outstanding Principal Balance": As of any
Distribution Date, the Class A-4 Initial Principal Balance reduced by (i) all
payments, if any, made on the Class A-4 Notes in reduction of principal balance
made on all prior Distribution Dates and (ii) all Class A-4 Realized Loss
Amounts with respect to prior Distribution Dates.
"Class A-4 Realized Loss Amount": With respect to any
Distribution Date, an amount equal to the excess of (i) the sum of (a) the Class
A-1 Outstanding Principal Balance as of such Distribution Date (after
application of the Class A-1 Optimal Principal Amount, but prior to the
application of losses on such Distribution Date), (b) the Class A-2 Outstanding
Principal Balance as of such Distribution Date (after application of the Class
A-2 Optimal Principal Amount, but prior to the application of losses on such
Distribution Date), (c) the Class A-3 Outstanding Principal Balance as of such
Distribution Date (after application of the Class A-3 Optimal Principal Amount,
but prior to the application of losses on such Distribution Date) and (d) the
Class A-4 Outstanding Principal Balance as of such Distribution Date (after
application of the Class A-4 Optimal Principal Amount, but prior to the
application of losses on such Distribution Date) over (ii) the Aggregate
Economic Balance of the Accounts immediately following the Due Period related to
such Distribution Date, not to exceed the Class A-4 Outstanding Principal
Balance.
"Class A-4 Reserve Account": The trust account created and
maintained pursuant to Section 8.03.
"Class A-4 Reserve Initial Deposit": $
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"Class A-4 Reserve Withdrawal Amount": Any amount withdrawn
from the Class A-4 Reserve Account in accordance with Section 8.03.
"Class Interest Shortfall": With respect to a Class of Notes
on any Distribution Date, an amount equal to the excess, if any, of the Interest
Accrual Amount for such Class of Notes over Available Funds (less any interest
paid on such Distribution Date on each Class of Notes senior to such Class of
Notes); provided, however, that such amount shall not include interest due and
payable with respect to unreimbursed Realized Loss Amounts.
"Class Optimal Principal Amount": Any of the Class A-1 Optimal
Principal Amount, the Class A-2 Optimal Principal Amount, the Class A-3 Optimal
Principal Amount and the Class A-4 Optimal Principal Amount, as applicable.
"Closing Date": The date on which the Notes are first
executed, authenticated and delivered pursuant to Section 2.12.
"Collection Account": The trust account or accounts created
and maintained pursuant to Section 8.02.
"Commission": The Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time such Commission is not existing and performing the
duties now assigned under the Trust Indenture Act, then the body performing such
duties at such time under the Trust Indenture Act or similar legislation
replacing the Trust Indenture Act.
"Contract Sale Agreement": The Contract Sale Agreement, dated
______, 199_, between the Asset Seller and the Grantor, which provides for,
among other things, the purchase by the Grantor of all interest of the Asset
Seller in the Accounts.
"Corporate Trust Office": The designated corporate trust
office of the Trustee located at ______________________________________ or at
such other address as the Trustee may designate from time to time by notice to
the Noteholders and the Issuer, or the principal corporate trust office of any
successor Trustee.
"Cumulative Actual Net Economic Losses": With respect to any
Distribution Date, the cumulative excess as of the end of the related Due Period
of (A) the Economic Balance of all Accounts that have been repossessed or that
have been charged off, written off or otherwise reduced, in whole or in part,
without any repossession over (3) the Net Liquidation Proceeds, if any, of such
Accounts, any new Account that is part of such Net Liquidation Proceeds being
valued for this purpose at its Economic Balance, and the remaining Outstanding
Economic Balance of any Account that has been charged off, written-off or
reduced for any reason, in part but not in whole.
"Cut-Off Date": ____________, 199_.
["DCR": Duff & ▇▇▇▇▇▇ Credit Rating Co., or its successor in
interest.]
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"Debt Service Requirement Determination Date": The date prior
to each Distribution Date as of which the Trustee is required to compute the
amount due and payable on the Notes on such Distribution Date; such date is the
fifth Business Day prior to a Distribution Date.
"Default": Any occurrence which is, or with notice or the
lapse of time or both would become, an Event of Default.
"Defective Account": The meaning specified in Section 3.11(b)
and Section 3.12(b).
"Deleted Account": The meaning specified in Section 3.11 (b)
and Section 3.12(b).
"Delinquency Ratio": The ratio (expressed as a percentage),
computed for any Distribution Date of (i) the average Aggregate Economic Balance
of Accounts for the related Due Period for which the Monthly Payment thereon
remains unpaid for 60 days or more after the Due Date thereof to (ii) the
average Aggregate Economic Balance for such Due Period.
"Distribution Date": Any date which is an Interest
Distribution Date or Principal Distribution Date for the Notes.
"Distribution Date Statement": As defined in Section 2.09(d).
"Due Date": With respect to any Account, the date each month
on which the Monthly Payment is payable.
"Due Period": With respect to a Distribution Date, the
three-month period beginning immediately following the end of the preceding Due
Period (or, in the case of the Due Period which is applicable to the first
Distribution Date, beginning on the day after the Cut-off Date) and ending at
the close of business on the last Business Day in the second month prior to the
month in which such Distribution Date occurs.
"Economic Balance": With respect to any Account, the present
value of all remaining Monthly Payments from the date of determination
discounted monthly at a rate equal to the Effective Financing Rate; provided,
however, that Accounts with any of the following characteristics on the Cut-Off
Date shall be deemed to have an Economic Balance of zero:
(i) the sum of all Monthly Payments and all other amounts
due under such Account is $ or less.
(ii) an Economic Balance determined in the manner provided
above of zero or less than zero.
(iii) an Effective Financing Rate of below % per annum or
above % per annum.
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15
(iv) a total number of Monthly Payments greater than 360.
(v) secured by Mortgaged Properties that are not located
in _____________.
"Effective Financing Rate": A discount rate which, when
applied in a present value calculation with respect to any Account using monthly
compounding, results in the present value of all originally scheduled Monthly
Payments on such Account being equal to the amount financed stated on the
related installment sale contract or other applicable instrument prior to any
Monthly Payments having been made on such Account.
"Eligible Account": (a) A segregated account or accounts
maintained with a depository institution or trust company whose long-term
unsecured debt obligations are rated at least "___" by [S&P] [Fitch] [DCR]
[Moody's] at the time of any deposit therein or whose short-term unsecured debt
obligations are rated at least by [S&P] [Fitch] [DCR] or (b) a segregated trust
account or accounts maintained with a federal or state chartered depository
institution subject to regulations regarding fiduciary funds on deposit
substantially similar to 12 C.F.R. Section 9.10(b).
"Eligible Investments": Any one or more of the following
obligations or securities:
(a)(i) direct obligations of, and obligations fully guaranteed
as to timely payment by, the United States of America or any agency or
instrumentality of the United States of America, the obligations of
which are backed by the full faith and credit of the United States of
America and (ii) direct obligations of, and obligations guaranteed as
to timely payment by, Federal National Mortgage Association or Federal
Home Loan Mortgage Corporation only if, at the time of investment, they
are assigned the Highest Credit Rating by the Rating Agencies;
(b) demand and time deposits in, certificates of deposit of,
or banker's acceptances issued by any depository institution or trust
company incorporated under the laws of the United States of America
(including the Trustee or any agent of the Trustee acting in their
respective commercial capacities) or any State and subject to
supervision and examination by federal and/or State banking
authorities; provided that (1) the commercial paper and/or the debt
obligations of such depository institution (or, in the case of the
principal depository institution in a holding company system, the
commercial paper or debt obligations of such holding company) at the
time of such investment or contractual commitment providing for such
investment is assigned the Highest Credit Rating by the Rating Agencies
or (2) the long-term debt securities of such depository institutions
are rated "___" or better by the Rating Agencies;
(c) repurchase obligations pursuant to a written agreement
with respect to (i) any security described in clause (a) above or (ii)
any other security issued or guaranteed by an agency or instrumentality
of the United States of America, in either case entered into with an
entity whose debt obligations are assigned the Highest Credit Rating by
the Rating Agencies (including, if applicable, the Trustee or any agent
of the
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16
Trustee acting in their respective commercial capacities) and in each
case where the Trustee has taken delivery of such security;
(d) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States of
America or any State whose debt obligations are assigned the Highest
Credit Rating by the Rating Agencies at the time of such investment or
contractual commitment providing for such investment; provided,
however, that securities issued by any particular corporation will not
be Eligible Investments to the extent that such an investment therein
will cause the then outstanding principal amount of securities issued
by such corporation and held as part of the Trust Fund for the Notes to
exceed ___% of the Trust Fund for the Notes;
(e) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand
or on a specified date not more than one year after the date of
issuance thereof) which have been assigned the Highest Credit Rating by
the Rating Agencies at the time of such investment;
(f) certificates or receipts representing ownership interests
in future interest or principal payments on obligations described in
clause (a) above which are held by a custodian on behalf of the holders
of such certificates or receipts;
(g) any other demand or time deposit, obligation, security or
investment provided that the Issuer shall have given prior written
notice of such other investment to the Rating Agencies, and the Trustee
shall have received written confirmation from each of the Rating
Agencies that no reduction, withdrawal or qualification in the rating
on the Notes by either such Rating Agency will result from the addition
of such Eligible Investment; and
(h) Eurodollar denominated certificates of deposit or time
deposits issued by a foreign depository institution or a depository
institution organized under the laws of the United States or any state
thereof so long as at the time of such investment or contractual
commitment providing for such investment (1) the commercial paper or
other short-term debt obligations of such depository institution (or,
in the case of a depository institution which is the principal
subsidiary of a holding company, the commercial paper or other
short-term debt obligations of such holding company) have the Highest
Credit Ratings available from the Rating Agencies; or (2) the long-term
debt securities of such depository institution are rated "___" or
better by the Rating Agencies.
"Eligible Moneys": Any moneys on deposit in trust with the
Trustee for the benefit of the Noteholders with respect to which the Trustee has
received an unqualified opinion of counsel nationally recognized as expert in
bankruptcy acceptable to the Trustee that payment of such amounts to the
Noteholders would not constitute avoidable preferences under ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or similar state laws with avoidable preference
provisions in the event of the filing of a petition for relief under the United
States Bankruptcy Code or similar state laws with avoidable preference
provisions by or against the
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Issuer or any borrower or the person from whom the money is received, if other
than the Issuer or the borrower.
"Event of Default": The meaning specified in Section 5.01.
"FHLMC": Federal Home Loan Mortgage Corporation, or any
successor thereto.
["Fitch": Fitch Investors Service, L.P., or its successor in
interest]
"FNMA": ▇▇▇▇▇▇ ▇▇▇, or any successor thereto.
"Full Prepayment": Payment to the Servicer, whether by the
obligor or through Insurance Proceeds, of an amount with respect to an Account
such that the full amount due with respect to such Account has been paid.
"Grant": To mortgage, pledge, assign and grant a security
interest in. A Grant of an Account and the related Account Documents, an
Eligible Investment, a Servicing Agreement or any other instrument shall include
all rights, powers and options (but none of the obligations) of the Granting
party thereunder, including without limitation the immediate and continuing
right to claim collect, receive and receipt for payments in respect of the
Account or Eligible Investment, insurance proceeds, condemnation awards,
purchase prices and all other moneys payable thereunder and all proceeds
thereof, 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 which the Granting party is or may be entitled to do or receive
thereunder or with respect thereto.
"Grantor": NationsBanc Asset Securities, Inc., a Delaware
corporation, in its capacity as grantor of the Trust, and as otherwise defined
in the Trust Agreement.
"Hazard Insurance Policy": With respect to each Account, the
policy of fire and extended coverage insurance required to be maintained for the
related Mortgaged Property, as provided in Section 2.13 of the Servicing
Agreement, and which, as provided in said Section 2.13, may be a blanket
mortgage impairment policy maintained by the Servicer in accordance with the
terms and conditions of said Section 2.13.
"Hazard Insurer": The named insurer in any Hazard Insurance
Policy.
"Highest Credit Rating": With respect to [S&P] [Fitch] [DCR]
[Moody's], ___________________.
"Holding Account": The account created and maintained pursuant
to the Holding Account Agreement.
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"Holding Account Agreement": The Holding Account Agreement
dated ______ __, 199_ among ________________________, as custodian for the
Trustee, the Servicer and the Issuer.
"Indenture" or "this Indenture": This instrument as originally
executed and, if from time to time supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, as so supplemented or amended. All references in this
instrument to designated "Articles", "Sections", "Subsections" and other
subdivisions are to the designated Articles, Sections, Subsections and other
subdivisions of this instrument as originally executed. The words "herein",
"hereof", "hereunder" and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section, Subsection or other
subdivision.
"Indenture Maturity Date": ________, 20__.
"Independent": When used with respect to any specified Person
means such a Person who (1) is in fact independent of the Issuer, any Affiliate
of the Issuer, any other obligor upon the Notes and any Affiliate of any such
other obligor, (2) does not have any direct financial interest or any material
indirect financial interest in the Issuer or in any such other obligor or in an
Affiliate of the Issuer or such other obligor, and (3) is not connected with the
Issuer, any Affiliate of the Issuer, any such other obligor or any Affiliate of
any such other obligor as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions. Whenever it is herein
provided that any Independent Person's opinion or certificate shall be furnished
to the Trustee, such Person shall be 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 this definition and that the
signer is Independent within the meaning thereof.
"Individual Note": A Note of an initial principal amount of
$_______; a Note of an original principal amount in excess of $_____ shall be
deemed to be a number of Individual Notes equal to the quotient obtained by
dividing such initial principal amount by $_____.
"Insurance Proceeds": Amounts paid by a Hazard Insurer with
respect to a particular Mortgaged Property pursuant to any related Hazard
Insurance Policy or paid by any other insurer with respect to a particular
Mortgaged Property pursuant to any other related insurance policy.
"Insured Expenses": Expenses incurred by the Servicer in
connection with an Account under which the mortgagor is in default which are
covered by any related Hazard Insurance Policy and are paid by the Hazard
Insurer under any such policy.
"Interest Accrual Amount": As to any Class of Notes for any
Distribution Date, an amount equal to the interest accrued on the Outstanding
Principal Balance of such Class of Notes (after giving effect to payments and
allocations of losses on the preceding Distribution Date) during the Interest
Accrual Period ending on the day prior to the
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Distribution Date at the applicable Note Interest Rate for such Class of Notes;
provided, however, that such amount shall not include interest due and payable
with respect to unreimbursed Realized Loss Amounts.
"Interest Accrual Period": The three-month period ending on
the day prior to such Distribution Date.
"Interest Distribution Date": Each ____________, ____________,
____________ and _______________ commencing ____________, 199_.
"Issuer": _____________________, a _______________ business
trust created pursuant to the Trust Agreement, until a successor Person shall
have become the Issuer pursuant to the applicable provisions of this Indenture,
and thereafter "Issuer" shall mean such successor Person.
"Issuer Expenses": All operating expenses of the Issuer
(exclusive of interest on the Notes, but including the fees and expenses of the
Owner Trustee and the Trustee (including, without limitation, amounts to which
the Trustee is entitled under Section 5.04)) and the Servicing Fee.
"Issuer Order" and "Issuer Request": A written order or
request signed in the name of the Issuer by an Authorized Officer, and delivered
to the Trustee.
"Liquidation Expenses": Expenses incurred by the Servicer in
connection with the liquidation of any Account which is in default and the sale
of any property acquired in respect thereof which are not recoverable as Insured
Expenses and are otherwise reimbursable to the Servicer in accordance with
Sections 2.07(c), 2.11 and 2.15 of the Servicing Agreement.
"Liquidation Proceeds": Cash and new Account Notes with
related security instruments received by the Servicer (before reimbursement of
the Servicer for Liquidation Expenses) in connection with the liquidation of any
Account which is in default and the sale of any property acquired in respect
thereof, whether as Insurance Proceeds or through trustee's sale, foreclosure
sale or otherwise.
"Maturity": With respect to the Notes, the date on which the
entire unpaid principal amount of the Notes becomes due and payable as therein
or herein provided, whether at the date specified therefor in the Notes or, if
earlier, by declaration of acceleration, call for redemption or otherwise.
"Maturity Date": With respect to any Account, the date on
which the last payment of principal of such Account shall be due and payable.
"Minimum Target Overcollateralization Amount": For any
Distribution Date, [describe amount].
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"Month of Closing": The month in which the Closing Date
occurs.
"Monthly Cut-Off Date": As defined in the Servicing Agreement.
"Monthly Payment": With respect to any Account, the scheduled
monthly payment payable to the holder of such Account in accordance with the
terms of the related Account Note.
["Moody's": ▇▇▇▇▇'▇ Investors Service, Inc., or its successor
in interest.]
"Mortgage": With respect to an Account, the original mortgage,
deed of trust, mechanic's lien contract or other security instrument executed by
an obligor which creates a lien on real property and improvements thereon
securing an Account Note, or any Trust Mortgage.
"Mortgaged Property": The real property and improvements
thereon that are subject to a Mortgage.
"Net Liquidation Proceeds": With respect to any Account, the
amount derived by subtracting from the Liquidation Proceeds of such Account the
related Liquidation Expenses.
"Note Interest Rate": With respect to each Class, the annual
rate at which interest accrues on such Class of Notes, as specified in such
Class of Notes and in Section 2.03.
"Note Register" and "Note Registrar": As defined in Section
2.07.
"Notes": Any notes authorized by, and authenticated and
delivered under, this Indenture.
"Noteholder" or "Holder": The Person in whose name a Note is
registered in the Note Register.
"Obligor": Each Person who is indebted under an Account Note
or who has acquired real property subject to the Mortgage securing an Account
Note.
"Officer's Certificate": A Certificate signed by an Authorized
officer.
"Opinion of Counsel": A written opinion of counsel who may,
except as otherwise expressly provided in this Indenture, be counsel for the
Issuer and who shall be satisfactory to the Trustee.
"Optimal Principal Amount": An amount equal to (A) on any
Distribution Date (i) on or prior to the Target Overcollateralization Date or
(ii) after the Target Overcollateralization Date and on which there exists an
uncured Trigger Event, the Remaining Available Funds; and (B) on any
Distribution Date after the Target Overcollateralization Date
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on which there does not exist an uncured Trigger Event, the amount which, when
paid as principal on the Notes, will result in achieving or maintaining the
Target Overcollateralization Level; provided that in no event will the Optimal
Principal Amount for any Distribution Date exceed the Remaining Available Funds
for such Distribution Date or the Aggregate Outstanding Principal Balance.
"Outstanding": As of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore cancelled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof for whose payment or
redemption money (complying with Section 4.01) in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent
(other than the Issuer) in trust for the Holders of such Notes;
provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor, satisfactory to the Trustee, has been made; and
(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Trustee is presented that any such Notes are
held by a Holder in due course;
provided, however, that in determining whether the Holders of the requisite
percentage of the Voting Rights or of the Aggregate Outstanding Principal
Balance of the Outstanding Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Notes owned by the Issuer, any
other obligor upon the Notes or any Affiliate of the Issuer or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, or waiver, only
Notes which the Trustee knows to be so owned shall be so disregarded. Notes so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Notes and that the pledgee is not the Issuer, any
other obligor upon the Notes or any Affiliate of the Issuer or such other
obligor.
"Outstanding Principal Balance": Any of the Class A-1
Outstanding Principal Balance, Class A-2 Outstanding Principal Balance, Class
A-3 Outstanding Principal Balance and Class A-4 Outstanding Principal Balance,
as applicable.
"Overcollateralization Amount": With respect to a Distribution
Date, the amount equal to (a) the Aggregate Economic Balance of the Accounts on
the first day of the month preceding the month of such Distribution Date less
(b) the sum of the Aggregate Outstanding Principal Balance and all unreimbursed
Realized Loss Amounts, in each case after giving effect to the payments made but
prior to the allocation of losses thereon on such Distribution Date.
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"Overcollateralization Percentage": A fraction expressed as a
percentage the numerator of which is equal to the excess of (i) the Aggregate
Economic Balance of the Accounts as of the first day of the month preceding the
month in which the Target Overcollateralization Date occurs over (ii) the
Aggregate Outstanding Principal Balance of all Classes of Notes and all
unreimbursed Realized Loss Amounts with respect to all Classes of Notes on the
Target Overcollateralization Date (after giving effect to payments and
allocations of losses on the Target Overcollateralization Date) and the
denominator of which is the Aggregate Economic Balance of the Accounts as of the
first day of the month preceding the month in which the Target
Overcollateralization Date occurs.
"Owner Trustee": ________________________, acting not in its
individual capacity but solely as owner trustee with respect to the Issuer, or
such successor person as shall become owner trustee pursuant to applicable
provisions of this Indenture and shall be owner trustee under, or become owner
trustee pursuant to applicable provisions of the Trust Agreement.
"Paying Agent": The Trustee or any other depository
institution or trust company that is authorized by the Issuer pursuant to
Section 3.03 to pay the principal of, or interest on, any Notes on behalf of the
Issuer.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
"Predecessor Notes": 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 2.08 in lieu of a lost, destroyed
or stolen Note shall be deemed to evidence the same debt as the lost, destroyed
or stolen Note.
"Principal Distribution Date": one of the fixed dates on which
an installment of principal is due and payable on the Notes; such dates are each
________, _________, ________ and __________ beginning _________, 199_.
"Proceeding": Any suit in equity, action at law or other
judicial or administrative Proceeding.
"Purchase and Sale Agreement": The Purchase and Sale
Agreement, dated __________, 199_, between the Grantor and the Trust which
provides for, among other things, the purchase by the Trust of all interest of
the Grantor in the Accounts.
"Qualified Substitute Account": Means an account substituted
by the Issuer for a Deleted Account which must, on the date of such
substitution, (i) have an outstanding Economic Balance, after deduction of all
scheduled payments due in the month of substitution, not less than the Economic
Balance of the Deleted Account (unless the amount of any shortfall will be
deposited into the Collection Account by the Issuer, pursuant to Section 3.11
(b), for
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distribution to Noteholders in the month following the month of substitution),
(ii) have an Effective Financing Rate not less than the Effective Financing Rate
of the Deleted Account, (iii) comply with each representation and warranty set
forth in Section 3.11 (a), (iv) generally be of like quality and type as the
Deleted Account and (v) have an original term to maturity which shall not exceed
_______, 20__. In the event that either one account is substituted for more than
one Deleted Account, or more than one account is substituted for one or more
Deleted Accounts, then the amount described in clause (i) hereof shall be
determined on the basis of aggregate Economic Balances.
"Rating Agencies": Each of [S&P] [Fitch] [DCR] [and]
[▇▇▇▇▇'▇].
"Realized Loss Amount": Any of the Class A-1 Realized Loss
Amount, Class A-2 Realized Loss Amount, Class A-3 Realized Loss Amount and Class
A-4 Realized Loss Amount, as applicable.
"Record Date": With respect to any Distribution Date, the date
on which the Persons entitled to receive any payment of principal of or interest
on any Notes (or notice of a payment in full of principal) due and payable on
such Distribution Date are determined; such date shall be the 15th day of the
month preceding the month of such Distribution Date.
"Redemption Date": Any Principal Distribution Date on which
Notes are to be redeemed at the option of the Issuer pursuant to Article X.
"Redemption Price": With respect to any Note to be redeemed
pursuant to Article X hereof, an amount equal to 100% of the Outstanding
Principal Balance of the Note to be so redeemed (prior to allocations of any
Realized Loss Amounts), together with interest on such amount and interest on
any unpaid interest or unreimbursed Realized Loss Amounts at the applicable Note
Interest Rate from the latest date to which interest has been paid to the
applicable Redemption Date.
"Remaining Available Funds": With respect to any Distribution
Date, an amount (which shall not be less than zero) equal to (i) the Available
Funds for such Distribution Date reduced by (ii) the amount of interest due and
payable on the unpaid principal Balance of the Notes on such Distribution Date
(excluding interest on any Realized Loss Amounts).
"Remittance": With respect to any one or more Accounts for any
particular date or period, the net amount with respect to collections or
receipts on such Account or Accounts for such date or period that is required to
be remitted by the Servicer to the Trustee for deposit in the Collection
Account.
"Remittance Date": The first Business Day of each week,
beginning with the week after the Closing Date and the first Business Day
following the end of each Due Period.
"Responsible Officer": With respect to the Trustee, the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee
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of the board of directors, the president, any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any trust officer or assistant trust officer, the
controller, any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
["S&P": Standard & Poor's, and its successor in interest.]
"Sale": As defined in Section 5.18.
"Schedule of Accounts": Collectively, the list of Accounts
being Granted to the Trustee as part of the Trust Fund on the Closing Date
appearing on a magnetic tape delivered to the Trustee on the Closing Date which
list shall set forth the following information as of the Cut-Off Date with
respect to each such Account in numbered columns:
Column Number Information
1 Account Number
2 Zip Code
3 First Distribution Date
4 Total number of payments to be made
5 Monthly Payment
6 original amount of the note
7 Total finance charge over the term of
the note
8 Paid-through date
9 Status code
10 Resale or original
11 Amount of late charges due
12 Date of last payment received
13 Account balance
14 Taxes due
15 Insurance due
16 Late charges due
17 Other charges due
18 Rebate method
"Servicer": _________________________, a ________________
corporation, as servicer under the Servicing Agreement, and its permitted
successors and assigns thereunder, including any successor servicer appointed
pursuant to Section 3.07(d).
"Servicer Reporting Date": The date each month on which the
Servicer is required pursuant to Section 3.01 of the Servicing Agreement to
report to the Issuer, the Accountants and the Trustee information concerning the
Accounts, including all collections on
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the Accounts received by it during the related Remittance Period (as defined in
the Servicing Agreement), which date shall be the 20th day of each month
following such Remittance Period or, if such day is not a Business Day, the next
preceding Business Day.
"Servicing Account": As defined in Section 2.08(b) of the
Servicing Agreement.
"Servicing Agreement": The Servicing Agreement, dated
_____________, 199_, among the Issuer, the Servicer and the Trustee, providing,
among other things, for the servicing of the Accounts, as said agreement may be
amended or supplemented from time to time as permitted hereby and thereby. Such
term shall also include any servicing agreement entered into with a successor
servicer pursuant to Section 3.07(d) hereof.
"Servicing Default": Any default by the Servicer under the
Servicing Agreement that is an "Event of Default" under the Servicing Agreement,
as specified in Section 5.01 thereof.
"Servicing Fee": With respect to any Account, other than an
Account with respect to which (i) the related Mortgaged Property has been
repossessed or (ii) the related Economic Balance is zero pursuant to the proviso
of the definition of "Economic Balance", the fee payable to the Servicer under
the Servicing Agreement.
"Servicing Officer": Any officer of the Servicer involved in,
or responsible for, the administration and servicing of the Accounts whose name
appears on a list of servicing officers furnished to the Issuer and the Trustee
by the Servicer, as such list may be amended or supplemented from time to time.
"Stated Maturity Date": _____________, 20__.
"Successor Servicer": The Person appointed, or required to act
as, Successor Servicer pursuant to Section 3.07 hereof.
"Target Overcollateralization Date": The Distribution Date
occurring in _____ 20__.
"Target Overcollateralization Level": As of any Distribution
Date, the level of overcollateralization that would exist if the
overcollateralization Amount were equal to the greater of (i) the product of (x)
the Overcollateralization Percentage and (y) the Aggregate Economic Balance of
the Accounts as of the first day of the month preceding the month of such
Distribution Date and (ii) the Minimum Target Overcollateralization Amount.
"Trigger Event": Any one of the following events:
(a) the Issuer fails to make a payment due hereunder and
such failure continues for two Business Days;
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(b) the Servicer fails to make a required payment or
deposit due under the Servicing Agreement and such
failure continues for four Business Days;
(c) An Event of Default (as defined in the Servicing
Agreement) occurs under Section ____________________
of the Servicing Agreement;
(d) a breach of any covenant of the Servicer in the
Servicing Agreement which may have a materially
adverse effect on the Servicer or its performance
under the Servicing Agreement is not cured within 60
days after the Servicer becomes aware thereof or
after notice thereof from any Person;
(e) there shall occur the entry of a decree or order for
relief by a court having jurisdiction in respect of
the Issuer in an involuntary case under the federal
bankruptcy laws, as now or hereafter in effect, or
any other present or future federal or state
bankruptcy, insolvency or similar law, or appointing
a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer
or of any substantial part of its property, or
ordering the winding up or liquidation of the affairs
of the Issuer and the continuance of any such decree
or order unstayed and in effect for a period of 60
consecutive days;
(f) there shall occur the commencement by the Issuer of a
voluntary case under the federal bankruptcy laws, as
now or hereafter in effect, or any other present or
future federal or state bankruptcy, insolvency or
similar law, or the consent by the Issuer to the
appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer
or of any substantial part of its property or the
making by the Issuer of an 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 corporate action by the Issuer in
furtherance of any of the foregoing;
(g) the Contract Sale Agreement, the Purchase and Sale
Agreement, the Servicing Agreement or this Indenture
ceases to be in full force and effect; or
(h) the lien of the Indenture ceases to be effective or
ceases to be of a first priority.
"Trust": The trust established by the Trust Agreement.
"Trust Agreement": The trust agreement, dated as of ________,
199_ between the Bank and the Grantor.
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"Trust Fund": All money, instruments and other property
subject or intended to be subject to the lien of this Indenture for the benefit
of the Holders of the Notes as of any particular time (including all property
and interests Granted to the Trustee in the Granting Clauses of this Indenture),
including all proceeds thereof, and all right, title and interest of the Trustee
in, to and under the Servicing Agreement and all money and property received by
the Trustee pursuant thereto in respect of the Accounts.
"Trust Indenture Act" or "TIA": The Trust Indenture Act of
1939, as amended, as in force at the Closing Date, unless otherwise specifically
provided.
"Trust Mortgage": Any mortgage, deed of trust or similar
security instrument from the Issuer to the Trustee encumbering a Mortgaged
Property owned by the Issuer whether as part of an Account transferred on the
Closing Date or pursuant to a foreclosure or repossession of Mortgaged Property.
"Trustee": _________________________________________, until a
successor Person shall have become the Trustee pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee,, shall mean such
successor Person.
"Vice President": With respect to the Trustee, any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
"Voting Rights": With respect to a Class of Notes, a fraction,
expressed as a percentage, the numerator of which is equal to the Outstanding
Principal Balance of such Class of Notes and the denominator of which is equal
to the Aggregate Outstanding Principal Balance of all Classes of Notes.
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ARTICLE II
THE NOTES
SECTION 2.01. Forms Generally.
The Notes and the Trustee's certificate of authentication
shall be in substantially the forms set forth in this Article, 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 be required to comply with the rules of any securities exchange on which the
Notes may be listed, or as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution thereof. Any
portion of the text of any Note may be set forth on the reverse thereof with an
appropriate reference on the face of the Notes.
The definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Notes may be listed, all as determined by the officers
executing such Notes, as evidenced by their execution thereof.
SECTION 2.02. Forms of Notes and Certificate of
Authentication.
(a) The form of the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes shall be as set forth respectively as
Exhibits A, B, C and D hereto.
SECTION 2.03. Notes; General Provisions with Respect to
Principal and Interest.
(a) The aggregate principal amount of Notes that may be
authenticated and delivered under the Indenture is limited to
$_____________________, except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Sections 2.06, 2.07, 2.08 or 9.06 of this Indenture.
The Notes shall be divided into four Classes having
designations, original principal amounts, Note Interest Rates and Indenture
Maturity Dates as follows:
Initial Indenture
Principal Note Interest Maturity
Designation Balance Rate Date
----------- ------- ---- ----
Class A-1 Notes $ %
Class A-2 Notes $ %
Class A-3 Notes $ %
Class A-4 Notes $ %
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The principal of each Note shall be payable in installments
ending no later than the Maturity of the final installment of the principal
thereof unless the unpaid principal of such Note becomes due and payable at an
earlier date by declaration of acceleration or call for redemption or otherwise.
Interest on the Notes of each Class shall be payable on each
Interest Distribution Date in the amount of the sum of (i) the Interest Accrual
Amount for such Class of Notes and (ii) all Class Interest Shortfalls for such
Class of Notes that have not previously been paid, together with accrued
interest on such Class Interest Shortfalls at the related Note Interest Rate to
the extent permitted by law. All payments made with respect to any Note shall be
applied first to the interest then due and payable on the current principal
amount outstanding on such Note and then to the principal thereof. All
computations of interest accrued on any Note shall be made as if each year
consisted of twelve months of thirty days each.
All payments of principal of and interest on any Note shall be
made in the manner specified in Section 2.09 and in the amounts prescribed in
Section 5.08 or 8.02(c), as the case may be.
Notwithstanding any of the foregoing provisions with respect
to payments of principal of and interest on the Notes, if the Notes have become
or been declared due and payable following an Event of Default and such
acceleration of Maturity and its consequences have not been rescinded and
annulled and the provisions of Section 5.05(a) are not applicable, then payments
of principal of and interest on the Notes shall be made in accordance with
Section 5.08.
All Notes of the same Class shall be identical in all respects
except for the denominations, Note numbers and dates thereof. All Notes of the
same Class issued under this Indenture shall be in all respects equally and
ratably entitled to the benefits hereof without preference, priority or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Indenture.
SECTION 2.04. Denominations.
The Notes shall be issuable only as registered Notes in
minimum denominations of $______.
SECTION 2.05. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Issuer by its
Authorized Officer. The signature of any of these officers on the Notes may be
manual or facsimile.
Notes bearing the manual or facsimile signature of individuals
who were at any time Authorized Officers 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.
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The Notes which are authenticated and delivered by the Trustee
to or upon the order of the Issuer on the Closing Date shall be dated the
Closing Date. All other Notes which are authenticated after the Closing Date for
any other purpose hereunder shall be dated the date of their authentication.
The Notes may be authenticated by the Trustee either at the
Corporate Trust Office or at the Trustee's office or agency in the
_______________________.
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 in the
related exhibit hereto executed by the Trustee or by any Authenticating Agent by
the manual signature of one of its authorized officers ` employees or
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 2.06. Temporary Notes.
Pending the preparation of definitive Notes, the Issuer may
execute, and upon Issuer Order the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Notes in lieu of which they may be so issued and with such
variations as the officers executing such Notes may determine, as evidenced by
their execution of such Notes.
If temporary Notes are issued, the Issuer will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Issuer to be maintained as provided in Section 3.02, without charge to
the Holder. Upon surrender or cancellation of any one or more temporary Notes,
the Issuer shall execute and the Trustee shall authenticate and deliver and
exchange therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
SECTION 2.07. 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 is hereby initially appointed "Note Registrar"
for the purpose of registering Notes and transfers of Notes as herein provided.
` Upon any resignation of any Note Registrar appointed by the Issuer, the Issuer
shall promptly appoint a successor or, in the absence of such appointment, shall
assume the duties of Note Registrar.
At any time at which the Trustee is not also the Note
Registrar, the Trustee shall be a co-Note Registrar. The Trustee, if it shall
ever be serving as co-Note Registrar,
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shall furnish the Note Registrar promptly after each authentication of a Note by
the Trustee appropriate information with respect thereto for entry by the Note
Registrar into the Note Register. If the Trustee shall at any time not be
authorized to keep and maintain the Note Register, the Trustee shall have the
right to inspect such Note Register at all reasonable times and to rely
conclusively upon a certificate of the Person in charge of the Note Register as
to the names and addresses of the holders of the Notes and the principal amounts
and numbers of such Notes so held.
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, the
Issuer shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Notes of any
authorized denominations, and of the same Class and a like aggregate principal
amount.
At the option of the Holder, Notes may be exchanged for other
Notes of the same Class of any authorized denominations and of a like aggregate
initial principal amount, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any Notes are so surrendered for exchange, the Issuer
shall execute, and the Trustee shall authenticate and deliver, the Notes which
the Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge as may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.08 not involving any transfer.
The Notes will initially be represented by certificated Notes
registered in the name of Cede & Co., as nominee of the Depository Trust Company
("DTC"). No person acquiring a beneficial interest in a Note will be entitled to
receive a certificated Note, except as described in the next paragraph of this
Section 2.07.
The Notes will be issued to and registered in the Note
Register in the name of a person acquiring a beneficial interest in such Notes
only if the Trustee receives a written notice from the Issuer that (i) DTC is no
longer willing or able to discharge properly its responsibilities as depository
with respect to the Notes and the Issuer is unable to locate a qualified
successor or (ii) the Issuer, at its option, elects to terminate the book-entry
system through DTC. Upon the occurrence of either event described in clauses (i)
and (ii) above, the Trustee shall notify DTC of the occurrence of either such
event. Upon surrender by DTC of
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the certificated Notes and satisfaction of the conditions set forth in this
Section 2.07 of the Indenture for the registration of transfer and receipt by
the Trustee of a list of the names and addresses of the beneficial owners of the
Notes in whose name the Notes are to be registered, new Notes shall be delivered
pursuant to this Section 2.07.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Notes.
If (1) 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, and (2) there is delivered to the Trustee such security or
indemnity as may be required by the Trustee to save each of the Trustee and the
Issuer harmless, then, in the absence of notice to the Issuer or the Trustee
that such Note has been acquired by a bona fide purchaser, the Issuer shall
execute and upon its direction the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
new Note or Notes of the same Class, tenor and aggregate initial principal
amount bearing a number not contemporaneously outstanding; provided, however,
that if any such mutilated, destroyed, lost or stolen Note shall have become or
shall be about to become due and payable, or shall have become subject to
redemption in full, instead of issuing a new Note, the Issuer may pay such Note
without surrender thereof, except that any mutilated Note shall be surrendered.
If, after the delivery of such new Note or payment of a destroyed, lost or
stolen Note pursuant to the proviso to the preceding sentence, a bona fide
purchaser of the original Note in lieu of which such new Note was issued
presents for payment such original Note, the Issuer and the Trustee shall be
entitled to recover such new Note (or such payment) from the Person to whom it
was delivered or any Person taking such new Note from such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer or the Trustee in connection therewith.
Upon the issuance of any new Note under this Section, the
Issuer may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.
Except to the extent provided in the first paragraph of this
Section 2.08, every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Issuer, whether or not the 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, to the extent
provided herein, 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.
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SECTION 2.09. Payments of Principal and Interest.
(a) Any installment of interest or principal payable on any
Note which is punctually paid or duly provided for by the Issuer on the
applicable Distribution Date shall be paid to the Person in whose name such Note
(or one or more Predecessor Notes) is registered at the close of business on the
Record Date for such Distribution Date by check mailed to such Person's address
as it appears in the Note Register on such Record Date, except that with respect
to a Note registered in the name of the nominee of a clearing agency (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 in writing
at least two Business Days prior to such Distribution Date and except for the
final installment of principal payable with respect to such Note (or the
Redemption Price for any Note called for redemption), which shall be payable as
provided in subsection (b) of this Section 2.09.
(b) All reductions in the principal amount of a Note (or one
or more Predecessor Notes) effected by means of an allocation of the Realized
Loss Amount or by payments of installments of principal made on any Distribution
Date shall be binding upon all Holders of such Note and of any Note issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof,
whether or not such payment is noted on such Note. The final installment of
principal of each Note (including the Redemption Price of any Note called for
redemption pursuant to Section 10.01) shall be payable only upon presentation
and surrender thereof on or after the Distribution Date or Redemption Date
therefor at the Corporate Trust Office or at the office or agency of the Issuer
maintained by it for such purpose set forth in Section 3.02.
Whenever, on the basis of Remittances on the Accounts received
and expected to be received during the related Due Periods or on the related
Distribution Date, as applicable, the Issuer expects that the entire remaining
unpaid principal amount of the Notes will become due and payable on the next
Principal Distribution Date, it shall, no later than ten days prior to such
Principal Distribution Date, mail or cause to be mailed to each Person in whose
name a Note to be so retired is registered at the close of business on the
Record Date that would otherwise be applicable to such Principal Distribution
Date a notice to the effect that:
(i) the Issuer expects that funds sufficient to pay such
final installment will be available in the Collection Account on such
Principal Distribution Date, and
(ii) if such funds are available, (A) such final
installment will be payable on such Distribution Date, but only upon
presentation and surrender of such Note at the Corporate Trust office
or at the office or agency of the Issuer maintained for such purpose
pursuant to Section 3.02 (the addresses of which shall be set forth in
such notice), and (B) no interest shall accrue on such Note after such
Principal Distribution Date.
Notices in connection with redemptions of Notes shall contain the information
set forth in, and be mailed in accordance with, Section 10.02.
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(c) Subject to the foregoing provisions of this Section, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to unpaid
principal and interest that were carried by such other Note. Any checks mailed
pursuant to subsection (a) of this Section 2.09 and returned undelivered shall
be held in accordance with Section 3.03.
(d) Not later than each Debt Service Requirement Determination
Date, the Trustee shall prepare and deliver to the Issuer a statement with
respect to the following Distribution Date (a "Distribution Date Statement")
setting forth:
(i) the amount of Issuer Expenses paid or due to be paid
in respect of the related Due Period;
(ii) the amount of the Available Funds for such
Distribution Date;
(iii) the amount of interest then due and payable on the
Notes then Outstanding (stated separately as to each Class);
(iv) the optimal Principal Amount for each Class;
(v) whether the Available Funds for such Distribution
Date will be sufficient to pay on such Distribution Date all amounts
specified in clause (iii) and, if not, the percentages of such amount
which may be paid in accordance with the priorities set forth in
Section 8.02(c) from the amounts expected to be available in the
Collection Account;
(vi) the Class Interest Shortfall (stated separately as to
each Class);
(vii) the amounts included in such statement pursuant to
clauses (iii) and (iv), expressed in each case per Individual Note, to
be paid on such Distribution Date;
(viii) the amount, if any, to be released to the Issuer
pursuant to clause twenty-second of Section 8.02(c);
(ix) the total Realized Loss Amount and amount allocated
to each Class of Notes and interest thereon;
(x) the unpaid principal amount of each Class of Notes
which will remain after giving effect to the payments to be made on
such Distribution Date expressed both on an aggregate basis and per
Individual Note;
(xi) the Cumulative Actual Net Economic Losses as of the
end of the related Due Period;
(xii) the Economic Balance as of the end of the related Due
Period of Accounts with respect to which there is a material breach of
any representation or
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warranty made in Section 3.11 or as to which there is a material defect
in the related Account Documents in accordance with Section 3.12 (b);
(xiii) the Minimum Target Overcollateralization Amount;
(xiv) cumulative unreimbursed Realized Loss Amounts;
(xv) the Aggregate Economic Balance of the Accounts at
immediately following the end of the related Due Period; and
(xvi) the number and Aggregate Economic Balance of all
Accounts 30, 60 and 90 or more days past due and in repossession,
foreclosure or bankruptcy.
Each Distribution Date Statement shall be delivered by the
Trustee to the Issuer, each designee of the Issuer specified in writing to the
Trustee, ▇▇▇▇▇▇ Brothers Inc., S&P, ▇▇▇▇▇'▇, the firm of Independent Accountants
appointed by the Issuer pursuant to Section 8.07(a) and, upon request, to the
beneficial owners of the Notes.
SECTION 2.10. Persons Deemed Owners.
Prior to due presentment for registration of transfer of any
Note, the Issuer, the Trustee, any Agent and any other agent of the Issuer or
the Trustee may treat the Person in whose name any Note is registered as the
absolute owner of such Note for all purposes whatsoever, whether or not such
Note is overdue, and neither the Issuer, the Trustee, any Agent nor any other
agent of the Issuer or the Trustee shall be affected by notice to the contrary.
SECTION 2.11. Cancellation.
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 such Notes, together with all such
Notes so surrendered directly to the Trustee, shall be promptly cancelled by it.
The Issuer may at any time deliver to the Trustee for cancellation any Note
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
cancelled by the Trustee. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Notes held by the Trustee
shall be held by the Trustee in accordance with its standard retention policy,
unless the Issuer shall direct by an Issuer Order that they be destroyed or
returned to it.
SECTION 2.12. Authentication and Delivery of Notes.
The Notes may be executed by the Issuer and delivered to the
Trustee for authentication, and thereupon the same shall be authenticated and
delivered by the Trustee, upon Issuer Request and upon receipt by the Trustee of
the following items required to be
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delivered to the Trustee in connection with the initial authentication and
delivery of the Notes on the Closing Date:
(a) an Issuer Order authorizing the authentication and
delivery of the Notes;
(b) an Officers' Certificate of the Issuer, complying with the
requirements of Section 11.01, stating that:
(i) the Issuer is not in Default under this
Indenture and the issuance of the Notes will not result in any
breach of any of the terms, conditions or provisions of, or
constitute a default under, the Trust Agreement or any other
constituent documents of the Issuer, or any indenture,
mortgage, deed of trust or other agreement or instrument to
which the Issuer is a party or by which it is bound, or any
order of any court or administrative agency entered in any
proceeding to which the Issuer is a party or by which it may
be bound or to which it may be subject, and all conditions
precedent provided in this Indenture relating to the
authentication and delivery of the Notes have been complied
with;
(ii) the Issuer is the owner of and has good
title to each Account, has not assigned any interest or
participation in any such Account (or, if any such interest or
participation has been assigned, it has been released) and has
the right to Grant each such Account to the Trustee, and no
other Person has any lien on, security interest in or other
rights to any such Account;
(iii) the Issuer has Granted to the Trustee all of
its right, title, and interest in each Account Granted to the
Trustee by it to secure the Notes;
(iv) the information set forth in the Schedule of
Accounts to this Indenture is correct;
(v) attached thereto are true and correct copies
of letters signed by the Rating Agencies confirming that the
Class A-1 Notes have been rated ___ by the Rating Agencies,
the Class A-2 Notes have been rated at least ___ by the Rating
Agencies, the Class A-3 Notes have been rated at least __ by
the Rating Agencies and the Class A-4 Notes have been rated at
least ___ by the Rating Agencies; and
(vi) each of the Accounts satisfies the
requirements of subsection (c) below;
(c) all of the Accounts and all Account Documents (except that
(A) in lieu of delivering the Account Documents for any Account which
has been the subject of a Full Prepayment received by the Servicer
after the Cut-Off Date but no later than five Business Days prior to
the Closing Date, the Issuer may deliver, or cause to be delivered, as
indicated in the Officers, Certificate from the Servicer delivered
pursuant
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to subsection (e) of this Section 2.12, the cash proceeds of such Full
Prepayment, (B) in lieu of delivering the Account Documents for any
Account with respect to which foreclosure proceedings have been
commenced and such Account Documents are required in connection with
the prosecution of such proceedings, the Issuer may deliver a trust
receipt pursuant to Section 3.13 (c) of this Indenture and (C) the
Trustee's review of such Account Documents pursuant to Section 3.12
need not be completed until 90 days following the Closing Date), which
Accounts:
shall have an aggregate Economic Balance at least
equal to $______________ as of the Cut-Off Date, and
shall satisfy each of the representations and
warranties with respect to such Accounts set forth in Section
3.11 of this Indenture;
(d) an executed counterpart of the Servicing Agreement;
(e) an Officer's Certificate from the Servicer, dated as of
the Closing Date, certifying that all Monthly Payments (net of the
Servicing Fee) on the Accounts due after the Cut-Off Date and received
more than five Business Days prior to the Closing Date plus the
proceeds of each Full Prepayment of any such Account (including any
related payment of interest) received by the Servicer after the Cut-Off
Date but more than five Business Days prior to the Closing Date have
been remitted to the Trustee for deposit in the Collection Account in
accordance with Section 2.08 of the Servicing Agreement and setting
forth the aggregate amount so remitted representing a Full Prepayment
received by the Servicer after the Cut-Off Date but more than five
Business Days prior to the Closing Date;
(f) a letter, addressed to the Trustee, of a firm of
Independent Accountants of recognized national reputation to the effect
that:
(1) they have performed the following procedures
(which need not constitute an examination in accordance with
generally accepted auditing standards):
(A) they have randomly selected a sample of
the Accounts, and compared the Account number, the
total number of Monthly Payments to be made under the
Account during its term, the total finance charge
over the term of the related Account Note, Monthly
Payment, amount financed and the original principal
balance set forth in the related Account Documents to
the corresponding item in the Schedule of Accounts;
and
(B) they recalculated the Economic Balance
for each Account and compared the Economic Balance
calculated by the Issuer to the Economic Balances
calculated by them for each Account and compared the
aggregate Economic Balance for all Accounts
calculated by them to
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the aggregate initial principal amount of the Notes
proposed to be authenticated and delivered; and
(2) based upon the above-specified procedures, such
firm has determined that:
(A) they are 95% confident that the
particular attributes of the Accounts tested by them
as described in paragraph (1) (A) above will not vary
from the corresponding information set forth on the
Schedule of Accounts for more than ___% of all of the
Accounts; and
(B) the Economic Balance calculated by the
Issuer for the Accounts (specifically,
$_________________) does not exceed the Economic
Balance for the Accounts as calculated by them in
accordance with the definition of the term "Economic
Balance" and the aggregate of the Economic Balances
calculated by them for all Accounts is not less than
____% of the aggregate initial principal amount of
the Notes proposed to be authenticated and delivered;
(g) cash in the amount equal to the amount, if any, required
to be remitted to the Trustee pursuant to Section 2.08 of the Servicing
Agreement (as indicated by the officers, Certificate from the Servicer
delivered pursuant to subsection (e) of this Section 2.12) and
deposited in the Collection Account and held by the Trustee and applied
in accordance with Section 8.02;
(h) an executed copy of the Contract Sale Agreement and the
Purchase and Sale Agreement;
(i) an executed copy of the Trust Agreement;
(j) an executed copy of the Holding Account Agreement; and
(k) a copy of the fidelity bond required pursuant to Section
4.05 of the Servicing Agreement; and
(1) an opinion of Independent Counsel either stating that, in
the opinion of such counsel, such action has been taken and is necessary to
perfect and maintain the security interest created by this Indenture with
respect to the Trust Estate and reciting the details of such action or stating
that in the opinion of such counsel no such action is necessary to maintain such
lien and security interest.
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ARTICLE III
COVENANTS; REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Payment of Notes.
The Issuer will pay or cause to be duly and punctually paid
the principal of and interest on the Notes in accordance with the terms of the
Notes and this Indenture.
SECTION 3.02. Maintenance of Office or Agency.
The Issuer will maintain in the Borough of Manhattan, the City
of New York, the State of New York and in the city where the Corporate Trust
Office is located an office or agency where Notes may be presented or
surrendered for payment or 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 will give prompt written
notice to the Trustee of the location and any change in the location of such
office or agency. Until written notice of any change in the location of such
office or agency is delivered to the Trustee or if at any time the Issuer shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, Notes may be so presented or surrendered, and
such notices and demands may be made or served, at the office of
________________________________________ and at the Corporate Trust Office.
The Issuer may also from time to time designate one or more
other offices or agencies (in or outside the City of New York or the city where
the Corporate Trust Office is located) where the Notes may be presented or
surrendered for any or all such purposes and where notices and demands may be
served and may from time to time rescind such designations; provided, however,
that (i) no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency in the City of New
York, for the purposes set forth in the preceding paragraph and (ii) any
designation of an office or agency for payment of Notes shall be subject to
Section 3.03. The Issuer will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other off ice or agency.
SECTION 3.03. Money for Note Payments to Be Held in Trust.
All payments of amounts due and payable with respect to any
Notes which are to be made from amounts withdrawn from the Collection Account
pursuant to Section 8.02(c) or Section 5.08 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 for payments of Notes shall be paid over to the
Issuer under any circumstances except as provided in this Section 3.03 or in
Section 5.08 or 8.02.
If the Issuer shall have a Paying Agent that is not also the
Note Registrar, it shall furnish, or cause the Note Registrar to furnish no
later than the fifth Business Day after
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each Record Date, a list, in such form as such Paying Agent may reasonably
require, of the names and addresses of the Holders of Notes and of the number of
Individual Notes held by each such Holder.
Whenever the Issuer shall have a Paying Agent other than the
Trustee, it will, on or before the Business Day next preceding each Distribution
Date, direct the Trustee to deposit with such Paying Agent an aggregate sum
sufficient to pay all amounts then becoming due (to the extent funds are then
available for such purpose in the Collection Account), such sum to be held in
trust for the benefit of the Persons entitled thereto. Any moneys deposited with
a Paying Agent in excess of an amount sufficient to pay the amounts then
becoming due on the Notes with respect to which such deposit was made shall,
upon Issuer Order, be paid over by such Paying Agent to the Trustee for
application in accordance with Article VIII.
Any Paying Agent other than the Trustee shall be appointed by
Issuer Order, and the Trustee is hereby appointed, and the Trustee hereby
accepts such appointment, as initial Paying Agent. The Issuer shall not appoint
any Paying Agent which is not, at the time of such appointment, a depository
institution or trust company. The Issuer will cause each Paying Agent other than
the Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee (and if the Trustee acts as Paying
Agent, it hereby so agrees), subject to the provisions of this Section, that
such Paying Agent will:
(1) allocate all sums received for payment to the Holders of
Notes on each Distribution Date among such Holders in the proportion
specified in the Distribution Date Statement, to the extent permitted
by applicable law;
(2) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(3) if such Paying Agent is not the Trustee, immediately
resign as a 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 set forth above required to be met by a Paying Agent
at the time of its appointment;
(4) if such Paying Agent is not the Trustee, 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
any Notes;
(5) if such Paying Agent is not the Trustee, 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; and
(6) comply with all requirements of the Internal Revenue Code
of 1986, as amended (or any successor or amendatory statutes), and all
regulations thereunder,
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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; provided, however, that with respect to withholding and
reporting requirements applicable to original issue discount (if any)
on the Notes, the Issuer has provided the calculations pertaining
thereto to the Trustee.
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, if other than the Trustee, 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 such 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.
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 to the Holder of such
Note shall be discharged from such trust and paid to the Issuer; and the Holder
of such Note shall thereafter, as an unsecured general creditor, look only to
the Issuer for payment thereof (but only to the extent of the amounts so paid to
the Issuer), and all liability of the Trustee or such Paying Agent with respect
to such trust money shall cease upon such payment. The Trustee may adopt and
employ, at the expense of the Issuer, any reasonable means of notification of
such repayment (including, but not limited to, mailing notice of such repayment
to Holders whose Notes have been called but have not been surrendered for
redemption or whose right to or interest in moneys due and payable but not
claimed is determinable from the records of the Trustee or any Agent, at the
last address of record for each such Holder).
SECTION 3.04. Existence of Issuer.
The Issuer will keep in full effect its existence, rights and
franchises as a statutory business trust under the laws of the State of
__________ (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Trust Fund and each instrument
or agreement included in the Trust Fund.
SECTION 3.05. Protection of Trust Fund.
(a) The Issuer will from time to time execute and deliver all
such supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance, and other
instruments, and will take such other action as may be necessary or advisable to
(i) Grant more effectively all or any portion of the Trust
Fund.
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(ii) maintain or preserve the lien of this Indenture or
carry out more effectively the purposes hereof,
(iii) perfect, publish notice of, or protect the validity
of, any Grant made or to be made by this Indenture,
(iv) enforce any of the Account Documents,
(v) preserve and defend title to the Trust Fund and the
rights of the Trustee and of the Noteholders in the Account Documents
and the other property held as part of the Trust Fund against the
claims of all persons and parties, or
(vi) pay all taxes or assessments levied or assessed upon
the Trust Fund when due.
The Issuer hereby designates the Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required pursuant to this Section 3.05; provided, however, that
such designation shall not be deemed to create a duty in the Trustee to monitor
the compliance of the Issuer with the foregoing covenants and provided, further,
that the duty of the Trustee to execute any instrument required pursuant to this
Section 3.05 shall arise only if the Trustee has knowledge of any failure of the
Issuer to comply with provisions of this Section 3.05. The Issuer shall execute
a power of attorney coupled with an interest which shall be irrevocable, and the
Issuer hereby ratifies and confirms all that the Trustee may do by virtue
thereof.
(b) Except as otherwise provided herein and in the Servicing
Agreement, the Trustee shall not remove any portion of the Trust Fund that
consists of money or is evidenced by an instrument, certificate or other writing
from the jurisdiction in which it was held at the date of the most recent
Opinion of Independent Counsel delivered pursuant to Section 3.06 (or from the
jurisdiction in which it was held as described in the Opinion of Counsel
delivered at the Closing Date pursuant to Section 2.12(l), if no Opinion of
Independent Counsel has yet been delivered pursuant to Section 3.06) unless the
Trustee shall have first received an Opinion of Independent Counsel to the
effect that the lien and security interest created by this Indenture with
respect to such property will continue to be maintained after giving effect to
such action or actions.
SECTION 3.06. Opinions as to Trust Fund.
On or before ______________ in each calendar year, beginning
in 199_, the Issuer shall furnish to the Trustee an opinion of Independent
Counsel either stating that, in the opinion of such counsel, such action has
been taken as is necessary to perfect and to maintain the lien and security
interest created by this Indenture with respect to the Trust Fund and reciting
the details of such action or stating that in the opinion of such counsel no
such action is necessary to maintain such lien and security interest. Such
opinion of Counsel shall also address any other matter reasonably requested by
the Trustee with respect to the Trust Fund and describe all such action, if any,
that will, in the opinion of such counsel, be required to be
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taken to maintain the lien and security interest of this Indenture with respect
to the Trust Fund until May 15 in the following calendar year. The Issuer shall
be required to take whatever action set forth in the Opinion of Independent
Counsel to perfect or maintain the lien and security interest in the Trust Fund
created by this Indenture.
SECTION 3.07. Performance of Obligations; Servicing Agreement.
(a) The Issuer will punctually perform and observe all of its
obligations and agreements contained in the Servicing Agreement.
(b) The Issuer will not take any action or permit any action
to be taken by others which would release any Person from any of such Person's
covenants or obligations under any of the Account Documents or under any
instrument included in the Trust Fund, or which would result in the amendment,
hypothecation, subordination, termination or discharge Of, or impair the
validity or effectiveness of, any of the Account Documents, or any such
instrument, except for such actions that are expressly provided for in the
Servicing Agreement.
(c) If the Issuer shall have knowledge of the occurrence a
Servicing Default, the Issuer shall promptly notify the Trustee thereof, and
shall specify in such notice the action, if any, the Issuer is taking in respect
of such Servicing Default. If any Servicing Default arises from the failure of
the Servicer to perform any of its duties or obligations under the Servicing
Agreement with respect to the Accounts, the Issuer may remedy such failure,
provided that if any Servicing Default arises from the failure by the Servicer
to comply with requirements imposed upon it under Section 2.12 of the Servicing
Agreement regarding advances for taxes, assessments and other charges against
the Mortgaged Property or under Section 2.13 of the Servicing Agreement with
respect to hazard insurance for the Mortgaged Properties securing the Mortgage
Loans, the Issuer shall promptly pay such taxes, assessments or other charges or
such premiums or obtain substitute insurance coverage meeting the requirements
of said Section 2.13. So long as any Servicing Default shall be continuing, the
Trustee may, and upon the direction of the Holders of Notes entitled to more
than 50% of the aggregate Voting Rights of all Classes voting together as a
single class the Trustee shall, terminate all of the rights and powers of the
Servicer under the Servicing Agreement pursuant to Section 5.01 of the Servicing
Agreement or take any other action with respect to such Servicing Default as is
permitted under said Section 5.01. Unless granted or permitted by the Holders of
Notes to the extent provided above, the Issuer may not waive any such Servicing
Default or terminate the rights and powers of the Servicer under the Servicing
Agreement.
(d) Upon any termination of the Servicer's rights and powers
pursuant to Section 5.01 of the Servicing Agreement, the Trustee shall appoint,
or shall petition a court of competent jurisdiction to appoint, a successor
servicer or upon the occurrence of a Trigger Event, the Trustee may appoint such
successor servicer (the "Successor Servicer"). The Trustee may appoint itself
Successor Servicer. Pending the appointment of a Successor Servicer as provided
above, the Trustee shall be the Successor Servicer. Upon any termination of the
Servicer's rights and powers pursuant to Section 5.01 of the Servicing Agreement
or upon the occurrence of a Trigger Event, all rights, powers, duties and
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responsibilities of the Servicer with respect to the Accounts shall vest in and
be assumed by the Successor Servicer, and the Successor Servicer shall be the
successor in all respects to the Servicer in its capacity as servicer with
respect to the Accounts under the Servicing Agreement. Upon any such
termination, the successor Servicer, or if the Trustee so elects upon a Trigger
Event, the Trustee, is hereby authorized to mail a notice to each Obligor
directing each such Obligor to mail all Monthly Payments to the Successor
Servicer or its agent at the address specified in such notice. 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, and the
Issuer shall enter into an agreement with such successor for the servicing of
the Accounts, such agreement to be substantially similar to the Servicing
Agreement or otherwise acceptable to the Trustee; provided that any such
compensation of the Successor Servicer shall not be in excess of 100% of the
Servicing Fee payable to the Servicer under the Servicing Agreement.
(e) The Issuer may enter into contracts with other Persons for
the performance of the Issuer's obligations hereunder, and performance of such
obligations by such Persons shall be deemed to be performance of such
obligations by the Issuer.
SECTION 3.08. Negative Covenants.
The Issuer will not:
(i) sell, transfer, exchange or otherwise dispose of any
portion of the Trust Fund except as expressly permitted by this
Indenture;
(ii) obtain or carry insurance relating to the Accounts
separate from that required by the Servicing Agreement, unless the
Trustee shall have the same rights with respect thereto as it has with
respect to the insurance required by the Servicing Agreement;
(iii) claim any credit on, or make any deduction from, the
principal of, or interest on, any of the Notes by reason of the payment
of any taxes levied or assessed upon any portion of the Trust Fund;
(iv) engage in any business or activity other than in
connection with, or relating to, the issuance of the Notes or the
preservation of the Trust Fund and the release of assets therefrom
pursuant to this Indenture and the Trust Agreement;
(v) dissolve or liquidate in whole or in part;
(vi) (1) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or
permit any Person to be released from any covenants or obligations
under this Indenture, except as may be expressly permitted hereby, (2)
permit any lien, charge, security interest, mortgage or other
encumbrance (other than the lien of this Indenture) to be created on or
extend to or otherwise arise upon or
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burden the Trust Fund or any part thereof or any interest therein or
the proceeds thereof, or (3) except as permitted hereby, permit the
lien of this Indenture not to constitute a valid and perfected first
priority security interest in the Trust Fund;
(vii) cause or permit any Affiliate to petition or
otherwise invoke the process of any court or government authority for
the purpose of commencing or sustaining a case against the Issuer under
any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian,
sequester or other similar official of the Issuer or any substantial
part of its property, or ordering the winding up or liquidation of the
affairs of the Issuer; or
(viii) amend the Trust Agreement without the consent of the
Trustee.
SECTION 3.09. Annual Statement as to Compliance.
On or before 120 days after the first anniversary of the
Closing Date and each subsequent anniversary date of the Closing Date, the
Issuer shall deliver to the Trustee a written statement, signed by two
Authorized Officers, stating, as to each signer thereof, that
(1) a review of the fulfillment by the Issuer during such year
of its obligations under this Indenture has been made under such
officer's supervision; and
(2) to the best of such officer's knowledge, based on such
review, the Issuer has fulfilled all its obligations under this
Indenture throughout such year or, if there has been a Default in the
fulfillment of any such obligation, specifying each such Default known
to such officer and the nature and status thereof.
SECTION 3.10. Recording of Assignments.
The Issuer shall use reasonable best efforts to record
substantially all Assignments and Trust Mortgages within 21 days of the Closing
Date and in any event all Assignments and Trust Mortgages shall be duly recorded
not later than 90 days after the date of the Grant of the related Account.
SECTION 3.11. Representations and Warranties Concerning the
Accounts.
(a) The Issuer represents and warrants to the Trustee, with
respect to each Account, that as of the Closing Date (and the Issuer shall be
deemed to have made such representations and warranties at the time of the
transfer thereof to the Trustee with respect to each new Account originated in
connection with the sale of property acquired in respect of an Account):
(i) the information set forth with respect to such
Account in the Schedule of Accounts attached hereto is true and correct
as of the date as of which such information is given;
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(ii) the related installment sale contract has been duly
executed by the parties thereto and the duties to be performed
thereunder prior to the date the first payment in connection with such
contract is due have been performed;
(iii) the Account Documents have been duly executed by the
related Obligor and the Mortgage has been duly executed by the Obligor
and, to the extent required under local law for recordation or
enforcement, properly acknowledged;
(iv) the Mortgage has been properly recorded as required
by law. The Mortgage constitutes a valid first priority lien upon and
secure title to the real property and improvements thereon described
therein, which include a single family detached dwelling, and such
Mortgage and the Account Note secured thereby are fully enforceable in
accordance with their terms except as enforceability thereof may be
limited by bankruptcy, insolvency, moratorium and other laws affecting
creditors, rights generally and by general principles of equity
(whether applied in a proceeding in law or at equity);
(v) the Issuer is the sole owner of each Account and has
good title to such Account and full right and authority to transfer
such Account and to Grant such Account to the Trustee and, upon
delivery of the related Account Documents to the Trustee, the Trustee
will have a valid and perfected lien or security interest in such
Account;
(vi) all costs, fees, intangible, documentary and
recording taxes and expenses incurred in making, closing, and recording
each Account and in connection with the issuance of the Notes have been
paid;
(vii) no part of the Mortgaged Property purporting to
secure any Account Note has been, or shall have been, released from the
lien or security title of the Mortgage securing such Account Note
except for Mortgaged Property securing Account Notes which have been
prepaid in full between the Cut-Off Date and the Closing Date, the
amount of such prepayments received more than five days prior to the
Closing Date to be deposited in the Collection Account on or before the
Closing Date;
(viii) except to the extent permitted by the Servicing
Agreement, no term or provision of any Account has been or will be
altered, changed or modified in any way by the Servicer or the Issuer
without the consent of the Trustee;
(ix) the Grantor and the Issuer acquired title to the
Accounts in good faith, for value and without notice of any adverse
claim;
(x) the Account Notes evidence accounts bearing a fixed
finance charge rate and fully amortizing level monthly payments. Each
Account Note has an original term to maturity not in excess of 30
years;
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(xi) as of the Closing Date, there is no right of
rescission, setoff, defense or counterclaim to any Account Note or
Mortgage, including both the obligation of the Obligor to pay the
unpaid cash price or finance charge on such Account Note and the
defense of usury; furthermore, neither the operation of any of the
terms of the Account Note and the Mortgage nor the exercise of any
right thereunder will render the Account Note or the Mortgage
unenforceable, in whole or in part, or subject such Account Note or
Mortgage to any right of rescission, setoff, counterclaim or defense,
including the defense of usury, and no such right of rescission,
setoff, counterclaim or defense has been asserted with respect thereto;
(xii) there are no mechanics, liens or claims for work,
labor or material (and to the best of the Issuer's knowledge, no rights
or claims are outstanding that under law could give rise to such lien)
affecting any Mortgaged Property which are or may be a lien prior to,
or equal with, the lien of such Mortgage;
(xiii) each Account Note at origination complied in all
material respects with applicable local, state and federal laws,
including, without limitation, usury, equal credit opportunity, real
estate settlement procedures, truth-in-lending and disclosure laws, and
consummation of the transactions contemplated by the Purchase and Sale
Agreement and hereby will not involve the violation of any such laws;
(xiv) with respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as such,
is properly designated, serving and named in such Mortgage;
(xv) there has been no fraud, dishonesty,
misrepresentation or negligence on the part of the originator in
connection with the origination of any Account Note or in connection
with the sale of the related Account; and
(xvi) to the best knowledge of the Issuer, except Mortgaged
Properties for which Insurance Proceeds are available, each Mortgaged
Property is in good condition and free of damage which materially and
adversely affects the value thereof.
(b) If any of the representations, warranties or covenants
with respect to any Account set forth in this Section 3.11 are found to be
incorrect as of the time made in any respect which materially and adversely
affects the interest of the Trustee or the Noteholders in the Account, the
Issuer or the Servicer shall notify the Trustee immediately after obtaining
knowledge thereof, and the Issuer shall use its best efforts to eliminate or
otherwise cure the circumstances or conditions in respect of which such
representation, warranty or covenant was incorrect as of the time made within 90
days of such notice to the Trustee. If such breach is not or cannot be cured
within such 90-day period or, with the prior written consent of a Responsible
Officer of the Trustee, such longer period as specified in such consent, the
Issuer shall either (i) deposit in the Collection Account an amount equal to
100% of the then current Economic Balance of the affected Account (a "Defective
Account"), at which time the Defective Account shall be released from the lien
of the Indenture or (ii) remove such Account from the Trust Fund and substitute
one or more Qualified Substitute Accounts (in which case
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the removed Account shall become a "Deleted Account"). The Issuer shall promptly
reimburse the Servicer and the Trustee for any reasonable expenses (including
without limitation reasonable attorney's fees) incurred by the Servicer and the
Trustee, respectively, in respect of any such breach.
As to any Deleted Account for which the Issuer substitutes a
Qualified Substitute Account or Qualified Substitute Accounts, the Issuer shall
effect such substitution by delivery to the Trustee of the Account Notes for
such Qualified Substitute Account or Qualified Substitute Accounts and such
other Account Documents related thereto, with each such Account Note endorsed to
the order of the Issuer, without recourse, and endorsed by the Issuer in blank
or to the order of the Trustee, without recourse. Monthly Payments due with
respect to Qualified Substitute Accounts in the month of substitution are not
part of the Trust Fund and will be retained by the Issuer. Available Funds will
include the Monthly Payment due on any Deleted Account in the month of
substitution, and the Issuer shall deposit such amount in the Collection Account
if received by it subsequent to the month of substitution. The Issuer shall be
entitled to receive all amounts due subsequent to the month of substitution in
respect of such Deleted Account. The Issuer shall give or cause to be given
written notice to the Trustee and the Rating Agencies that such substitution has
taken place. Upon such substitution, such Qualified Substitute Account or
Qualified Substitute Accounts shall be subject to the terms of this Indenture in
all respects, and the Issuer shall be deemed to have made with respect to such
Qualified Substitute Account or Qualified Substitute Accounts, as of the date of
substitution, the representations and warranties set forth in this Section 3.11.
The Trustee shall at the direction of the Issuer immediately effect the release
of the lien of this Indenture with respect to such Deleted Account, the form of
the instruments effecting such release being specified in such direction.
For any month in which the Issuer substitutes one or more
Qualified Substitute Accounts for one or more Deleted Accounts, the Issuer will
determine the amount (if any) by which the aggregate outstanding Economic
Balance of all such Qualified Substitute Accounts as of the date of substitution
is less than the aggregate outstanding Economic Balance of all such Deleted
Accounts. On the date of such substitution, the Issuer will deposit from its own
funds into the Collection Account an amount equal to the amount of such
shortfall, if any, without reimbursement therefor.
It is understood and agreed that the obligations of the Issuer
set forth in this Section 3.11(b) to cure, substitute for or deposit funds in
the Collection Account in connection with an Account constitute the sole
remedies available to the Noteholders or to the Trustee on their behalf
respecting a breach of the representations and warranties set forth in Section
3.11(a).
SECTION 3.12. Trustee's Review of Account Documents.
(a) The Trustee agrees, for the benefit of the holders of the
Notes, to review within 90 days after the Closing Date (or other date of
transfer to the Trust of an Account or substitution of a Qualified Substitute
Account), the Account Documents delivered to it on or
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prior to the Closing Date (or other date of transfer to the Trust of an Account
or substitution of a Qualified Substitute Account) in connection with the Grant
of the Accounts listed on the Schedule of Accounts as security for the Notes.
Such review shall be limited to a determination that all documents referred to
in the definition of the term Account Documents have been delivered with respect
to each such Account (other than the documents related to (i) any Account so
listed which has been subject to a Full Prepayment, the proceeds of which have
been deposited in the Collection Account in lieu of delivery of the applicable
Account Documents and (ii) any Account with respect to which the related
Mortgaged Property was foreclosed, repossessed or otherwise converted subsequent
to the Cut-Off Date and prior to the Closing Date or with respect to which
foreclosure proceedings have been commenced and the related Account Documents
are required in connection with the prosecution of such foreclosure proceedings
and the Issuer has delivered a trust receipt called for by Section 3.13 (c) ),
that all such documents have been executed, and that all such documents relate
to the Accounts listed on the Schedule of Accounts; provided, however, that with
respect to the review made of the Accounts in connection with the Closing Date,
assumption or substitution agreements shall not be considered Account Documents.
In performing such review, the Trustee may rely upon the purported genuineness
and due execution of any such document and on the purported genuineness of any
signature thereon.
(b) If any Account Document is defective in any material
respect which may materially and adversely affect the value of the related
Account, the priority of the related Mortgage or the interest of the Trustee or
the Noteholders in such Account or if any document required to be delivered to
the Trustee has not been delivered or if any documents so delivered does not
relate to an Account listed on the Schedule of Accounts, the Trustee shall
notify the Issuer and the Servicer immediately after obtaining knowledge
thereof. Within 90 days of the earlier of discovery by or notice to the Issuer
that any Account Document is missing or defective and such omission or defect
materially and adversely affects the interest of the Noteholders in an Account,
the Issuer is required to use its best efforts to cure such omission or defect.
If such omission or defect is not or cannot be cured within such 90-day period
or, with the prior written consent of a Responsible Officer of the Trustee, such
longer period as specified in such consent, the Issuer shall either (i) deposit
in the Collection Account an amount equal to 100% of the then current Economic
Balance of the affected Account (a "Defective Account"), at which time the
Defective Account shall be released from the lien of the Indenture or (ii)
remove such Account from the Trust Fund and substitute one or more Qualified
Substitute Accounts (in which case the removed Account shall become a "Deleted
Account"). The Issuer shall promptly reimburse the Servicer and the Trustee for
any reasonable expenses (including without limitation reasonable attorney's
fees) incurred by the Servicer and the Trustee, respectively, in respect of any
such defect or omission; provided, however, except for the review by the Trustee
pursuant to Section 3.12(a), the foregoing shall not impose an obligation on the
Trustee to discover defects in the Account Documents or to ascertain the
priority of the related Mortgage.
As to any Deleted Account for which the Issuer substitutes a
Qualified Substitute Account or Qualified Substitute Accounts, the Issuer shall
effect such substitution by delivery to the Trustee of the Account Note(s) for
such Qualified Substitute Account or
▇▇▇-▇▇
▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Accounts and such other Account Documents related thereto,
with each such Account Note endorsed to the order of the Issuer, without
recourse, and endorsed by the Issuer in blank or to the order of the Trustee,
without recourse. Monthly Payments due with respect to Qualified Substitute
Accounts in the month of substitution are not part of the Trust Fund and will be
retained by the Issuer. Available Funds will include the Monthly Payment due on
any Deleted Account in the month of substitution, and the Issuer shall deposit
such amount in the Collection Account if received by it subsequent to the month
of substitution. The Issuer shall be entitled to receive all amounts due
subsequent to the month of substitution in respect of such Deleted Account. The
Issuer shall give or cause to be given written notice to the Trustee and the
Rating Agencies that such substitution has taken place. Upon such substitution,
such Qualified Substitute Account or Qualified Substitute Accounts shall be
subject to the terms of this Indenture in all respects, and the Issuer shall be
deemed to have made with respect to such Qualified Substitute Account or
Qualified Substitute Accounts, as of the date of substitution, the
representations and warranties set forth in Section 3.11. The Trustee shall at
the direction of the Issuer immediately effect the release of the lien of this
Indenture with respect to such Deleted Account, the form of the instruments
effecting such release being specified in such direction.
For any month in which the Issuer substitutes one or more
Qualified Substitute Accounts for one or more Deleted Accounts, the Issuer will
determine the amount (if any) by which the aggregate outstanding Economic
Balance of all such Qualified Substitute Accounts as of the date of substitution
is less than the aggregate outstanding Economic Balance of all such Deleted
Accounts. On the date of such substitution, the Issuer will deposit from its own
funds into the Collection Account an amount equal to the amount of such
shortfall, if any, without reimbursement therefor.
It is understood and agreed that the obligations of the Issuer
set forth in this Section 3.12(b) to cure, substitute for or deposit funds in
the Collection Account in connection with an Account constitute the sole
remedies available to the Noteholders or to the Trustee on their behalf
respecting an omission or defect set forth in Section 3.12(a).
SECTION 3.13. Trust Fund; Account Documents.
(a) When required by the provisions of this Indenture, the
Trustee 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 which are not inconsistent with the provisions of this Indenture.
No party relying upon an instrument executed by the Trustee as provided in this
Article III shall be bound to ascertain the Trustee's authority, inquire into
the satisfaction of any conditions precedent or see to the application of any
moneys.
(b) In order to facilitate the servicing of the Accounts by
the Servicer, the Servicer is hereby authorized in the name and on behalf of the
Trustee and the Issuer, to execute assumption agreements, substitution
agreements, and instruments of satisfaction or cancellation, or of partial or
full release or discharge, and other comparable instruments with respect to the
Accounts and with respect to the Mortgaged Properties subject to the mortgages
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(and the Trustee shall execute any such documents on request of the Servicer),
subject to the obligations of the Servicer under the Servicing Agreement. If
from time to time the Servicer shall deliver to the Trustee copies of any
written assurance, assumption agreement or substitution agreement or other
similar agreement pursuant to Section 2.10 of the Servicing Agreement, the
Trustee shall check that each of such documents purports to be an original
executed copy and, if so, shall file such documents with the related Account
Documents. If any such documents submitted by the Servicer do not meet the above
qualifications, such documents shall promptly be returned by the Trustee to the
Servicer, with a direction to the Servicer to forward the correct documentation.
(c) Upon Issuer Request accompanied by an Officers'
Certificate of the Servicer pursuant to Section 2.15 of the Servicing Agreement
to the effect that an Account has been the subject of a Full Prepayment or that
all Liquidation Proceeds which have been determined by the Servicer in its
reasonable judgment to be finally recoverable, have been recovered and upon
deposit to the Holding Account of such final Monthly Payment, an amount that
satisfies the definition of Full Prepayment with respect to such Account or, if
applicable, Liquidation Proceeds, the Trustee shall promptly release the related
Account Documents to or upon the order of the Issuer, along with such documents
as the Servicer or the Obligor may request to evidence satisfaction and
discharge of such Account. If from time to time and as appropriate for the
servicing or foreclosure of any Account, the Servicer requests the Trustee to
release the related Account Documents and delivers to the Trustee a trust
receipt reasonably satisfactory to the Trustee and signed by a Servicing
Officer, the Trustee shall release the related Account Documents to the
Servicer. If such Account shall be liquidated and the Trustee receives a
certificate from the Servicer as provided above, then, upon request of the
Issuer, the Trustee shall release the trust receipt to or upon the order of the
Issuer.
(d) The Trustee shall, at such time as there are no Notes
outstanding, release all of the Trust Fund to the Issuer (other than any cash
held for the payment of the Notes pursuant to Section 3.03 or 4.01), subject,
however, to the rights of the Trustee under Section 6.07.
SECTION 3.14. Amendments to Servicing Agreement.
The Trustee may enter into any amendment or supplement to the
Servicing Agreement only in accordance with Section ____ of the Servicing
Agreement; provided, however, at any time, the Trustee may, without the consent
of the Noteholders, enter into an amendment to the Servicing Agreement modifying
the repossession, foreclosure and liquidation procedures if such modifications
are likely to minimize payments in connection with any filing or recording
required in any jurisdiction where any Mortgaged Properties are located. The
Trustee may, in its discretion, decline to enter into or consent to any such
supplement or amendment if its own rights, duties or immunities shall be
adversely affected.
SECTION 3.15. Servicer as Agent and Bailee of Trustee.
In order to facilitate the servicing of the Accounts by the
Servicer, the Servicer shall retain, in accordance with the provisions of the
Servicing Agreement and this Indenture,
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the moneys to be deposited in each Servicing Account. Solely for purposes of
perfection under Section 9-305 of the Uniform Commercial Code of the state in
which such property is held by the Servicer, the Trustee hereby acknowledges
that the Servicer is acting as agent and bailee of the Trustee in holding such
moneys pursuant to Section ____ of the Servicing Agreement, as well as its agent
and bailee in holding any Account Documents released to the Servicer pursuant to
Section 3.13 (c), and any other items constituting a part of the Trust Fund
which from time to time come into the possession of the Servicer. It is intended
that, by the Servicer's acceptance of such agency pursuant to Section ____ of
the Servicing Agreement, the Trustee, as a secured party, will be deemed to have
possession of such Account Documents, such moneys and such other items for
purposes of Section 9-305 of the Uniform Commercial Code of the state in which
such property is held by the Servicer.
SECTION 3.16. Investment Company Act.
The Issuer shall not become an "investment company" as defined
in the Investment Company Act of 1940, as amended (or any successor or
amendatory statute), and the rules and regulations thereunder (taking into
account not only the general definition of the term "investment company" but
also any available exceptions to such general definition); provided, however,
that the Issuer shall be in compliance with this Section 3.16 if it shall have
obtained an order exempting it from regulation as an "investment company" so
long as it is in compliance with the conditions imposed in such order.
SECTION 3.17. Business Activity.
(a) The Issuer shall furnish to the Trustee copies of the form
of each proposed amendment to the Trust Agreement at least 60 days prior to the
proposed date of adoption of any such proposed amendment.
(b) The Issuer will at all times hold itself out to the
public, including creditors of any entity owning more than a 50% undivided
interest in the Issuer (hereinafter referred to as a Majority Owner" of the
Issuer), under the Issuer' s own name and as a separate and distinct entity from
the Grantor or any of its Affiliates.
(c) The Issuer will at all times be responsible for the
payment of all its obligations and indebtedness, will at all times maintain a
business office, records, books of account, and funds separate from its Majority
Owner and will observe all customary formalities of independent existence.
(d) To the extent such compliance involves questions of law,
the Issuer shall be deemed in compliance with the requirements of any provision
of this Section 3.17 if it is acting in accordance with an opinion of Counsel as
to such requirements.
(e) The Issuer represents, warrants and covenants that its
chief executive office is and shall be located in the State of Delaware.
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SECTION 3.18. Liability of Owner Trustee.
It is expressly understood and agreed by the parties hereto
that (a) this Indenture is executed and delivered by _______________________,
not individually or personally but solely as owner Trustee under the Trust
Agreement, in the exercise of the powers and authority conferred and vested in
it as the Owner Trustee, (b) each of the representations, undertakings and
agreements herein made on the part of the Issuer is made and intended not as
personal representations, undertakings and agreements by
________________________ but is made and intended for the purpose for binding
only the Trust Fund, (c) nothing herein contained shall be construed as creating
any liability on ________________________, individually or personally, to
perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the Trustee and the Noteholders and
by any Person claiming by, through or under the Trustee and the Noteholders and
(d) under no circumstances shall _______________________ be personally liable
for the payment of any indebtedness or expenses of the Issuer or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Issuer under this Indenture.
SECTION 3.19. Exculpation of the Trustee.
By entering into this Indenture and agreeing to perform the
duties of the Trustee as set forth herein, the Trustee makes no implied or
express representation or warranty to the Noteholders with respect to the
sufficiency or the adequacy in any respect whatsoever of the terms of this
Indenture and the documents executed in connection herewith. Under no
circumstances shall the Trustee have any liability of any kind whatsoever for
the failure of any Noteholder adequately to review and evaluate to the full
satisfaction of such Noteholder the terms and provisions of this Indenture, the
Notes, the Servicing Agreement, and the other documents executed in connection
with this Indenture. The Trustee shall in no way be liable for the decision of
any Noteholder to purchase any Notes.
SECTION 3.20. Owner Trustee Agrees Not to File for Bankruptcy
of the Issuer.
Prior to one year after payment in full of all the Notes, the
Owner Trustee will not cause or consent to the filing of a petition in
bankruptcy against the Issuer for any reason without the written consent of all
the Noteholders.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
(a) Whenever the following conditions shall have been
satisfied:
(1) either
(A) all Notes theretofore authenticated and delivered
(other than (i) Notes which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 2.08, and (ii) Notes for whose payment money has
theretofore been deposited in trust and thereafter repaid to
the Issuer, 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
(i) have become due and payable, or
(ii) will become due and payable at the
Maturity of the final installment of the principal
thereof within one year, or
(iii) are to be called for redemption
within one year under irrevocable 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 (i) (ii) or (iii)
above, has deposited or caused to be deposited with the
Trustee, in trust for such purpose, an amount of cash (which
cash, in the case of clauses (ii) and (iii) above must
constitute Eligible Moneys) sufficient to pay and discharge
the entire indebtedness on such Notes not theretofore
delivered to the Trustee for cancellation, for principal and
interest to the Maturity of their entire unpaid principal
amount or the applicable Redemption Date, as the case may be;
(2) the Issuer has paid or caused to be paid all
other sums payable hereunder by the Issuer; and
(3) the Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating
that all conditions precedent herein provided for the
satisfaction and discharge of this Indenture have been
complied with and covering such other matters as the Trustee
may reasonably request;
then, upon Issuer Request this Indenture and the lien, rights and interests
created hereby and thereby shall cease to be of further effect, and the Trustee
and each co-trustee and separate
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trustee, if any, then acting as such hereunder shall, at the expense of the
Issuer, execute and deliver all such instruments as may be necessary to
acknowledge the satisfaction and discharge of this Indenture and shall pay, or
assign or transfer and deliver, to the Issuer or upon Issuer Order all cash,
securities and other property held by it as part of the Trust Fund remaining
after satisfaction of the conditions set forth in clauses (1) and (2) above.
(b) Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer to the Trustee under Section 6.07, the
obligations of the Trustee to the Issuer and to the Holders of Notes under
Section 3.03, the obligations of the Trustee to the Holders of Notes under
Section 4.02 and the provisions of Article II with respect to lost, stolen,
destroyed or mutilated Notes, registration of transfers of Notes, and rights to
receive payments of principal of and interest on the Notes shall survive and the
provisions of Section 5.06 as they relate to clause (a) of Section 5.06 shall
continue for one year after such satisfaction and discharge.
SECTION 4.02. Application of Trust Money.
All money deposited with the Trustee pursuant to Sections 3.03
and 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 Persons entitled
thereto, of the principal and interest for whose payment such money has been
deposited with the Trustee.
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ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01. Event 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):
(1) (i) there shall occur a default in the payment of any
amount due under the Notes by the Indenture Maturity Date or (ii) there
shall occur a failure to apply funds in the Collection Account in
accordance with Section 8.02 (c) and such failure shall continue for a
period of two days or (iii) there shall occur a default in the payment
when due of interest or principal on any Class of Notes and such
default shall continue for a period of 30 days (provided that neither
the reimbursement of any Realized Loss Amounts nor interest on any
Realized Loss Amounts in respect of any Class of Notes will be deemed
due unless there exist Available Funds sufficient to pay such amount
and all prior amounts under the Available Funds Allocation) or (iv)
there shall occur a failure to pay the Outstanding Principal Balance of
each Class of Notes on the Indenture Maturity Date;
(2) any representation or warranty of the Asset Seller in the
Contract Sale Agreement assigned by the Grantor in the Purchase and
Sale Agreement, or any representation or warranty by the Issuer herein,
is incorrect and such breach may have a material adverse effect on the
Issuer or the Noteholders and is not cured, a Qualified Substitute
Account is not substituted for the related Account or the related
Account is not repurchased by the Asset Seller and in either case
released from the lien of this Indenture, within 60 days after there
shall have been given, by registered or certified mail to the Grantor
or the Issuer by the Trustee or to the Grantor, the Issuer and the
Trustee by the Holders of Notes entitled to at least 25% of the
aggregate Voting Rights of all Classes voting together as a single
class, a written notice specifying such Default and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder;
(3) the Grantor or the Issuer shall breach, or default in the
due observance or performance of, any of its other covenants in this
Indenture, such Default shall continue for a period of 60 days after
there shall have been given, by registered or certified mail, to the
Grantor or the Issuer by the Trustee or to the Grantor, the Issuer and
the Trustee by the Holders of Notes entitled to at least 25% of the
aggregate Voting Rights of all Classes voting together as a single
class, a written notice specifying such Default and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder;
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(4) there shall occur the entry of a decree or order for
relief by a court having jurisdiction in respect of the Issuer in an
involuntary case under the federal bankruptcy laws, as now or hereafter
in effect, or any other present or future federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of
the Issuer or of any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Issuer and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(5) there shall occur the commencement by the Issuer of a
voluntary case under the federal bankruptcy laws, as now or hereafter
in effect, or any other present or future federal or state bankruptcy,
insolvency or similar law, or the consent by the Issuer to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of
the Issuer or of any substantial part of its property or the making by
the Issuer of an 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 corporate action by the Issuer in furtherance of any of
the foregoing.
Notwithstanding the foregoing, on or prior to the Indenture
Maturity Date, any of the events described in this Section 5.01 will not be an
Event of Default (i) in respect of the Class A-2 Notes until the Class A-1 Notes
have been paid in full, (ii) in respect of the Class A-3 Notes until the Class
A-1 Notes and Class A-2 Notes have been paid in full and (iii) in respect of the
Class A-4 Notes until the Class A-1 Notes, Class A-2 Notes and Class A-3 Notes
have been paid in full.
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment.
Prior to the Indenture Maturity Date, upon the occurrence of
an Event of Default, the Trustee or the Holders entitled to not less than a
majority of the Voting Rights of all Classes of Notes voting together as a
single class may declare the principal of the Notes to be immediately due and
payable by a notice in writing to the Issuer (and to the Trustee if given by
such Noteholders).
On or after the Indenture Maturity Date, if an Event of
Default occurs or shall have occurred, the Trustee shall declare the principal
of the Notes to be immediately due and payable by a notice in writing to the
Issuer. Upon such declaration, the Trustee may, or at the direction or with the
consent of the Holders entitled to at least a majority of the Voting Rights of
all Classes of Notes voting together as a single class shall pursue one or more
remedies subject to, and in accordance with the terms hereof, including without
limitation, selling the Accounts at one or more public or private sales.
Notwithstanding the acceleration of the Maturity of the Notes and subject to
Section 5.05(a), the Trustee may refrain from selling the Accounts and continue
to apply all amounts received on the Accounts to payments due on the Notes in
accordance with their terms if the Trustee determines that anticipated
collections on the Accounts would be sufficient to pay all the Classes of Notes
then Outstanding. In such
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case, the Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking firm of national reputation as to the feasibility
of such proposed action and as to the value of such Trust Estate which opinion
shall be conclusive evidence as to such value in any proceeding seeking to
recover a deficiency from the Issuer.
Notwithstanding the foregoing, the Trustee may not declare the
Notes to be due and payable pursuant to this Section 5.02 as a result of an
Event of Default arising solely from the Issuer's failure to perform any of its
agreements set forth in Section 6.07.
At any time after such a declaration of acceleration of
Maturity of the Notes has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders entitled to at least a majority of the aggregate Voting
Rights of all Classes of Notes voting together as a single class (in the event
of the occurrence of an Event of Default on or after the Indenture Maturity
Date), as the case may be, by written notice to the Issuer and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay
(A) all payments of principal of and interest on all
Notes and all other amounts which would then be due hereunder
or upon such Notes if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default, other than the non-payment of the
principal of Notes which have become due solely by such acceleration,
have been cured or waived as provided in Section 5.15.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Issuer covenants that if an Event of Default shall occur
and be continuing, the Issuer will pay to the Trustee for the benefit of the
Holders of the Notes:
(1) (A) if the Notes have not been declared due and payable,
the whole amount then due and payable on the Notes in respect of
principal, including Realized Loss Amounts; or
(B) if the Notes have been declared due and payable and such
declaration and its consequences have not been rescinded and annulled,
the principal balance of all Outstanding Notes, including Realized Loss
Amounts;
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(2) (A) if the Notes have not been declared due and payable,
the whole amount then due and payable on the Notes in respect of
interest, including interest on any overdue installments of principal
at the applicable Note Interest Rate, and, to the extent payment of
such interest on interest shall be legally enforceable, interest on any
overdue installments of interest at the applicable Note Interest Rate
and interest due and payable with respect to unreimbursed Realized Loss
Amounts; or
(B) if the Notes have been declared due and payable and such
declaration and its consequences have not been rescinded and annulled,
(i) with respect to the period prior to the date of such declaration,
accrued interest to the date of such declaration, at the applicable
Note Interest Rate, on the Outstanding Principal Balance of each Note
and interest to the date of such declaration at the applicable Note
Interest Rate, on any installment of interest on each Note that was not
paid when due, but only to the extent that payment of such interest on
interest shall be legally enforceable and interest to the date of such
declaration at the applicable Note Interest Rate, on any previously
unreimbursed Realized Loss Amounts and (ii) with respect to the period
from and including the date of such declaration, interest to the date
such payment is made, at the applicable Note Interest Rate, on the
Outstanding Principal Balance of each Note and on any installment of
interest on such Note that was not paid when due, but only to the
extent that payment of such interest on interest shall be legally
enforceable and on any previously unreimbursed Realized Loss Amounts;
and
(3) in addition thereto, such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agent and counsel.
If the Issuer fails to pay such amounts forthwith upon such
demand, or in any event if an Event of Default under clause (1) of Section 5.01
shall have occurred, the Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Noteholders by such appropriate Proceedings as the Trustee shall deem
most effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or enforce any other proper remedy,
including, without limitation, instituting a Proceeding prior to any declaration
of acceleration of the Maturity of the Notes for the collection of all amounts
then due and unpaid on the Notes, prosecuting such Proceeding to final judgment
or decree, enforcing the same against the Trust Fund and collecting out of the
property, wherever situated, of the Issuer the moneys adjudged or decreed to be
payable in the manner provided by law, provided, however, that neither the
Trustee nor any owner of any equity interest in the Issuer, nor any of their
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respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for any amounts payable under
the Notes or this Indenture.
SECTION 5.04. Remedies.
If an Event of Default shall have occurred and be continuing
and the Notes have been declared due and payable and such declaration and its
consequences have not been rescinded and annulled, the Trustee may (subject to
Sections 5.02, 5.05 and 5.18, to the extent applicable) do one or more of the
following:
(a) institute Proceedings for the collection of all amounts
then payable on the Notes, or under this Indenture in respect of Notes,
whether such amounts have become due and payable by declaration of
acceleration or otherwise and all amounts payable under the Servicing
Agreement, enforce any judgment obtained, and collect from the Issuer
moneys adjudged due;
(b) sell the Trust Fund or any portion thereof or rights or
interest therein, at one or more public or private Sales called and
conducted in any manner permitted by law;
(c) file or record all Assignments that have not previously
been recorded;
(d) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture; and
(e) exercise any remedies of a secured party under the Uniform
Commercial Code and take any other appropriate action to protect and
enforce the rights and remedies of the Trustee or the Holders of the
Notes hereunder.
In the event the Trustee takes any of the foregoing actions to
protect the Noteholder's rights or interests under the Indenture, the Trustee
shall be indemnified from the Trust Fund against any loss, liability or expense
arising out of or in connection with any such actions.
SECTION 5.05. Preservation of Trust Fund.
(a) If the Notes have been declared due and payable following
an Event of Default other than an Event of Default specified in Section
5.01(1)(iii), and such declaration and its consequences have not been rescinded
and annulled, the Trustee shall apply all Remittances and other amounts
receivable with respect to the Trust Fund, first, to the Issuer Expenses that
consist of the fees and expenses of, and other amounts payable to, the Owner
Trustee, the Trustee and the Successor Servicer and the Servicing Fee and then
to the payment of the principal of and interest on the Notes as and when such
principal and interest would have become due pursuant to the terms hereof and of
the Notes and to such other purposes as are specified in this Indenture, with
all such Remittances and other amounts being applied as if there had not been a
declaration of acceleration of the Maturity of the Notes, unless:
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(i) the Trustee shall have determined that the proceeds
of the sale or liquidation of the Trust Fund are sufficient to provide
the funds required to pay the principal of and accrued interest on the
Classes of Notes;
(ii) all the Holders of the Notes shall have directed the
Trustee to sell the Trust Fund securing such Notes; or
(iii) the Trustee shall have determined that the
Remittances and other amounts receivable with respect to the Trust
Estate are not sufficient to provide the funds required to pay the
principal of and interest on the Classes of Notes and the Trustee
obtains the consent of at least 66 2/3% of the Voting Rights of all
Classes of Notes voting together as a single class to the sale.
(b) The Trustee may in its sole discretion rely upon an
opinion of an Independent investment banking firm of national reputation as to
the feasibility of any action proposed to be taken in accordance with subsection
(a) of this Section 5.05 and as to the sufficiency of the Remittances and other
amounts receivable with respect to the Trust Fund to make the required payments
of principal of and interest on the Notes, which opinion shall be conclusive
evidence as to such feasibility or sufficiency. Such an opinion may, but need
not, be obtained by the Trustee in its sole discretion or may be delivered to
the Trustee by an Independent investment banking firm of national reputation
engaged by the Issuer to prepare and deliver such opinion.
(c) Pending determination by the Trustee as to whether the
criteria set forth in subsection (a) of this Section 5.05 are satisfied, all
Remittances and other amounts receivable with respect to the Trust Fund shall be
applied first to payment of Issuer Expenses that consist of the fees and
expenses of, and other amounts payable to, the Owner Trustee, the Trustee and
the Successor Servicer, and the Servicing Fee and then pursuant to Section
8.02(c) to the payment of the principal of and interest on the Notes as and when
such principal and interest would have become due pursuant to the terms hereof
and of the Notes if there had not been a declaration of acceleration of the
Maturity of the Notes. The Trustee shall make its determination whether the
criteria set forth in subsection (a) of this Section 5.05 can be satisfied as
promptly as practicable following any declaration of acceleration of the
Maturity of the Notes.
(d) If the Trustee determines that the criteria set forth in
subsection (a) of this Section 5.05 are not or cannot be satisfied, then all
amounts collected by the Trustee pursuant to this Section 5.05 or otherwise
shall be applied in accordance with Section 5.08.
SECTION 5.06. Trustee May File Proofs of Claim.
(a) The Trustee shall promptly notify the Noteholders of (i)
the commencement of any of the events or proceedings (individually, an
"Insolvency Proceeding") described in Section 5.01(4) or (5) hereof with respect
to the Issuer and (ii) the making of any claim in connection with any Insolvency
Proceeding seeking the avoidance as a preferential transfer (a "Preference
Claim") of any payment of principal of, or interest on, the Notes. The
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obligation of the Trustee to notify the Noteholders of any Insolvency Proceeding
or Preference Claims is expressly limited to such matters of which the Trustee
has actual knowledge. The Trustee, on its behalf and on behalf of the Holders,
may, at any time during the continuation of an Insolvency Proceeding, direct all
matters relating to such Insolvency Proceeding, including, without limitation,
(i) all matters relating to any Preference Claim, (ii) the direction of any
appeal of any order relating to any Preference Claim and (iii) the posting of
any surety, supersedeas or performance bond pending any such appeal.
(b) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, composition or other
judicial Proceeding relative to the Issuer or any other obligor upon any of the
Notes or the property of the Issuer or of such other obligor or their creditors,
the Trustee (irrespective of whether the Notes shall then be due and payable as
therein expressed or by declaration or otherwise) shall be entitled and
empowered, by intervention in such Proceeding or otherwise, to
(i) file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Noteholders allowed in such
Proceeding, and
(ii) collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same,
and any receiver, assignee, trustee, liquidator, or sequestrator (or other
similar official) in any such Proceeding is hereby authorized by each Noteholder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Noteholders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment, or composition
affecting any of the Notes or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Noteholder in any such
Proceeding.
SECTION 5.07. Trustee May Enforce Claims Without Possession of
Notes.
All rights of action and claims under this Indenture or any of
the Notes may be prosecuted and enforced by the Trustee without the possession
of any of the Notes or the production thereof in any Proceeding relating
thereto, and any such Proceeding instituted by the Trustee in accordance with
Section 5.03 shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the benefit of the Holders of the
Notes in the priority specified herein. Any surplus shall be available, in
accordance with
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Section 5.08, for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 5.08. Application of Money Collected.
If the Notes have been declared due and payable following an
Event of Default and such declaration and its consequences have not been
rescinded and annulled, any money collected by the Trustee with respect to the
Notes pursuant to this Article or otherwise and any moneys which may then be
held or thereafter received by the Trustee as security for the Notes shall
(unless such money is being applied in accordance with Section 5.05(a)) be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of the entire amount due on account of principal of
and interest on any Notes, upon presentation and surrender thereof:
First: To the payment of Issuer Expenses that consist of the
fees and expenses of, and other amounts payable to, the Owner Trustee,
the Trustee and the Successor Servicer and the Servicing Fee;
Second: To the holders of the Class A-1 Notes, in an amount up
to the Interest Accrual Amount thereof;
Third: To the holders of the Class A-1 Notes, in an amount up
to all unreimbursed Class Interest Shortfalls related thereto, together
with accrued interest thereon;
Fourth: To the holders of the Class A-2 Notes, in an amount up
to the Interest Accrual Amount thereof;
Fifth: To the holders of the Class A-2 Notes, in an amount up
to all unreimbursed Class Interest Shortfalls related thereto, together
with accrued interest thereon;
Sixth: To the holders of the Class A-3 Notes, in an amount up
to the Interest Accrual Amount thereof;
Seventh: To the holders of the Class A-3 Notes, in an amount
up to all unreimbursed Class Interest Shortfalls related thereto,
together with accrued interest thereon;
Eighth: To the holders of the Class A-4 Notes, in an amount up
to the Interest Accrual Amount thereof;
Ninth: To the holders of the Class A-4 Notes, in an amount up
to all unreimbursed Class Interest Shortfalls related thereto, together
with accrued interest thereon;
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Tenth: To the holders of the Class A-1 Notes, in an amount up
to the aggregate Class A-1 Outstanding Principal Balance of the Class
A-1 Notes, based upon their respective Class A-1 Outstanding Principal
Balances, ratably, without preference or priority of any kind;
Eleventh: To the holders of the Class A-1 Notes, accrued and
unpaid interest at the related Note Interest Rate on the amount of any
unreimbursed Class A-1 Realized Loss Amounts previously allocated to
the Class A-1 Notes (provided that any such amount will not be due and
payable unless there are available monies collected, held or received
by the Trustee sufficient to pay such amount and all prior amounts
under this Section 5.08);
Twelfth: To the holders of the Class A-1 Notes, in an amount
up to the amount of any unreimbursed Class A-1 Realized Loss Amounts
previously allocated thereto (provided that any such amount will not be
due and payable unless there are available monies collected, held or
received by the Trustee sufficient to pay such amount and all prior
amounts under this Section 5.08);
Thirteenth: To the holders of the Class A-2 Notes, in an
amount up to the aggregate Class A-2 Outstanding Principal Balance of
the Class A-2 Notes, based upon their respective Class A-2 Outstanding
Principal Balances, ratably, without preference or priority of any
kind;
Fourteenth: To the holders of the Class A-2 Notes, accrued and
unpaid interest at the related Note Interest Rate on the amount of any
unreimbursed Class A-2 Realized Loss Amounts previously allocated to
the Class A-2 Notes (provided that any such amount will not be due and
payable unless there are available monies collected, held or received
by the Trustee sufficient to pay such amount and all prior amounts
under this Section 5.08);
Fifteenth: To the holders of the Class A-2 Notes, in an amount
up to the amount of any unreimbursed Class A-2 Realized Loss Amounts
previously allocated thereto (provided that any such amount will not be
due and payable unless there are available monies collected, held or
received by the Trustee sufficient to pay such amount and all prior
amounts under this Section 5.08);
Sixteenth: To the holders of the Class A-3 Notes, in an amount
up to the aggregate Class A-3 Outstanding Principal Balance of the
Class A-3 Notes, based upon their respective Class A-3 Outstanding
Principal Balances, ratably, without preference or priority of any
kind;
Seventeenth: To the holders of the Class A-3 Notes, accrued
and unpaid interest at the related Note Interest Rate on the amount of
any unreimbursed Class A-3 Realized Loss Amounts previously allocated
to the Class A-3 Notes (provided that any such amount will not be due
and payable unless there are available monies collected,
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held or received by the Trustee sufficient to pay such amount and all
prior amounts under this Section 5.08);
Eighteenth: To the holders of the Class A-3 Notes, in an
amount up to the amount of any unreimbursed Class A-3 Realized Loss
Amounts previously allocated thereto (provided that any such amount
will not be due and payable unless there are available monies
collected, held or received by the Trustee sufficient to pay such
amount and all prior amounts under this Section 5.08);
Nineteenth: To the holders of the Class A-4 Notes, in an
amount up to the aggregate Class A-4 Outstanding Principal Balance of
the Class A-4 Notes, based upon their respective Class A-4 Outstanding
Principal Balances, ratably, without preference or priority of any
kind;
Twentieth: To the holders of the Class A-4 Notes, accrued and
unpaid interest at the related Note Interest Rate on the amount of any
unreimbursed Class A-4 Realized Loss Amounts previously allocated to
the Class A-4 Notes (provided that any such amount will not be due and
payable unless there are available monies collected, held or received
by the Trustee sufficient to pay such amount and all prior amounts
under this Section 5.08);
Twenty-First: To the holders of the Class A-4 Notes, in an
amount up to the amount of any unreimbursed Class A-4 Realized Loss
Amounts previously allocated thereto (provided that any such amount
will not be due and payable unless there are available monies
collected, held or received by the Trustee sufficient to pay such
amount and all prior amounts under this Section 5.08); and
Twenty-Second: To the payment of the remainder, if any, to the
Issuer or any other Person legally entitled thereto.
SECTION 5.09. Limitation on Suits.
No Holder of a Note shall have any right to institute any
Proceedings, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of Notes entitled to at least 40% of the
aggregate Voting Rights of all Classes voting together as a single
class (or, if there has been a declaration that the Notes are
immediately due and payable, or a sale or foreclosure with respect to
the Accounts, the required holders of the applicable Class or Classes
of Notes as set forth in Section 5.02 hereof) shall have made written
request to the Trustee to institute Proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
Proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
Notes entitled to more than 50% of the Voting Rights; it being
understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights
of any other Holders of Notes or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the
equal and benefit of all the Holders of Notes in the priority specified
herein.
SECTION 5.10. Unconditional Rights of Noteholders to Receive
Principal and Interest.
To the extent permitted by applicable law, the Holder of any
Note shall have the right, which right is absolute and unconditional except to
the extent restricted by applicable law, to receive payment of each installment
of interest when due and payable on such Note on the respective Distribution
Dates of such installments of interest and to receive payment of each
installment of principal of such Note when due (or in the case of any Note
called for redemption, on the date fixed for such redemption) and to institute
suit for the enforcement of any such payment, and except as otherwise set forth
in this Indenture, such right shall not be impaired without the consent of such
Holder.
SECTION 5.11. Restoration of Rights and Remedies.
If the Trustee or any Noteholder has instituted any Proceeding
to enforce any right or remedy under this Indenture and such Proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Noteholder, then and in every such case the Issuer, the
Trustee and the Noteholders shall, subject to any determination in such
Proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Noteholders shall continue as though no such Proceeding had been instituted.
SECTION 5.12. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the
Trustee or to the Noteholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or
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otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.13. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the
Noteholders, as the case may be.
SECTION 5.14. Control by the Noteholders.
Prior to the Indenture Maturity Date the Holders of Notes
entitled to at least 662/3% of the Voting Rights of the Class of Notes with the
lowest numerical class designation then Outstanding, and on or after the
Indenture Maturity Date, the Holders of Notes entitled to at least a majority of
the aggregate Voting Rights of all Classes voting together as a single class
shall have the right to direct the time, method and place of conducting any
Proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee; provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) any direction to the Trustee to undertake a Sale of the
Trust Fund shall be by the Holders of Notes entitled to the percentage
of the Voting Rights specified in Section 5.18(b)(1) or (2), whichever
is applicable,
(3) if the conditions to retention of the Trust Fund set forth
in Section 5.05(a) have been satisfied, then any direction by less than
all of the Noteholders to the Trustee to undertake a Sale of the Trust
Fund shall be of no force and effect, and
(4) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; provided,
however, that, subject to Section 6.01, the Trustee need not take
action which it determines might involve it in liability or expense or
be unjustly prejudicial to the Noteholders not consenting.
Notwithstanding anything herein to the contrary, any direction
to the Trustee to declare the Notes due and payable shall be made by those
Classes of Notes as specified in Section 5.02 hereof.
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SECTION 5.15. Waiver of Past Defaults.
The Holders of such Class or Classes of Notes entitled to the
Voting Rights specified in Section 5.02 hereof may, on behalf of the Holders of
all the Notes, waive any past Default hereunder and its consequences, except a
Default
(1) in the payment of any installment of principal of, or
interest on, any Note; or
(2) in respect of a covenant or provision hereof which under
Section 9.02 cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 5.16. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Note by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate Notes representing more than 10%. of the Voting Rights,
or to any suit instituted by any Noteholder for the enforcement of the payment
of any installment of interest on any Note on or after the maturity thereof
expressed in such Note or for the enforcement of the payment of any installment
of principal of any Note when due (or, in the case of a Note called for
redemption, on or after the applicable redemption date) or for the enforcement
of the payment of any installment of principal of any Note when due as indicated
in the Distribution Date Statement prepared and delivered by the Trustee
pursuant to Section 2.09(d).
SECTION 5.17. Waiver of Stay or Extension Laws.
The Issuer covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants in, or the performance of, this Indenture; and the Issuer (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any
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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 5.18. Sale of Trust Fund.
(a) The power to effect any sale or other disposition (a
"Sale") of any portion of the Trust Fund pursuant to Section 5.04 is expressly
subject to the provisions of Section 5.05 and this Section 5.18. The power to
effect any such Sale shall not be exhausted by any one or more Sales as to any
portion of the Trust Fund remaining unsold, but shall continue unimpaired until
the entire Trust Fund shall have been sold or all amounts payable on the Notes
and under this Indenture shall have been paid. To the fullest extent permitted
by law, the Trustee hereby expressly waives its right to any amount fixed by law
as compensation for any Sale.
(b) The Trustee shall not in any private or public Sale sell
the Trust Fund, or any portion thereof, unless
(1) prior to the Indenture Maturity Date, the Holders of Notes
entitled to at least 66 2/3% of the Voting Rights of the Class of Notes
with the lowest numerical Class designation then Outstanding, and on or
after the Indenture Maturity ▇▇▇▇, the Holders of Notes entitled to at
least a majority of the aggregate Voting Rights of all Classes voting
together as a single class, consent to or direct the Trustee to make,
such Sale, or
(2) the Trustee determines, in its sole discretion, that the
conditions for retention of the Trust Fund set forth in Section 5.05(a)
(i), (iii) or (iv) cannot be satisfied (in making any such
determination, the Trustee may rely upon an opinion of an Independent
investment banking firm obtained and delivered as provided in Section
5.05(b) unless a contrary opinion is delivered by an Independent
investment banking firm engaged by the Issuer pursuant to Section
5.05(b), in which event the Trustee shall not be protected in relying
solely upon either such opinion but may nevertheless in its discretion
make a determination as to whether the conditions for retention of the
Trust Fund set forth in Section 5.05(a) (i) and (v) can or cannot be
satisfied), and prior to the Indenture Maturity Date, the Holders of
Notes entitled to at least 66 2/3% of the Voting Rights of the Class of
Notes with the lowest numerical Class designation then Outstanding, and
on or after the Indenture Maturity Date, the Holders of Notes entitled
to at least a majority of the aggregate Voting Rights of all Classes
voting together as a single class, consent to such Sale.
The purchase by the Trustee of all or any portion of the Trust Fund at a private
Sale shall not be deemed a Sale or other disposition thereof for purposes of
this Section 5.18(b).
(c) Unless prior to the Indenture Maturity Date, the Holders
of Notes entitled to at least 66 2/3% of the Voting Rights of the Class of Notes
with the lowest numerical Class designation then outstanding, and on or after
the Indenture Maturity Date, the Holders of Notes entitled to at least a
majority of the aggregate Voting Rights of all Classes
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voting together as a single class, have otherwise consented or directed the
Trustee, at any public Sale of all or any portion of the Trust Fund at which a
minimum bid equal to or greater than the entire amount which would be payable to
the Holders under the Notes, in full payment thereof in accordance with Section
5.08 on the Distribution Date next succeeding the date of such Sale has not been
established by the Trustee and no Person bids an amount equal to or greater than
such amount, the Trustee shall bid an amount at least $1.00 more than the
highest other bid; provided that the payment for such bid will be limited to the
application of the credit as set forth in Section 5.18(d)(2).
(d) In connection with a Sale of all or any portion of the
Trust Fund,
(1) any Holder or Holders of Notes may bid for and purchase
the property offered for sale, and upon compliance with the terms of
sale may hold, retain and possess and dispose of such property, without
further accountability, and may, in paying the purchase money therefor,
deliver any Outstanding Notes or claims for interest thereon in lieu of
cash up to the amount which shall, upon distribution of the net
proceeds of such sale, be payable thereon, and such Notes, in case the
amounts so payable thereon shall be less than the amount due thereon,
shall be returned to the Holders thereof after being appropriately
stamped to show such partial payment;
(2) the Trustee may bid for and acquire the property offered
for Sale in connection with any Sale thereof, and, subject to any
requirements of, and to the extent permitted by, applicable law in
connection therewith, may purchase all or any portion of the Trust Fund
in a private Sale, and, in lieu of paying cash therefor, may make
settlement for the purchase price by crediting the gross Sale price
against the sum of (A) the amount which would be distributable to the
Holders of the Notes as a result of such Sale in accordance with
Section 5.08 on the Distribution Date next succeeding the date of such
Sale and (B) the expenses of the Sale and of any Proceedings in
connection therewith which are reimbursable to it, without being
required to produce the Notes in order to complete any such Sale or in
order for the net Sale price to be credited against such Notes, and any
property so acquired by the Trustee shall be held and dealt with by it
in accordance with the provisions of this Indenture;
(3) the Trustee shall execute and deliver an appropriate
instrument of conveyance transferring its interest in any portion of
the Trust Fund in connection with a Sale thereof;
(4) the Trustee is hereby irrevocably appointed the agent and
attorney-in-fact of the Issuer to transfer and convey its interest in
any portion of the Trust Fund in connection with a Sale thereof, and to
take all action necessary to effect such Sale; and
(5) no purchaser or transferee at such a Sale shall be bound
to ascertain the Trustee's authority, inquire into the satisfaction of
any conditions precedent or see to the application of any moneys.
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SECTION 5.19. Action on Notes.
The Trustee's right to seek and recover judgment on the Notes
or under this Indenture shall not be affected by the seeking, obtaining or
application of any other relief under or with respect to this Indenture. Neither
the lien of this Indenture nor any rights or remedies of the Trustee or the
Holders of Notes shall be impaired by the recovery of any judgment by the
Trustee against the Issuer or by the levy of any execution under such judgment
upon any portion of the Trust Fund.
SECTION 5.20. Allocation of Realized Loss Amount.
On each Distribution Date: any Class A-1 Realized Loss Amount
will be applied in reduction of the Class A-1 Outstanding Principal Balance; any
Class A-2 Realized Loss Amount will be applied in reduction of the Class A-2
Outstanding Principal Balance; any Class A-3 Realized Loss Amount will be
applied in reduction of the Class A-3 Outstanding Principal Balance; and any
Class A-4 Realized Loss Amount will be applied in reduction of the Class A-4
Outstanding Principal Balance; in each case, until the Outstanding Principal
Balance of such Class has been reduced to zero.
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ARTICLE VI
THE TRUSTEE
SECTION 6.01. Duties of Trustee.
(a) If an Event of Default known to the Trustee has occurred
and is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations of the Trustee shall be read into this
Indenture.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. The Trustee shall, however, examine such certificates
and opinions to determine whether they conform to the requirements of
this Indenture but need not verify the accuracy of the contents thereof
or whether procedures specified by or pursuant to the provisions of
this Indenture have been followed in the preparation thereof.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of subsection (b)
of this Section.
(2) 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.
(3) 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 5.14.
(d) For all purposes under this Indenture, the Trustee shall
not be deemed to have notice of any Event of Default described in Section
5.01(2) through 5.01(5) or any Default described in Section 5.01(2) through
5.01(5) unless a Responsible Officer assigned to and working in the Trustee's
corporate trust department has actual knowledge thereof or unless written notice
of any event which is in fact such an Event of Default or Default is received by
the Trustee at the Corporate Trust Office, and such notice references the Notes,
the Issuer, the Trust Fund or this Indenture.
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(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any 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 for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it; provided, however, that the Trustee shall not
refuse or fail to perform any of its duties hereunder solely as a result of
non-payment of its normal fees and expenses and, further provided, that nothing
in this Section 6.01(e) shall be construed to limit the exercise by the Trustee
of any right or remedy permitted under this Indenture or otherwise in the event
of the Issuer's failure to pay the Trustee's fees and expenses pursuant to
Section 6.07. In determining that such repayment or indemnity is not reasonably
assured to it, the Trustee must consider not only the likelihood of repayment or
indemnity by or on behalf of the Issuer but also the likelihood of repayment or
indemnity from amounts payable to it from the Trust Fund pursuant to Sections
6.07 and 8.02(d).
(f) Every provision of this Indenture that in any way relates
to the Trustee is subject to the provisions of this Section.
(g) Notwithstanding any extinguishment of all right, title and
interest of the Issuer in and to the Trust Fund following an Event of Default
and a consequent declaration of acceleration of the Maturity of the Notes
secured thereby, whether such extinguishment occurs through a Sale of the Trust
Fund to another Person, the acquisition of the Trust Fund by the Trustee or
otherwise, the rights, powers and duties of the Trustee with respect to the
Trust Fund (or the proceeds thereof) and the Holders of the Notes and the rights
of such Noteholders shall continue to be governed by the terms of this
Indenture.
(h) The Trustee agrees not to consent or cause the filing of a
petition in bankruptcy against the Issuer as a result of any amounts due and
owing the Trustee in its capacity as trustee hereunder.
SECTION 6.02. Notice of Default.
Upon a Default becoming known to the Trustee, the Trustee
shall, within 90 days after the occurrence of such Default becomes known to the
Trustee, transmit notice of such Default by mail to all Holders of Notes as to
which such Default has occurred, unless such Default shall have been cured or
waived; provided, however, that except in the case of a Default of the type
described in Section 5.01(l), the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of the
Holders of the Notes; and provided, further, that in the case of any Default of
the character specified in Section 5.01(3) or 5.01(4) no such notice to
Noteholders shall be given until at least 30 days after the occurrence thereof.
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SECTION 6.03. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an opinion of Counsel; provided, however,
that the Trustee may not, by relying on an Officer's Certificate or opinion of
Counsel, refrain from making payments of principal or interest on the Notes or
exercising remedies pursuant to Article V. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on the
Certificate or Opinion.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers as provided herein.
(e) The Trustee shall not be liable for any action it takes or
omits to take in good faith pursuant to the Indenture at the direction of
Holders of Notes in accordance with the Indenture, after notice to the Holders
of the Notes of a Default under this Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of
Notes.
The recitals contained herein and in the Notes, except the
certificates of authentication on the Notes, shall be taken as the statements of
the Issuer and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations with respect to the Trust Fund or as to the
validity or sufficiency of this Indenture or of the Notes. The Trustee shall not
be accountable for the use or application by the Issuer of Notes or the proceeds
thereof or any money paid to the Issuer or upon Issuer Order pursuant to the
provisions hereof.
SECTION 6.05. May Hold Notes.
The Trustee, any Agent, or any other agent of the Issuer, in
its individual or any other capacity, may become the owner or pledgee of Notes
and, subject to Sections 6.08 and 6.13, may otherwise deal with the Issuer or
any Affiliate of the Issuer with the same rights it would have if it were not
Trustee, Agent, or such other agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by Section 8.04, by
any other provision of this Indenture or by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Issuer and except to the extent of income or
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other gain on investments which are obligations of the Trustee, in its
commercial capacity, and income or other gain actually received by the Trustee
on investments which are obligations of others.
SECTION 6.07. Compensation and Reimbursement.
The Issuer agrees
(1) subject to any separate written agreement with the
Trustee, to pay the Trustee from time to time reasonable compensation
for all services rendered by it hereunder or any documents executed in
connection herewith (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
connection with the administration of the Trust Fund pursuant to the
terms of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel incurred in
connection with litigation affecting the Trust Fund or the Trustee),
except any such expense, disbursement or advance as may be attributable
to its negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of, or in connection
with, the acceptance or administration of this trust, including the
costs and expenses of defending themselves against any claim in
connection with the exercise or performance of any of their powers or
duties hereunder, provided that:
(i) with respect to any such claim, the Trustee
shall have given the Issuer written notice thereof promptly
after the Trustee shall have knowledge thereof;
(ii) while maintaining absolute control over its
own defense, the Trustee shall cooperate and consult fully
with the Issuer in preparing such defense; and
(iii) notwithstanding anything to the contrary in
this Section 6.07 (3), the Issuer shall not be liable for
settlement of any such claim by the Trustee entered into
without the prior consent of the Issuer, which consent shall
not be unreasonably withheld.
As security for the performance of the obligations of the Issuer under this
Section, the Trustee shall have a lien ranking junior to the lien of this
Indenture for the benefit of the Holders of the Notes (but senior to all other
liens, if any) upon all property and funds held or collected as part of the
Trust Fund by the Trustee in its capacity as such. The Trustee shall not
institute
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any Proceeding seeking the enforcement of such lien against the Trust Fund
unless such Proceeding is in connection with a Proceeding in accordance with
Article V for enforcement of the lien of this Indenture for the benefit of the
Holders of the Notes after the occurrence of an Event of Default (other than an
Event of Default arising solely from the Issuer's failure to pay amounts due the
Trustee under this Section 6.07) and a resulting declaration of acceleration of
Maturity of the Notes which has not been rescinded and annulled.
SECTION 6.08. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and who is Independent of the Issuer and
Servicer (except that the Trustee may serve as Successor Servicer). The Trustee
shall always have a combined capital and surplus as stated in Section 6.09. The
Trustee shall be subject to TIA Section 310(b). The Trustee shall have a place
of business in the State of Florida. Any successor Trustee shall execute the
Servicing Agreement and this Indenture.
SECTION 6.09. Trustee's Capital and Surplus.
The Trustee or any successor or substitute trustee shall at
all times have a combined capital and surplus of at least $50,000,000 and the
long-term unsecured debt obligations of which are rated at least ____ by _______
and the short-term unsecured debt obligations of which are rated at least ____
by _______. If the Trustee publishes annual reports of condition of the type
described in TIA Section 310(a)(2), its combined capital and surplus for
purposes of this Section 6.09 shall be as set forth in the latest such report.
SECTION 6.10. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Issuer. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee. The
costs and expenses incurred in connection with the resignation of the Trustee
and any petition filed for appointment of a Successor Trustee shall be paid by
the Issuer.
(c) The Trustee may be removed at any time for reasonable
cause by Act of the Holders of Notes entitled to more than 50% of the aggregate
Voting Rights of all Classes voting together as a single class delivered to the
Trustee and to the Issuer.
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(d) If at any time:
(1) the Trustee shall have a conflicting interest prohibited
by Section 6.08 and shall fail to resign or eliminate such conflicting
interest in accordance with Section 6.08 after written request therefor
by the Issuer or by any Noteholder, or
(2) the Trustee shall cease to be eligible under Section 6.09
or shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by an Issuer Order may remove the
Trustee, or (ii) subject to Section 5.16, any Noteholder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Trustee
for any cause, the Issuer by an Issuer Order shall promptly appoint a successor
Trustee. If within one year after such resignation, removal or incapability or
the occurrence of such vacancy, a successor Trustee has not been appointed by
the Issuer, then a successor trustee shall be appointed by Act of the Holders of
Notes entitled to more than 50% of the aggregate Voting Rights of all Classes
voting together as a single class delivered to the Issuer and the retiring
Trustee. The successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Issuer. If no successor Trustee shall have been so
appointed by the Issuer or Noteholders or the successor Trustee shall not have
accepted appointment in the manner hereinafter provided, any Noteholder who has
been a bona fide Holder of a Note for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Noteholders and S&P. Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust office.
SECTION 6.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Issuer and the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee. Notwithstanding the
foregoing, on request of the Issuer or the successor Trustee, such retiring
Trustee shall, upon payment of its
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charges, execute and deliver an Instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder subject nevertheless to its lien,
if any, provided for in Section 6.07. Upon request of any such successor
Trustee, the Issuer shall execute and deliver any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12. Merger; Conversion, Consolidation or Succession
to Business of Trustee.
Any entity into which the Trustee may be merged or converted
or with which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such entity
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Notes have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such authentication and deliver the
Notes so authenticated with the same effect as if such successor Trustee had
authenticated such Notes.
SECTION 6.13. Preferential Collection of Claims Against
Issuer.
The Trustee shall be subject to TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b), and a Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated in TIA Section 311(a).
SECTION 6.14. Co-trustees and Separate Trustees.
At any time or times, for the purpose of meeting the legal
requirements of the TIA or of any jurisdiction in which any of the Trust Fund
may at the time be located, the Issuer and the Trustee shall have power to
appoint, and, upon the written request of the Trustee or of the Holders of Notes
entitled to more than 50% of the aggregate Voting Rights of all Classes voting
together as a single class, the Issuer shall for such purpose join with the
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Rating Agencies and the Trustee either to act as co-trustee, jointly with the
Trustee, of all or any part of the Trust Fund, or to act as separate trustee of
any such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Issuer does not join in
such appointment
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within 15 days after the receipt by it of a request so to do, or in case an
Event of Default has occurred and is continuing, the Trustee alone shall have
power to make such appointment.
Should any written instrument from the Issuer be required by
any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right or power, any
such instrument shall, on request, be executed, acknowledged and delivered by
the Issuer.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms:
(1) The Notes shall be authenticated and delivered and all
rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustee hereunder, shall
be exercised, solely by the Trustee.
(2) The rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Trustee or by the Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers,
duties and obligations shall be exercised and performed by such
co-trustee or separate trustee.
(3) The Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Issuer evidenced by an
Issuer Order, may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, in case an Event of
Default has occurred and is continuing, the Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Issuer. Upon the written request
of the Trustee, the Issuer shall join with the Trustee in the
execution, delivery and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section.
(4) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee, or
any other such trustee hereunder, and the Trustee shall not be
personally liable by reason of any act or omission of any co-trustee or
other such separate trustee hereunder.
(5) Any Act of Noteholders delivered to the Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
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SECTION 6.15. Authenticating Agents.
The Trustee may appoint an Authenticating Agent with power to
act on its behalf and subject to its direction in the authentication and
delivery of the Notes designated for such authentication by the Issuer and
containing provisions therein for such authentication (or with respect to which
the Issuer has made other arrangements, satisfactory to the Trustee and such
Authenticating Agent, for notation on the Notes of the authority of an
Authenticating Agent appointed after the initial authentication and delivery of
such Notes) in connection with transfers and exchanges under Sections 2.06 and
2.07 as fully to all intents and purposes as though the Authenticating Agent had
been expressly authorized by those Sections to authenticate and deliver Notes.
For all purposes of this Indenture (other than in connection with the
authentication and delivery of Notes pursuant to Sections 2.05 and 2.12 in
connection with their initial issuance and for purposes of Section 2.08), the
authentication and delivery of Notes by the Authenticating Agent pursuant to
this Section shall be deemed to be the authentication and delivery of Notes "by
the Trustee". Such Authenticating Agent shall at all times be a Person that both
meets the requirements of Section 6.09 for the Trustee hereunder and has its
principal office in the City and State of New York.
Any Authenticating Agent shall also serve as Note Registrar or
co-Note Registrar as provided in Section 2.07. Any Authenticating Agent
appointed by the Trustee pursuant to the terms of this Section 6.15 shall
deliver to the Trustee as a condition precedent to the effectiveness of such
appointment an instrument accepting the trusts, duties and responsibilities of
Authenticating Agent and of Note Registrar or co-Note Registrar and indemnifying
the Trustee for and holding the Trustee harmless against, any loss, liability or
expense (including reasonable attorneys' fees) incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance,
administration of the trust or exercise of authority by such Authenticating
Agent, Note Registrar or co-Note Registrar.
Any entity into which any Authenticating Agent may be merged
or converted or with which it may be consolidated, or any entity resulting from
any merger, consolidation or conversion to which any Authenticating Agent shall
be a party, or any entity succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor entity is otherwise eligible under this Section,
without the execution or filing of any further act on the part of the parties
hereto or the Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and the Issuer. The Trustee may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and the Issuer. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time any Authenticating Agent shall cease to be eligible under this Section,
the Trustee shall promptly appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Issuer and shall mail notice of such
appointment to all Holders of Notes.
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The Issuer agrees to pay to any Authenticating Agent from time
to time reasonable compensation for its services. The provisions of Sections
2.10, 6.04 and 6.05 shall be applicable to any Authenticating Agent.
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ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01. Issuer to Furnish Trustee Names and Addresses of
Noteholders.
(a) The Issuer will furnish or cause to be furnished to the
Trustee (i) semi-annually, not less than 45 days nor more than 60 days after the
Record Date for each ________ and ______________ Distribution Date, a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders of Notes, 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 10 days prior to the
time such list is furnished; provided, however, that so long as the Trustee is
the Note Registrar, no such list shall be required to be furnished to the
Trustee.
(b) In addition to furnishing to the Trustee the Noteholder
lists, if any, required under subsection (a), the Issuer shall also furnish all
Noteholder lists, if any, required under Section 3.03 at the times required by
said Section 3.03.
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 Holders of Notes
contained in the most recent list, if any, furnished to the Trustee as provided
in Section 7.01 and the names and addresses of the Holders of Notes received by
the Trustee in its capacity as Note Registrar. The Trustee may destroy any list
furnished to it as provided in Section 7.01 upon receipt of a new list so
furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or
under the Notes.
(c) The Issuer, the Trustee and the Note Registrar shall have
the protection of TIA Section 312(c).
SECTION 7.03. Reports by Trustee.
(a) (i) Within 60 days after ____________ of each year (the
"reporting date"), commencing with the year after the issuance of the Notes, the
Trustee shall mail to all Holders (together with all other Persons to whom
reports are to be transmitted under TIA Section 313(c)) a brief report dated as
of such reporting date that complies with TIA Section 313(a); (ii) the Trustee
shall also mail to Holders any reports that are required by TIA Section
313(b)(2) with respect to any advances made by the Trustee and (iii) the Trustee
shall also mail to Holders of Notes any reports required by TIA Section
313(a)(5) and Section 313(b)(1) with respect to the release
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and substitution of any Accounts. For purposes of the information required to be
included in any such reports pursuant to TIA Section 313(a)(3), 313(b)(1) or
313(b)(2) the principal amount of indenture securities outstanding on the date
as of which such information is provided shall be the Aggregate Outstanding
Principal Balance at the date as of which such information is presented.
(b) A copy of each report required under this Section 7.03
shall, at the time of such transmission to Noteholders, be filed by the Trustee
with the Commission and with each securities exchange upon which the Notes are
listed, provided that the Issuer has previously notified the Trustee of such
listing. The Issuer will notify the Trustee when the Notes are listed on any
securities exchange.
SECTION 7.04. Reports by Issuer.
The Issuer (a) shall file with the Trustee within 15 days
after it files them 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 by rules and regulations prescribe) which
the Issuer is required to file with the Commission pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 and (b) shall also comply with the
other provisions of TIA Section 314(a).
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ARTICLE VIII
ACCOUNTS, PAYMENTS OF INTEREST AND PRINCIPAL, AND RELEASES
SECTION 8.01. Collection of Moneys.
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 hold all such money and property received by
it as part of the Trust Fund, and shall apply 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 the Servicing Agreement, or
any Hazard Insurance Policy or any other related insurance policy, the Trustee
may, and upon the request of the Holders of Notes entitled to more than 50% of
the aggregate Voting Rights of all Classes voting together as a class, the
Trustee shall, 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 to proceed thereafter as
provided in Article V.
SECTION 8.02. Collection Account.
(a) Prior to the initial authentication and delivery of the
Notes, the Issuer shall open, at the Corporate Trust Office, a segregated trust
account (the "Collection Account") in the name of the Trustee on behalf of the
Noteholders which such account shall be an Eligible Account. All payments to be
made from time to time to the Holders of Notes out of funds in the Collection
Account pursuant to this Indenture shall be made by the Trustee as the Paying
Agent of the Issuer or, pursuant to Section 3.03, by any other Paying Agent
appointed by the Issuer. All moneys deposited from time to time in the
Collection Account, including the deposits to be made by the Servicer in the
Collection Account pursuant to the Servicing Agreement, and all deposits therein
pursuant to this Indenture, and all investments made with such moneys including
all income or other gain from such investments shall be held by the Trustee as
part of the Trust Fund as herein provided. So long as no Servicing Default shall
have occurred and be continuing, moneys in the Collection Account representing
collections on the Accounts erroneously deposited therein shall be subject to
withdrawals by the Servicer pursuant to Sections 2.07(c) (i) and 2.11 of the
Servicing Agreement.
(b) So long as no Default or Event of Default shall have
occurred and be continuing, all or a portion of the Collection Account shall be
invested and reinvested by the Trustee at the Issuer's direction in one or more
Eligible Investments bearing interest or sold at discount. No such investment
shall mature later than two Business Days prior to the next Distribution Date
(or on such Distribution Date, in the case of obligations referred to in clause
(a) (i) of the definition of Eligible Investments and in the case of Eligible
Investments of which the Trustee is the obligor, so long as at the time of such
investment the long-term unsecured debt securities of the Trustee are rated
_______ by the Rating Agencies). Notwithstanding the
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foregoing, any investment (including repurchase agreements) on which the
Trustee, in its commercial capacity, is the obligor, may mature on a
Distribution Date if, under this Section 8.02, such investment could otherwise
mature on the Business Day immediately preceding such Distribution Date.
All income or other gains from investment of moneys deposited
in the Collection Account shall be deposited by the Trustee in the Collection
Account immediately upon receipt, and any loss resulting from such investment
shall be charged to the Collection Account.
(c) Unless the Notes have been declared due and payable
pursuant to Section 5.02 and moneys collected by the Trustee with respect to the
Notes are being applied in accordance with Section 5.08, the amount on deposit
in the Collection Account on any Distribution Date shall, after payment of
Issuer Expenses in accordance with Subsection (d), be withdrawn from the
Collection Account, in the amounts required, for application as follows:
On each Distribution Date, interest and principal payments on
the Notes will be made from Available Funds in the following amounts and order
of priority:
First: To the holders of the Class A-1 Notes, in an amount up
to the Interest Accrual Amount thereof;
Second: To the holders of the Class A-1 Notes, in an amount up
to all unreimbursed Class Interest Shortfalls related thereto, together with
accrued interest thereon;
Third: To the holders of the Class A-2 Notes, in an amount up
to the Interest Accrual Amount thereof;
Fourth: To the holders of the Class A-2 Notes, in an amount up
to all unreimbursed Class Interest Shortfalls related thereto, together with
accrued interest thereon;
Fifth: To the holders of the Class A-3 Notes, in an amount up
to the Interest Accrual Amount thereof;
Sixth: To the holders of the Class A-3 Notes, in an amount up
to all unreimbursed Class Interest Shortfalls related thereto, together with
accrued interest thereon;
Seventh: To the holders of the Class A-4 Notes, in an amount
up to the Interest Accrual Amount thereof;
Eighth: To the holders of the Class A-4 Notes, in an amount up
to all unreimbursed Class Interest Shortfalls related thereto, together with
accrued interest thereon;
Ninth: To the Class A-4 Reserve Account, in an amount up to
all unreimbursed Class A-4 Reserve Withdrawal Amounts;
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Tenth: To the holders of the Class A-1 Notes, in an amount up
to the Class A-1 Optimal Principal Amount;
Eleventh: To the holders of the Class A-1 Notes, accrued and
unpaid interest at the related Note Interest Rate on the amount of any
unreimbursed Class A-1 Realized Loss Amounts previously allocated to the Class
A-1 Notes (provided that any such amount will not be due and payable unless
there exist Available Funds sufficient to pay such amount and all prior amounts
under this Available Funds Allocation);
Twelfth: To the holders of the Class A-1 Notes, in an amount
up to the amount of any unreimbursed Class A-1 Realized Loss Amounts previously
allocated thereto (provided that any such amount will not be due and payable
unless there exist Available Funds sufficient to pay such amount and all prior
amounts under this Available Funds Allocation);
Thirteenth: To the holders of the Class A-2 Notes, in an
amount up to the Class A-2 Optimal Principal Amount;
Fourteenth: To the holders of the Class A-2 Notes, accrued and
unpaid interest at the related Note Interest Rate on the amount of any
unreimbursed Class A-2 Realized Loss Amounts previously allocated to the Class
A-2 Notes (provided that any such amount will not be due and payable unless
there exist Available Funds sufficient to pay such amount and all prior amounts
under this Available Funds Allocation);
Fifteenth: To the holders of the Class A-2 Notes, in an amount
up to the amount of any unreimbursed Class A-2 Realized Loss Amounts previously
allocated thereto (provided that any such amount will not be due and payable
unless there exist Available Funds sufficient to pay such amount and all prior
amounts under this Available Funds Allocation);
Sixteenth: To the holders of the Class A-3 Notes, in an amount
up to the Class A-3 Optimal Principal Amount;
Seventeenth: To the holders of the Class A-3 Notes, accrued
and unpaid interest at the related Note Interest Rate on the amount of any
unreimbursed Class A-3 Realized Loss Amounts previously allocated to the Class
A-3 Notes (provided that any such amount will not be due and payable unless
there exist Available Funds sufficient to pay such amount and all prior amounts
under this Available Funds Allocation);
Eighteenth: To the holders of the Class A-3 Notes, in an
amount up to the amount of any unreimbursed Class A-3 Realized Loss Amounts
previously allocated thereto (provided that any such amount will not be due and
payable unless there exist Available Funds sufficient to pay such amount and all
prior amounts under this Available Funds Allocation);
Nineteenth: To the holders of the Class A-4 Notes, in an
amount up to the Class A-4 Optimal Principal Amount;
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Twentieth: To the holders of the Class A-4 Notes, accrued and
unpaid interest at the related Note Interest Rate on the amount of any
unreimbursed Class A-4 Realized Loss Amounts previously allocated to the Class
A-4 Notes (provided that any such amount will not be due and payable unless
there exist Available Funds sufficient to pay such amount and all prior amounts
under this Available Funds Allocation);
Twenty-First: To the holders of the Class A-4 Notes, in an
amount up to the amount of any unreimbursed Class A-4 Realized Loss Amounts
previously allocated thereto (provided that any such amount will not be due and
payable unless there exist Available Funds sufficient to pay such amount and all
prior amounts under this Available Funds Allocation);
Twenty-Second: To the Successor Servicer, as additional
servicing compensation, an amount equal to the net reinvestment earnings on
funds on deposit in the Holding Account to the extent of Available Funds
remaining after the applications pursuant to sub-clauses first through
twenty-first in this clause (c) for such Distribution Date; and
Twenty-Third: To the Issuer, free of the lien of this
Indenture, an amount equal to the excess, if any, of (x) the Available Funds for
such Distribution Date over (y) the aggregate of the amounts applied pursuant to
subclauses first through twenty-second in this clause (ii) for such Distribution
Date, each such amount being the amount thereof set forth in the Distribution
Date Statement. Any funds remaining in the Collection Account shall be invested
in accordance with Section 8.02(b).
In addition to distributions of Available Funds thereto in
accordance with the Available Funds Allocation, on each Distribution Date the
Trustee shall pay any Class A-4 Reserve Withdrawal Amount to the Holders of the
Class A-4 Notes in accordance with Section 8.03.
(d) Funds on deposit in the Collection Account shall be
withdrawn therefrom and applied on each Distribution Date to the payment of
Issuer Expenses; provided that (i) funds shall not be withdrawn from the
Collection Account for such purpose during the period from the end of each Due
Period through the next Distribution Date if such withdrawal would result in the
funds on deposit in the Collection Account on such Distribution Date being less
than the Available Funds for such Distribution Date as set forth in the related
Distribution Date Statement and (ii) such Issuer Expenses, to the extent not
paid on such Distribution Date because of clause (i), shall be paid as soon as
possible after such Distribution Date.
(e) After the entire principal amount of and accrued and
unpaid interest on the Notes and any unreimbursed Realized Loss Amounts have
been paid or provided for as provided in Section 4.01, the cash balance, if any,
then remaining in the Collection Account shall be withdrawn from such Collection
Account by the Trustee, released from the lien of this Indenture and paid to the
Issuer.
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SECTION 8.03. Class A-4 Reserve Account.
Prior to the initial authentication and delivery of the Notes,
the Issuer shall open, at the Corporate Trust Office, a segregated trust account
which shall be an Eligible Account (the "Class A-4 Reserve Account"). Prior to
the initial authentication and delivery of Notes, the Issuer shall deposit the
Class A-4 Reserve Initial Deposit into the Class A-4 Reserve Account. If on any
Distribution Date, Available Funds, less amounts thereof distributed on the
Class A-1, Class A-2 and Class A-3 Notes in respect of interest, are
insufficient to make full payment of interest on the Class A-4 Notes, in
accordance with paragraphs seventh and eighth of Section 8.02(c) the Trustee
will withdraw the amount of the deficiency from the Class A-4 Reserve Account
(or the amount on deposit therein, if less) (the "Class A-4 Reserve Withdrawal
Amount") and deposit such amount in the Collection Account for distribution to
the Holders of the Class A-4 Notes. Any Class A-4 Reserve Withdrawal Amount will
be reimbursed to the Class A-4 Reserve Account in accordance with paragraph
ninth of Section 8.02(c). Other than any such reimbursement, no person will have
any obligation to deposit any amounts in the Class A-4 Reserve Account following
the Closing Date.
So long as no Default or Event of Default shall have occurred
and be continuing, all or a portion of the Class A-4 Reserve Account shall be
invested and reinvested by the Trustee at the Issuer's direction in one or more
Eligible Investments bearing interest or sold at discount. Such Eligible
Investments must mature such that at any point in time: (i) an amount up to
three month's interest on the Class A-4 Outstanding Principal Balance as of the
immediately preceding Distribution Date must mature no later than two Business
Days prior to the next Distribution Date; (ii) the excess of such Eligible
Investments up to an amount equal to three month's interest on the Class A-4
Outstanding Principal Balance as of the immediately preceding Distribution Date
must mature no later than two Business Days prior to the second succeeding
Distribution Date; (iii) the excess of such Eligible Investments up to an amount
equal to three month's interest on the Class A-4 Outstanding Principal Balance
as of the immediately preceding Distribution Date must mature no later than two
Business Days prior to the third succeeding Distribution Date; and (iv) the
excess of such Eligible Investments must mature no later than two Business Days
prior to the fourth succeeding Distribution Date.
All income or other gains from investment of moneys deposited
in the Class A-4 Reserve Account shall be deposited by the Trustee in the Class
A-4 Reserve Account immediately upon receipt, and any loss resulting from such
investment shall be charged to the Class A-4 Reserve Account. Any income or
other gains from such investments shall be paid to the Issuer on each
Distribution Date prior to the distribution of any Class A-4 Reserve Withdrawal
Amounts on such date.
On each Distribution Date any excess of the amount on deposit
in the Class A-4 Reserve Account (following the Available Funds Allocation and
any required withdrawals from the Class A-4 Reserve Account in respect of
shortfalls in Available Funds) over the Class A-4 Maximum Reserve Amount will be
withdrawn therefrom by the Trustee and remitted to the Issuer, free of the lien
of this Indenture. On the Distribution Date on which the Class A-4
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Outstanding Principal Balance has been reduced to zero, all amounts on deposit
in the Class A-4 Reserve Account will be remitted to the Issuer free of the lien
of this Indenture.
SECTION 8.04. General Provisions Regarding the Collection
Account.
(a) The Collection Account shall relate solely to the Notes
and to the Accounts, Eligible Investments and other property securing the Notes.
Funds and other property in the Collection Account shall not be commingled with
any other moneys or property of the Issuer or any Affiliate thereof.
(b) The Issuer will not direct the Trustee to make any
investment of any funds in the Collection Account or to sell any investment held
in the Collection Account except under the following terms and conditions:
(i) each such investment shall be made in the name of the
Trustee (in its capacity as such) or in the name of a nominee of the
Trustee (or, if, as indicated by an opinion of Counsel delivered to the
Trustee, applicable law provides for perfection of pledges of an
investment not evidenced by a certificate or other instrument through
registration of such pledge on books maintained by or on behalf of the
issuer of such investment, such pledge may be so registered),
(ii) the Trustee shall have sole control over such
investment, the income thereon and the proceeds thereof,
(iii) any certificate or other instrument evidencing such
investment shall be delivered directly to the Trustee or its agent, and
(iv) the proceeds of each sale of such an investment shall
be remitted by the purchaser thereof directly to the Trustee for
deposit in the Collection Account.
(c) If any amounts are needed for disbursement from the
Collection Account and sufficient uninvested funds are not available therein to
make such disbursement, in the absence of an Issuer Order for the liquidation of
investments held therein in an amount sufficient to provide the required funds,
the Trustee shall cause to be sold or otherwise converted to cash a sufficient
amount of the investments in the Collection Account.
(d) The Trustee shall not in any way be held liable by reason
of any insufficiency in the Collection Account except for its liability on
investments which are liabilities of the Trustee in its commercial capacity as
an obligor of any Eligible Investment.
(e) All investments of funds in the Collection Account and all
sales of investments held in the Collection Account shall, except as provided
below, be made by the Trustee in accordance with an Issuer Order; provided,
however, such Issuer Order shall specify investment of such funds only in
Eligible Investments. Subject to compliance with the requirements of Sections
8.02(b) and 8.04(b), such Issuer Order may authorize the Trustee to make the
specific investments set forth therein, to make investments from time to time
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consistent with the general instructions set forth therein, or to make specific
investments pursuant to written, telegraphic or telephonic instructions of the
employees or agents of the Issuer identified therein, in each case only in
Eligible Investments and in such amounts as such Issuer Order shall specify.
In the event that:
(i) the Issuer shall have failed to give investment
directions to the Trustee by 10:30 a.m. Eastern Time on the Business
Day prior to any day on which funds are due to be deposited in the
Collection Account (whether with respect to Remittances or payments of
principal of or interest on Eligible Investments) authorizing the
Trustee to invest such funds,
(ii) a Default or Event of Default shall have occurred and
be continuing but the Notes shall not have been declared due and
payable pursuant to Section 5.02, or if such Notes shall have been
declared due and payable following an Event of Default, amounts
collected or receivable from the Trust Fund are being applied in
accordance with Section 5.05, or
(iii) an Event of Default shall have occurred and be
continuing, the Notes shall have been declared due and payable pursuant
to Section 5.02 and amounts collected or receivable from the Trust Fund
are being applied in accordance with Section 5.08,
the Trustee shall invest and reinvest the funds then in the Collection Account
to the fullest extent practicable, in such manner as the Trustee shall from time
to time determine, but only in Eligible Investments described in paragraph (a)
of the definition thereof. In determining the practicability of making any
investment required by this Section 8.04 (e), the Trustee shall be entitled to
take into account the availability to it, in the normal course of its corporate
trust business, of investments of the required maturity and in the amounts
available to be invested. All investments made pursuant to clause (i) above
shall mature on the next Business Day following the date of such investment, all
such investments made pursuant to clause (ii) above shall mature no later than
the maturity date therefor permitted by Section 8.02(b), and all investments
made pursuant to clause (iii) above shall mature no later than the first date
following the date of such investment on which the Trustee proposes to make a
distribution to Holders of Notes pursuant to Section 5.08.
(f) Subject to the restriction on the maturity of investments
set forth in Section 8.02(b) and notwithstanding subsection (e) above, the
Issuer will give appropriate and timely investment directions to the Trustee
such that at the close of business on not more than two Business Days in any one
calendar year not more than an aggregate of $25,000 of funds in the Collection
Account are not invested pursuant, directly or indirectly, to an Issuer Order in
Eligible Investments bearing interest or sold at a discount which mature on or
after the opening of business on the next Business Day.
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SECTION 8.05. Reports by Trustee to Noteholders.
On each Distribution Date the Trustee shall deliver to the
Noteholders a written report based upon the Distribution Date Statement for such
Distribution Date as reviewed by a firm of Independent Accountants pursuant to
Section 8.07(b) setting forth the amount of such payment which represents
principal and the amount which represents interest (in each case on a per
Individual Note basis), and the principal amount of an Individual Note after
giving effect to the payment of principal made on such Distribution Date.
SECTION 8.06. Reports by Trustee.
In addition to any statement required to be delivered or
prepared by the Trustee pursuant to Section 2.09, 8.02 or 10.01, the Trustee
shall deliver to the Issuer, the Servicer and the Independent Accountants
appointed pursuant to Section 8.07, within two Business Days after the request
of the Issuer, or such Independent Accountants, a written report setting forth
the amount of the Collection Account established hereunder and the identity of
the investments included therein. Without limiting the generality of the
foregoing, the Trustee shall, upon the request of the Issuer, promptly transmit
to the Issuer copies of all accountings of, and information with respect to,
Remittances furnished it by the Servicer and shall promptly notify the Issuer
if, on the fifth day after any Remittance Date, any Remittance then due or any
portion thereof has not been received by the Trustee.
SECTION 8.07. Reports by Independent Accountants.
(a) At the Closing Date the Issuer shall appoint the firm of
Independent Accountants to prepare and deliver the certificate or opinion
required to be delivered under Section 2.12(f), and prior to the time any report
or certificate pursuant to Section 8.07(b) is required to be delivered, the
Issuer will appoint a firm of Independent Accountants as its Independent
Accountants for purposes of preparing and delivering the reports or certificates
required by Section 8.07(b). Upon any resignation by such firm the Issuer shall
promptly appoint a successor thereto that shall also be a firm of Independent
Accountants of recognized national reputation. If the Issuer shall fail to
appoint a successor to a firm of Independent Accountants which has resigned
within fifteen days after such resignation, the Issuer shall promptly notify the
Trustee of such failure in writing. If the Issuer shall not have appointed a
successor within ten days thereafter, the Trustee shall promptly appoint a
successor firm of Independent Accountants of recognized national reputation. The
fees of such successor shall be payable by the Issuer, and any fees not so paid
by the Issuer may be paid by the Trustee on behalf of the Issuer, from amounts
otherwise payable to the Issuer from the related Collection Account pursuant to
Section 8.02(e).
(b) If the Trustee shall fail to deliver to the Issuer any
Distribution Date Statement by the due date therefor, the Issuer shall, at the
opening of business on the next Business Day after such due date, direct the
firm of Independent Accountants appointed pursuant to subsection (a) to prepare
and deliver to the Trustee such Distribution Date Statement at the expense of
the Trustee, no later than 2:00 p.m. on the Business Day following the day on
which such direction was given. Any fees of such Independent Accountants not
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paid by the Issuer may be paid by the Trustee, on behalf of the Issuer (unless
such fees are for the account of the Trustee), from amounts otherwise payable to
the Issuer from the Collection Account pursuant to Section 8.02(e).
SECTION 8.08. Reports by the Servicer.
In the Servicing Agreement the Servicer has agreed to deliver
to the Trustee at the time specified therein the information called for by
Section 3.01(a) of the Servicing Agreement.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of
Noteholders.
Without the consent of the Holders of any Notes, the Issuer
and the Trustee when authorized by an Issuer Order, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee for any of the following purposes:
(1) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Trustee any property subject or required to
be subjected to the lien of this Indenture, or to subject to the lien
of this Indenture additional property;
(2) to evidence the succession of another Person to the
Issuer, and the assumption by any such successor of the covenants of
the Issuer herein and in the Notes contained:
(3) to add to the covenants of the Issuer, for the benefit of
the Holders of all Notes, or to surrender any right or power herein
conferred upon the Issuer;
(4) to cure any ambiguity or mistake, to correct or supplement
any provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, which shall not be
materially inconsistent with the other provisions of this Indenture,
provided that such action shall not adversely affect in any material
respect the interests of the Holders of the Notes; or
(5) 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 TIA or under any similar federal
statute hereafter enacted, and to add to this Indenture such other
provisions as may be expressly required by TIA.
SECTION 9.02. Supplemental Indentures with Consent of
Noteholders.
With the consent of the Holders of Notes entitled to at least
50% of the aggregate Voting Rights of all Classes voting together as a single
class, by Act of said Holders delivered to the Issuer and the Trustee, the
Issuer, when authorized by an Issuer Order, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions,
of this Indenture or of modifying in any manner the rights of the Holders of the
Notes under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby:
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(1) change the final installment of principal of, or any
installment of interest on, any Note or reduce the principal amount
thereof, the Note Interest Rate thereon or the Redemption Price with
respect thereto, change the Note Redemption Date, change any place of
payment where, or the coin or currency in which, any Note or any
interest thereon is payable, or impair the right to institute suit for
the enforcement of the payment of any installment of interest due on
any Note on or after the date such payment is due or for the
enforcement of the payment of the entire remaining unpaid principal
amount of any Note on or after the Maturity of the final installment of
the principal thereof (or, in the case of redemption, on or after the
applicable Redemption Date);
(2) reduce the percentage of the Voting Rights, the consent of
the Holders of which is required for any such supplemental indenture,
or the consent of the Holders of which is required for any waiver of
compliance with provisions of this Indenture or Defaults hereunder and
their consequences provided for in this Indenture;
(3) modify any of the provisions of this Section 9.02, Section
5.14 or Section 5.18 (b) or 5.18 (c), except to increase any percentage
specified therein or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Note affected thereby;
(4) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(5) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Trust Fund or terminate the lien of this Indenture on any property at
any time subject hereto or deprive the Holder of any Note of the
security afforded by the lien this Indenture; or
(6) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the principal or interest for
any Distribution Date on any Notes (including the calculation of any of
the individual components of such Debt Service Requirement) or to
affect the rights of the Holders of Notes to the benefits of any
provisions contained herein for the mandatory payment of principal.
The Trustee may in its discretion determine whether or not any
Notes would be affected by any supplemental indenture pursuant to this Section
9.02 or Section 9.01(4) hereof and any such determination shall be conclusive
upon the Holders of all Notes, whether theretofore or thereafter authenticated
and delivered hereunder. The Trustee shall not be liable for any such
determination made in good faith.
It shall not be necessary for any Act of Noteholders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
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Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to this Section, the Issuer shall mail to
the Holders of the Notes to which such supplemental indenture relates a notice
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting 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 Section 6.01) 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 (except to the extent required in the case of a supplemental indenture
entered into under Section 9.01(5)) be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Notes to which such supplemental indenture relates which have
theretofore been or thereafter are authenticated and delivered hereunder shall
be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Section
shall conform to the requirements of the TIA as then in effect, so long as this
Indenture shall then be qualified under the TIA.
SECTION 9.06. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and if required by the
Trustee shall, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Issuer, to any such supplemental indenture which relates to the Notes may be
prepared and executed by the Issuer and authenticated and delivered by the
Trustee in exchange for Outstanding Notes.
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ARTICLE X
REDEMPTION OF NOTES
SECTION 10.01. Optional Redemption of Notes.
The Notes are subject to redemption in whole and not in part
at the option of the Issuer on any Distribution Date at the Redemption Price
therefor if before or after giving effect to the payment of principal otherwise
required to be made on such Distribution Date the Outstanding Principal Balance
of each Class of Notes outstanding (prior to allocations of any Realized Loss
Amounts) equals 101 or less of the initial principal amount of such Class of
Notes.
Payment on the Notes pursuant to any optional redemption may
be made only with Eligible Moneys. If the Issuer elects to so redeem all Notes
then Outstanding, it shall, no later than 30 days prior to the Distribution Date
selected for such redemption, deliver notice of such election to the Trustee and
Moody's, together with an Issuer Order directing the Trustee to effect such
redemption and the Aggregate Redemption Price due on such Distribution Date for
deposit into the Collection Account. All such Notes shall be due and payable on
such Distribution Date upon the giving of the notice thereof required by Section
10.02.
SECTION 10.02. Form of Redemption Notice.
Notices of redemptions of Notes shall be given by the Trustee
in the name and at the expense of the Issuer and shall be mailed no later than
10 days prior to the Redemption Date to the Persons who were Holders of such
Notes on the Record Date that would otherwise be applicable to the Distribution
Date on which such notes are to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and
(3) 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 that no interest shall
accrue on such Note for any period after the date fixed for redemption.
Failure to give notice of redemption, or any defect therein,
to any Holder of any Note selected for redemption shall not impair or affect the
validity of the redemption of any other Note.
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SECTION 10.03. Notes Payable on Redemption Date.
Notice of redemption having been given as provided in section
10. 02, the Notes so to be redeemed shall, on the applicable 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 such
Redemption Price for any period after such Redemption Date. Upon surrender of
such Notes for redemption in accordance with said notice such Notes shall be
paid by or on behalf of the Issuer at the Redemption Price.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Compliance Certificates and Opinions.
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 an Officers, Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition of covenant provided for in this Indenture (including one furnished
pursuant to specific requirements of this Indenture relating to a particular
application or request) shall include to the extent applicable:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with;
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with; and
(5) if the signer of such certificate or opinion is required
to be Independent, the statement required by the definition of the term
"Independent".
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 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.
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Any certificate or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate 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
Owner Trustee, the Grantor or any other Person, stating that the information
with respect to such factual matters is in the possession of such Person, 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. Any Opinion of Counsel may be based on the written
opinion of other counsel, in which event such Opinion of Counsel shall be
accompanied by a copy of such other counsels opinion and shall include a
statement to the effect that such counsel believes that such counsel and the
Trustee may reasonably rely upon the opinion of such other counsel.
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.
Wherever 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, 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 Section 6.01(b)(2)
Wherever in this Indenture it is provided that the absence of
the occurrence and continuation of a Default or Event of Default is a condition
precedent to the taking of any action by the Trustee at the request or direction
of the Issuer, then, notwithstanding that the satisfaction of such condition is
a condition precedent to the Issuer's right to make such request or direction,
the Trustee shall be protected in acting in accordance with such request or
direction if it does not have knowledge of the occurrence and continuation of
such Default or Event of Default as provided in Section 6.01(d).
SECTION 11.03. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee, and, 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
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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.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Whenever
such execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(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 the Holder of any Notes shall bind the Holder
of every Note issued upon the registration of transfer 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 Notes.
SECTION 11.04. Notices, etc., to Trustee and Issuer.
(a) Any request, demand, authorization, direction, notice,
consent waiver or Act of Noteholders or other documents provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with
(1) the Trustee by any Noteholder or by the Issuer shall be
sufficient for every purpose hereunder if filed in writing and mailed
by registered mail to the Trustee at
___________________________________________, Attention: __________, or
(2) the Issuer by the Trustee or by any Noteholder shall be
sufficient for every purpose hereunder (except as provided in Section
5.01(3) and (4)) if in writing and mailed, firstclass postage-prepaid,
to the Issuer addressed to it at c/o _________________________ as Owner
Trustee, Attention: ____________________, or at any other address
previously furnished in writing to the Trustee by the Issuer.
(b) Notices required under this Indenture to be sent to
Noteholders with respect to material amendments to the Indenture, the Trust
Agreement or the Servicing Agreement, satisfaction and discharge of the
Indenture and any reports, statements, or other notices required hereunder shall
in addition be sent to each Rating Agency; to ___________ at its address at
________________________________, and to ___ at its address at
_____________________________.
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SECTION 11.05. Notices and Reports to Noteholders; Waiver of
Notices
Where this Indenture provides for notice to Noteholders of any
event or the mailing of any report to Noteholders, such notice or report shall
be sufficiently given (unless otherwise herein expressly provided) if mailed,
first-class postage prepaid, to each Noteholder affected by such event or to
whom such report is required to be mailed, at the address of such Noteholder 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 or the mailing
of such report. In any case where a notice or report to Noteholders is mailed in
the manner provided above, neither the failure to mail such notice or report,
nor any defect in any notice or report so mailed, to any particular Noteholder
shall affect the sufficiency of such notice or report with respect to other
Noteholders, and any notice or report which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice.
SECTION 11.06. Rules by Trustee and Agents
The Trustee may make reasonable rules for any meeting of
Noteholders. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
SECTION 11.07. Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by,
or which is deemed to be included in this Indenture (an "incorporated
provision") by operation of, any of the provisions of TIA, such required
provision or incorporated provision shall control.
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.
XI-4
102
SECTION 11.09. Successors and Assigns
All covenants and agreements in this Indenture by the Issuer
shall bind its successors and assigns, whether so expressed or not.
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, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any separate trustee or co-trustee appointed under Section
6.14 and the Noteholders 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 of any Distribution Date,
Redemption Date, or any other date on which principal of or interest on any Note
is proposed to be paid 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 nominal date of any such Distribution Date,
Redemption Date, or other date for the payment of principal of or interest on
any Note, and no interest shall accrue for the period from and after any such
nominal date, provided such payment is made in full on such next Succeeding
Business Day.
SECTION 11.13. Governing Law
This Indenture and each Note shall be construed in accordance
with and governed by the laws of the State of New York applicable to agreements
made and to be performed therein.
SECTION 11.14. Counterparts
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument
SECTION 11.15. Recording of Indenture
This Indenture is subject to recording in any appropriate
public recording offices, such recording to be effected by the Issuer and at its
expense in compliance with any opinion of Counsel delivered pursuant to Section
2.12(l) or 3.06.
XI-5
103
SECTION 11.16. Issuer Obligations
No recourse may be taken, directly or indirectly, against (i)
the Owner Trustee in its individual capacity, (ii) any incorporator, subscriber
to the capital stock, stockholder, officer or director of the Owner Trustee or
of any predecessor or successor of the Owner Trustee in its individual capacity,
(iii) any holder of a beneficial interest in the Issuer, (iv) any partner,
beneficiary, agent, officer, director, employee, or successor or assign of a
holder of a beneficial interest in the Issuer, or (v) any incorporator,
subscriber to the capital stock, stockholder, officer, director or employee of
the Trustee or any predecessor or successor of the Trustee with respect to the
Issuer's obligations with respect to the Notes or the obligation of the Issuer
or the Trustee under this Indenture or any certificate or other writing
delivered in connection herewith or therewith.
SECTION 11.17. Inspection
The Issuer and the Note Registrar will agree that, on
reasonable prior notice, they will permit any representative of Trustee, during
normal business hours, to examine all of the books of account, records, reports
and other papers in its possession relating to the Notes, to make copies and
extracts therefrom in the case of the Issuer, to cause such books to be audited
by Independent Accountants selected by the Trustee, and to discuss its affairs,
finances and accounts with its officers, employees and Independent Accountants
(and by this provision the Issuer hereby authorizes its Independent Accountants
to discuss with such representatives such affairs, finances and accounts), all
at such reasonable times and as often as may be reasonably requested. Any
expense incident to the exercise by the Trustee of any right under this Section
11.17 shall be borne by the Issuer.
XI-6
104
IN WITNESS WHEREOF, the Owner Trustee on behalf of the Issuer
and the Trustee have caused this Indenture to be duly executed by their
respective officers thereunto duly authorized and the seal of the Owner Trustee
and of the Trustee to be hereunto affixed, all as of the day and year first
above written
[Trust]
By: , not in its individual
capacity, but solely as Owner Trustee of
[Trust]
By
--------------------------------------
Authorized Officer
as Trustee
By
--------------------------------------
Authorized Officer
105
STATE OF )
)SS.:
COUNTY OF )
On the ___ day of _______, ___, before me, a notary public in
and for said State, personally appeared _____________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
who executed the within instrument on behalf of one of the corporations therein
named, and acknowledged to me that such corporation executed it.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------
Notary Public
STATE OF )
)SS.:
COUNTY OF )
On the ____ day of ________, _____, before me, a notary public
in and for said State, personally appeared _________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
who executed the within instrument on behalf of one of the corporations therein
named, and acknowledged to me that such national banking association executed
it.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------
Notary Public
-1-
106
EXHIBIT A
[UNLESS THIS CLASS A-1 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.]
PRINCIPAL OF THIS CLASS A-1 NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS A-1 NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THE ACTUAL OUTSTANDING
PRINCIPAL AMOUNT OF THIS CLASS A-1 NOTE MAY BE ASCERTAINED ONLY BY OBTAINING A
WRITTEN CONFIRMATION THEREOF FROM THE TRUSTEE NAMED HEREIN. THE RIGHTS OF A
HOLDER OF THIS CLASS A-1 NOTE ARE SUBJECT TO THE PROVISIONS OF THE
WITHIN-REFERENCED INDENTURE.
A-1
107
[TRUST]
% ASSET BACKED NOTE, CLASS A-1
DUE:
ACCRUAL DATE:
$ No.
CUSIP NO.
[Trust] (the "Issuer"), a _______________ business trust
governed by a Trust Agreement dated as of __________, 199_ (the "Trust
Agreement"), for value received, hereby promises to pay to
______________________, the principal sum of ______________________ Dollars in
quarterly installments on _______, _______, ______, and __________ (the
"Principal Distribution Dates") in each year, commencing on ______, 199_ and
ending on or before ______, 20__ (the "Maturity" of such final installment of
principal) and to pay interest (computed on the basis of a 360-day year of
twelve 30-day months) on the unpaid principal amount of this Class A-1 Note
outstanding from time to time from ________, 199_ (the "Accrual Date"), or such
later date to which interest has been paid, until the principal amount of this
Class A-1 Note is paid in full, at the rate of
percent ( %) per annum, such interest being payable quarterly on
____________, ________, _________, and ________ in each year, commencing on
________, 199_ (the "Interest Distribution Dates"). Installments of principal of
this Class A-1 Note are due and payable in the amounts and on the dates
described on the reverse hereof.
The principal of, and interest on, this Class A-1 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 Class A-1 Note shall be applied first to
interest due and payable on this Class A-1 Note as provided above and then to
the unpaid principal of this Class A-1 Note. Any installment of principal or
interest which is not paid when and as due shall bear interest at the rate of
interest borne by the principal of this Class A-1 Note from the date due to the
date of payment thereof, but only to the extent that the payment of such
interest shall be lawful and enforceable.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Class A-1 Note shall not be
entitled to any benefit under the Indenture referred to below, or be valid or
obligatory for any purpose.
A-2
108
IN WITNESS WHEREOF, [Trust] has caused this instrument to be
duly executed by _________________________, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement.
Dated [TRUST]
By: _____________________, not in its
individual capacity but solely in
its capacity as Owner Trustee under
the Trust Agreement
By
------------------------------------
[Title]
A-3
109
This Class A-1 Note is one of a duly authorized issue of Notes
of the Issuer, designated as its % Asset Backed Notes, Class A-l (herein called
the "Class A-1 Notes"). The Class A-1 Notes are issued and will be issued under
an Indenture dated ------, 199- (herein called the "Indenture"), between the
Issuer and _____________________, as Trustee (the "Trustee", which term includes
any successor Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights thereunder of the Issuer, the Trustee and the Holders of the
Class A-1 Notes and the terms upon which the Class A-1 Notes are, and are to be,
authenticated and delivered. Also issued under the Indenture are the ____% Asset
Backed Notes, Class A-2, ____% Asset Backed Notes, Class A-3 and ____% Asset
Backed Notes, Class A-4. The Class A-1 Notes are secured by the collateral
pledged as security therefor to the extent provided in the Indenture. All terms
used in this Class A-1 Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
An installment of principal shall be paid on the Class A-1
Notes on each Principal Distribution Date in the amount equal to the amount
available to be paid thereon as principal pursuant to and subject to the
priorities set forth in Section 8.02(c) of the Indenture on such Principal
Distribution Date; provided that the unpaid principal amount of this Class A-1
Note shall be due and payable on the Principal Distribution Date in ____ 20__.
Each payment of principal of the Class A-1 Notes shall be allocated among the
Class A-1 Notes in proportion to their then remaining unpaid principal amounts.
The unpaid principal amount of this Class A-1 Note may be reduced by the
allocation to it (in accordance with Section 5.20 of the Indenture) of Class A-1
Realized Loss Amounts without any corresponding payment.
Payment of the then remaining unpaid principal amount of this
Class A-1 Note on the Maturity of its final installment of principal or on such
earlier date as the Issuer shall be required to apply payments received with
respect to the collateral securing the Class A-1 Notes to payment of the then
remaining unpaid principal amount of this Class A-1 Note or to payment of the
Redemption Price payable on any date as of which this Class A-1 Note has been
called for redemption in full shall be made upon presentation of this Class A-1
Note to the office or agency of the Issuer maintained for such purpose. Payments
of interest on this Class A-1 Note due and payable on each Interest Distribution
Date, together with any installment of principal of this Class A-1 Note due and
payable on each Interest Distribution Date which is also a Principal
Distribution Date for this Class A-1 Note, shall be made by check mailed to the
Person whose name appears as the registered Holder of this Class A-1 Note (or
one or more Predecessor Notes) in the Note Register as of the Record Date
preceding such Interest Distribution Date, except that with respect to a Class
A-1 Note registered in the name of the nominee of a clearing agency (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.
Checks for amounts due on this Class A-1 Note 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
Class A-1 Note be submitted for notation of
A-4
110
payment and checks returned undelivered will be held for payment to the Person
entitled thereto, subject to the terms of the Indenture, at the office or agency
in the United States of America designated by the Issuer for such purpose
pursuant to the Indenture. Any reduction in the principal amount of this Class
A-1 Note (or any one or more Predecessor Notes) effected by any payments made on
any Principal Distribution Date or by any allocation of a Class A-1 Realized
Loss Amount shall be binding upon all Holders of this Class A-1 Note and of any
Class A-1 Note issued upon the registration of transfer hereof or in exchange
herefor 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 then remaining unpaid principal amount of
this Class A-1 Note on a Principal Distribution Date which is prior to the
Maturity of the final installment of principal hereof, then the Trustee, on
behalf of the Issuer, will notify the Person who was the registered Holder
hereof on the 15th day of the month prior to the month in which such Principal
Distribution Date occurs, by notice mailed no later than ten days prior to such
Principal Distribution Date, and the amount then due and payable shall, if
sufficient funds therefor are available, be payable only upon presentation of
this Class A-1 Note to the office or agency of the Issuer maintained for such
purpose.
If an Event of Default shall occur and be continuing with
respect to the Class A-1 Notes, the Class A-1 Notes may become or be declared
due and payable in the manner and with the effect provided in the Indenture.
Reference is hereby made to Article V of the Indenture which sets forth certain
events which constitute Events of Default. If any such acceleration of maturity
occurs prior to the Maturity of the final installment of principal of this Class
A-1 Note, the amount payable to the Holder of this Class A-1 Note will be equal
to the aggregate unpaid principal amount of this Class A-1 Note on the date this
Class A-1 Note becomes so due and payable, together with accrued interest on
such unpaid principal amount to the date of payment thereof. The Indenture
provides that, notwithstanding the acceleration of the Maturity of the Class A-1
Notes, under certain circumstances specified therein all amounts collected as
proceeds of the collateral securing the Class A-1 Notes or otherwise shall
continue to be applied to payments of principal of and interest on the Class A-1
Notes as if they had not been declared due and payable. In such event, interest
on the then unpaid principal amount of all Class A-1 Notes and on any overdue
installments of interest on the Class A-1 Notes following the acceleration of
the Maturity of the Class A-1 Notes shall accrue and be payable at the
applicable Note Interest Rate, but only to the extent that the payment thereof
shall be lawful and enforceable.
The Class A-1 Notes are not prepayable or redeemable at the
option or direction of the Issuer except that all of the outstanding Notes may
be called for redemption in whole at the option of the Issuer on any
Distribution Date, if, either before or after giving effect to the payment of
principal otherwise required to be made on such Distribution Date, each Class of
Notes shall be in an aggregate Outstanding Principal Balance which is 10% or
less of the original principal amount of such Class of Notes, at 100% of the
outstanding principal amount thereof together with interest accrued and unpaid
to the date set for redemption.
A-5
111
As provided in the Indenture the transfer of this Class A-1
Note may be registered on the Note Register of the Issuer, upon surrender of
this Class A-1 Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations and in
the same aggregate initial principal amount will be issued to the designated
transferee or transferees.
Prior to the due presentment for registration of transfer of
this Class A-1 Note, the Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the Person in whose name this Class A-1 Note is registered (i)
on any Record Date, for purposes of making payments, and (ii) on any other date
for any other purpose, as the owner hereof, whether or not this Class A-1 Note
be overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by written notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Class A-1 Notes
under the Indenture at any time by the Issuer, and the Holders of Notes entitled
to more than 50% of the aggregate Voting Rights of all Classes voting together
as a single class. The Indenture also contains provisions that permit the
Holders of the percentage of the Class or Classes of Notes specified in Section
5.02 of the Indenture, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder, at the time of the giving thereof, of this Class A-1 Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future holders of this Class A-1 Note and of any Class A-1
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Class A-1 Note.
The term "Issuer" as used in this Class A-1 Note includes any
successor to the Issuer under the Indenture.
The Class A-1 Notes are issuable only in registered form in
the denominations provided in the Indenture and subject to certain limitations
therein set forth. The Class A-1 Notes are exchangeable for a like aggregate
initial principal amount of Class A-1 Notes of different authorized
denominations, as requested by the Holder surrendering the same, pursuant to the
terms and conditions set forth in the Indenture.
As provided in the Indenture, this Class A-1 Note and the
Indenture shall be construed in accordance with, and governed by, the laws of
the State of New York applicable to agreements made and to be performed therein.
No reference herein to the Indenture and no provision of this
Class A-1 Note or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and
A-6
112
unconditional, to pay the principal of and interest on this Class A-1 Note at
the times, place and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, neither the
Owner Trustee in its individual capacity, any beneficial owner of the Issuer,
the Trustee nor any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for the payment of
principal of and interest on, or performance of, or omission to perform, any of
the covenants, obligations or indemnifications contained in, this Class A-1 Note
or the Indenture, it being expressly understood that said covenants, obligations
and indemnifications have been made by the Owner Trustee for the sole purpose of
binding the respective interests of the beneficial owners of the Issuer and the
owner Trustee in the assets of the Issuer. The Holder of this Class A-1 Note by
the acceptance hereof agrees that in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and the enforcement against, the
assets of the Issuer of any and all liabilities, obligations and undertakings
contained in the Indenture or in this Class A-1 Note.
The Owner Trustee has executed this Class A-1 Note on behalf
of the Issuer, not in its individual capacity but solely as owner trustee under
the Trust Agreement and the Owner Trustee shall be liable hereunder only in
respect of the assets of the trust created by such Trust Agreement.
The remedies of the Holder hereof as provided herein and in
the Indenture, shall be cumulative and concurrent and may be pursued solely
against the assets of the Trust created by the Trust Agreement pledged under the
Indenture as security for the Class A-1 Notes. No failure on the part of the
Holder in exercising any right or remedy hereunder shall operate as a waiver or
release thereof, nor shall any single or partial exercise of any right or remedy
preclude any further exercise thereof or the exercise of any other right or
remedy hereunder.
A-7
113
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Notes referred to in the
within-mentioned Indenture.
as Trustee
By
--------------------------------
Authorized Signatory
A-8
114
EXHIBIT B
[UNLESS THIS CLASS A-2 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.]
PRINCIPAL OF THIS CLASS A-2 NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS A-2 NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THE ACTUAL OUTSTANDING
PRINCIPAL AMOUNT OF THIS CLASS A-2 NOTE MAY BE ASCERTAINED ONLY BY OBTAINING A
WRITTEN CONFIRMATION THEREOF FROM THE TRUSTEE NAMED HEREIN. THE RIGHTS OF A
HOLDER OF THIS CLASS A2 NOTE ARE SUBJECT TO THE PROVISIONS OF THE
WITHIN-REFERENCED INDENTURE.
THE RIGHTS OF THE CLASS A-2 NOTEHOLDERS TO RECEIVE PAYMENTS IN RESPECT OF
PRINCIPAL AND INTEREST ON THE CLASS A-2 NOTES ARE SUBORDINATE TO THE RIGHTS OF
THE CLASS A-1 NOTEHOLDERS TO RECEIVE PAYMENTS OF PRINCIPAL AND INTEREST.
B-1
115
[TRUST]
% ASSET BACKED NOTE, CLASS A-2
DUE:
ACCRUAL DATE:
$ No.
CUSIP NO.
[Trust] (the "Issuer"), a _________ business trust governed by
a Trust Agreement dated as of _________, 199_ (the "Trust Agreement"), for value
received, hereby promises to pay to ________________________, the principal sum
of _________________________ Dollars in quarterly installments on ____________,
___________, ___________, and ___________ (the "Principal Distribution Dates")
in each year, commencing on July1 , 1997 and ending on or before ________, 20__
(the "Maturity" of such final installment of principal) and to pay interest
(computed on the basis of a 360-day year of twelve 30-day months) on the unpaid
principal amount of this Class A-2 Note outstanding from time to time from
_____, 199_ (the "Accrual Date"), or such later date to which interest has been
paid, until the principal amount of this Class A-2 Note is paid in full, at the
rate of __________________ percent (____%) per annum, such interest being
payable quarterly on ______, _______, ______, and _________ in each year,
commencing on _______, 199_ (the "Interest Distribution Dates"). Installments of
principal of this Class A-2 Note are due and payable in the amounts and on the
dates described on the reverse hereof.
The principal of, and interest on, this Class A-2 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 Class A-2 Note shall he applied first to
interest due and payable on this Class A-2 Note as provided above and then to
the unpaid principal of this Class A-2 Note. Any installment of principal or
interest which is not paid when and as due shall bear interest at the rate of
interest borne by the principal of this Class A-2 Note from the date due to the
date of payment thereof, but only to the extent that the payment of such
interest shall be lawful and enforceable.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Class A-2 Note shall not be
entitled to any benefit under the Indenture referred to below, or be valid or
obligatory for any purpose.
B-2
116
IN WITNESS WHEREOF, [Trust] has caused this instrument to be
duly executed by ________________________, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement.
Dated: [TRUST]
By:___________________________, not in its
individual capacity but solely in its
capacity as Owner Trustee under the
Trust Agreement
By
--------------------------------------
[Title]
B-3
117
This Class A-2 Note is one of a duly authorized issue of Notes
of the Issuer, designated as its % Asset Backed Notes, Class A2 (herein called
the "Class A-2 Notes"). The Class A-2 Notes are issued and will be issued under
an Indenture dated , 199_ (herein called the "Indenture"), between the Issuer
and ______________________, as Trustee (the "Trustee", which term includes any
successor Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights thereunder of the Issuer, the Trustee and the Holders of the Class A-2
Notes and the terms upon which the Class A-2 Notes are, and are to be,
authenticated and delivered. Also issued under the Indenture are the ____% Asset
Backed Notes, Class A-1, ____% Asset Backed Notes, Class A-3 and ____% Asset
Backed Notes, Class A-4. The Class A-2 Notes are secured by the collateral
pledged as security therefor to the extent provided in the Indenture. All terms
used in this Class A-2 Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
An installment of principal shall be paid on the Class A-2
Notes on each Principal Distribution Date in the amount equal to the amount
available to be paid thereon as principal pursuant to and subject to the
priorities set forth in Section 8.02(c) of the Indenture on such Principal
Distribution Date; provided that the unpaid principal amount of this Class A-2
Note shall be due and payable on the Principal Distribution Date in ____ 20__.
Each payment of principal of the Class A-2 Notes shall be allocated among the
Class A-2 Notes in proportion to their then remaining unpaid principal amounts.
The unpaid principal amount of this Class A-2 Note may be reduced by the
allocation to it (in accordance with Section 5.20 of the Indenture) of Class A-2
Realized Loss Amounts without any corresponding payment.
The rights of the Class A-2 Noteholders to receive payments in
respect of principal and interest on the Class A-2 Notes are subordinate to the
rights of the Class A-1 Noteholders to receive payments of principal and
interest.
Payment of the then remaining unpaid principal amount of this
Class A-2 Note on the Maturity of its final installment of principal or on such
earlier date as the Issuer shall be required to apply payments received with
respect to the collateral securing the Class A-2 Notes to payment of the then
remaining unpaid principal amount of this Class A-2 Note or to payment of the
Redemption Price payable on any date as of which this Class A-2 Note has been
called for redemption in full shall be made upon presentation of this Class A-2
Note to the office or agency of the Issuer maintained for such purpose. Payments
of interest on this Class A-2 Note due and payable on each Interest Distribution
Date, together with any installment of principal of this Class A-2 Note due and
payable on each Interest Distribution Date which is also a Principal
Distribution Date for this Class A-2 Note, shall be made by check mailed to the
Person whose name appears as the registered Holder of this Class A-2 Note (or
one or more Predecessor Notes) in the Note Register as of the Record Date
preceding such Interest Distribution Date, except that with respect to a Class
A-2 Note registered in the name of the nominee of a clearing agency (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.
B-4
118
Checks for amounts due on this Class A-2 Note 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
Class A-2 Note be submitted for notation of payment and checks returned
undelivered will be held for payment to the Person entitled thereto, subject to
the terms of the Indenture, at the office or agency in the United States of
America designated by the Issuer for such purpose pursuant to the Indenture. Any
reduction in the principal amount of this Class A-2 Note (or any one or more
Predecessor Notes) effected by any payments made on any Principal Distribution
Date or by any allocation of a Class A-2 Realized Loss Amount shall be binding
upon all Holders of this Class A-2 Note and of any Class A-2 Note issued upon
the registration of transfer hereof or in exchange herefor 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 then remaining unpaid principal amount of
this Class A-2 Note on a Principal Distribution Date which is prior to the
Maturity of the final installment of principal hereof, then the Trustee, on
behalf of the Issuer, will notify the Person who was the registered Holder
hereof on the 15th day of the month prior to the month in which such Principal
Distribution Date occurs, by notice mailed no later than ten days prior to such
Principal Distribution Date, and the amount then due and payable shall, if
sufficient funds therefor are available, be payable only upon presentation of
this Class A-2 Note to the office or agency of the Issuer maintained for such
purpose.
If an Event of Default shall occur and be continuing with
respect to the Class A-2 Notes, the Class A-2 Notes may become or be declared
due and payable in the manner and with the effect provided in the Indenture.
Reference is hereby made to Article V of the Indenture which sets forth certain
events which constitute Events of Default. If any such acceleration of maturity
occurs prior to the Maturity of the final installment of principal of this Class
A-2 Note, the amount payable to the Holder of this Class A-2 Note will be equal
to the aggregate unpaid principal amount of this Class A-2 Note on the date this
Class A-2 Note becomes so due and payable, together with accrued interest on
such unpaid principal amount to the date of payment thereof. The Indenture
provides that, notwithstanding the acceleration of the Maturity of the Class A-2
Notes, under certain circumstances specified therein all amounts collected as
proceeds of the collateral securing the Class A-2 Notes or otherwise shall
continue to be applied to payments of principal of and interest on the Class A-2
Notes as if they had not been declared due and payable. In such event, interest
on the then unpaid principal amount of all Class A-2 Notes and on any overdue
installments of interest on the Class A-2 Notes following the acceleration of
the Maturity of the Class A-2 Notes shall accrue and be payable at the
applicable Note Interest Rate, but only to the extent that the payment thereof
shall be lawful and enforceable.
The Class A-2 Notes are not prepayable or redeemable at the
option or direction of the Issuer except that all of the outstanding Notes may
be called for redemption in whole at the option of the Issuer on any
Distribution Date, if, either before or after giving effect to the payment of
principal otherwise required to be made on such Distribution Date, each Class of
Notes shall be in an aggregate Outstanding Principal Balance which is 10% or
less of the
B-5
119
original principal amount of such Class of Notes, at 100% of the outstanding
principal amount thereof together with interest accrued and unpaid to the date
set for redemption.
As provided in the Indenture the transfer of this Class A-2
Note may be registered on the Note Register of the Issuer, upon surrender of
this Class A-2 Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations and in
the same aggregate initial principal amount will be issued to the designated
transferee or transferees.
Prior to the due presentment for registration of transfer of
this Class A-2 Note, the Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the Person in whose name this Class A-2 Note is registered (i)
on any Record Date, for purposes of making payments, and (ii) on any other date
for any other purpose, as the owner hereof, whether or not this Class A-2 Note
be overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by written notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Class A-2 Notes
under the Indenture at any time by the Issuer, and the Holders of Notes entitled
to more than 50% of the aggregate Voting Rights of all Classes voting together
as a single class. The Indenture also contains provisions that permit the
Holders of the percentage of the Class or Classes of Notes specified in Section
5.02 of the Indenture, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder, at the time of the giving thereof, of this Class A-2 Note
(or any one or more Predecessor Notes) shall be conclusive and binding upon such
Holder and upon all future holders of this Class A-2 Note and of any Class A-2
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Class A-2 Note.
The term "Issuer" as used in this Class A-2 Note includes any
successor to the Issuer under the Indenture.
The Class A-2 Notes are issuable only in registered form in
the denominations provided in the Indenture and subject to certain limitations
therein set forth. The Class A-2 Notes are exchangeable for a like aggregate
initial principal amount of Class A-2 Notes of different authorized
denominations, as requested by the Holder surrendering the same, pursuant to the
terms and conditions set forth in the Indenture.
As provided in the Indenture, this Class A-2 Note and the
Indenture shall be construed in accordance with, and governed by, the laws of
the State of New York applicable to agreements made and to be performed therein.
B-6
120
No reference herein to the Indenture and no provision of this
Class A-2 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 Class A-2 Note at the times, place and rate, and in the coin or
currency, herein prescribed.
Anything herein to the contrary notwithstanding, neither the
Owner Trustee in its individual capacity, any beneficial owner of the Issuer,
the Trustee nor any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for the payment of
principal of and interest on, or performance of, or omission to perform, any of
the covenants, obligations or indemnifications contained in, this Class A-2 Note
or the Indenture, it being expressly understood that said covenants, obligations
and indemnifications have been made by the owner Trustee for the sole purpose of
binding the respective interests of the beneficial owners of the Issuer and the
Owner Trustee in the assets of the Issuer. The Holder of this Class A-2 Note by
the acceptance hereof agrees that in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and the enforcement against, the
assets of the Issuer of any and all liabilities, obligations and undertakings
contained in the Indenture or in this Class A-2 Note.
The Owner Trustee has executed this Class A-2 Note on behalf
of the Issuer, not in its individual capacity but solely as owner trustee under
the Trust Agreement and the Owner Trustee shall be liable hereunder only in
respect of the assets of the trust created by such Trust Agreement.
The remedies of the Holder hereof as provided herein and in
the Indenture, shall be cumulative and concurrent and may be pursued solely
against the assets of the Trust created by the Trust Agreement pledged under the
Indenture as security for the Class A-2 Notes. No failure on the part of the
Holder in exercising any right or remedy hereunder shall operate as a waiver or
release thereof, nor shall any single or partial exercise of any right or remedy
preclude any further exercise thereof or the exercise of any other right or
remedy hereunder.
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121
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Notes referred to in the
within-mentioned Indenture.
as Trustee
By
-------------------------
Authorized Signatory
B-8
122
EXHIBIT C
[UNLESS THIS CLASS A-3 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.]
PRINCIPAL OF THIS CLASS A-3 NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS A-3 NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THE ACTUAL OUTSTANDING
PRINCIPAL AMOUNT OF THIS CLASS A-3 NOTE MAY BE ASCERTAINED ONLY BY OBTAINING A
WRITTEN CONFIRMATION THEREOF FROM THE TRUSTEE NAMED HEREIN. THE RIGHTS OF A
HOLDER OF THIS CLASS A3 NOTE ARE SUBJECT TO THE PROVISIONS OF THE
WITHIN-REFERENCED INDENTURE.
THE RIGHTS OF THE CLASS A-3 NOTEHOLDERS TO RECEIVE PAYMENTS IN RESPECT
OF PRINCIPAL AND INTEREST ON THE CLASS A-3 NOTES ARE SUBORDINATE TO THE RIGHTS
OF THE CLASS A-1 NOTEHOLDERS AND CLASS A-2 NOTEHOLDERS TO RECEIVE PAYMENTS OF
PRINCIPAL AND INTEREST.
C-1
123
[TRUST]
7.54% ASSET BACKED NOTE, CLASS A-3
DUE:
ACCRUAL DATE:
$ No.
CUSIP NO.
[Trust] (the "Issuer"), a business trust governed by a Trust
Agreement dated as of , 199_ (the "Trust Agreement"), for value
received, hereby promises to pay to
________________________, the principal sum of _______________________ Dollars
in quarterly installments on ________, _______, ______, and _________ (the
"Principal Distribution Dates") in each year, commencing on , 199_ and ending
on or before , 20__ (the "Maturity" of such final installment of principal) and
to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) on the unpaid principal amount of this Class A-3 Note outstanding from
time to time from , 199_ (the "Accrual Date"), or such later date to which
interest has been paid, until the principal amount of this Class A-3 Note is
paid in full, at the rate of percent ( %) per annum, such interest being
payable quarterly on _______, _______, _______, and _________ in each year,
commencing on ________, 199_ (the "Interest Distribution Dates"). Installments
of principal of this Class A-3 Note are due and payable in the amounts and on
the dates described on the reverse hereof.
The principal of, and interest on, this Class A-3 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 Class A-3 Note shall be applied first to
interest due and payable on this Class A-3 Note as provided above and then to
the unpaid principal of this Class A-3 Note. Any installment of principal or
interest which is not paid when and as due shall bear interest at the rate of
interest borne by the principal of this Class A-3 Note from the date due to the
date of payment thereof, but only to the extent that the payment of such
interest shall be lawful and enforceable.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Class A-3 Note shall not be
entitled to any benefit under the Indenture referred to below, or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, [Trust] has caused this instrument to be
duly executed by ______________________, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement.
Dated [TRUST]
By:________________________, not in its
individual capacity but solely in its
capacity as Owner Trustee under the
Trust Agreement
By
--------------------------------------
[Title]
C-3
125
This Class A-3 Note is one of a duly authorized issue of Notes
of the Issuer, designated as its 7.54% Asset Backed Notes, Class A-3 (herein
called the "Class A-3 Notes"). The Class A-3 Notes are issued and will be issued
under an Indenture dated , 199_ (herein called the "Indenture"), between the
Issuer and _____________________, as Trustee (the "Trustee", which term includes
any successor Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights thereunder of the Issuer, the Trustee and the Holders of the
Class A-3 Notes and the terms upon which the Class A-3 Notes are, and are to be,
authenticated and delivered. Also issued under the Indenture are the % Asset
Backed Notes, Class A-1, % Asset Backed Notes, Class A-2 and % Asset Backed
Notes, Class A-4. The Class A-3 Notes are secured by the collateral pledged as
security therefor to the extent provided in the Indenture. All terms used in
this Class A-3 Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
An installment of principal shall be paid on the Class A-3
Notes on each Principal Distribution Date in the amount equal to the amount
available to be paid thereon as principal pursuant to and subject to the
priorities set forth in Section 8.02(c) of the Indenture on such Principal
Distribution Date; provided that the unpaid principal amount of this Class A-3
Note shall be due and payable on the Principal Distribution Date in July 2035.
Each payment of principal of the Class A-3 Notes shall be allocated among the
Class A-3 Notes in proportion to their then remaining unpaid principal amounts.
The unpaid principal amount of this Class A-3 Note may be reduced by the
allocation to it (in accordance with Section 5.20 of the Indenture) of Class A-3
Realized Loss Amounts without any corresponding payment.
The rights of the Class A-3 Noteholders to receive payments in
respect of principal and interest on the Class A-3 Notes are subordinate to the
rights of the Class A-1 Noteholders and Class A2 Noteholders to receive payments
of principal and interest.
Payment of the then remaining unpaid principal amount of this
Class A-3 Note on the Maturity of its final installment of principal or on such
earlier date as the Issuer shall be required to apply payments received with
respect to the collateral securing the Class A-3 Notes to payment of the then
remaining unpaid principal amount of this Class A-3 Note or to payment of the
Redemption Price payable on any date as of which this Class A-3 Note has been
called for redemption in full shall be made upon presentation of this Class A-3
Note to the office or agency of the Issuer maintained for such purpose. Payments
of interest on this Class A-3 Note due and payable on each Interest Distribution
Date, together with any installment of principal of this Class A-3 Note due and
payable on each Interest Distribution Date which is also a Principal
Distribution Date for this Class A-3 Note, shall be made by check mailed to the
Person whose name appears as the registered Holder of this Class A-3 Note (or
one or more Predecessor Notes) in the Note Register as of the Record Date
preceding such Interest Distribution Date, except that with respect to a Class
A-3 Note registered in the name of the nominee of a clearing agency (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.
C-4
126
Checks for amounts due on this Class A-3 Note 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
Class A-3 Note be submitted for notation of payment and checks returned
undelivered will be held for payment to the Person entitled thereto, subject to
the terms of the Indenture, at the office or agency in the United States of
America designated by the Issuer for such purpose pursuant to the Indenture. Any
reduction in the principal amount of this Class A-3 Note (or any one or more
Predecessor Notes) effected by any payments made on any Principal Distribution
Date or by any allocation of a Class A-3 Realized Loss Amount shall be binding
upon all Holders of this Class A-3 Note and of any Class A-3 Note issued upon
the registration of transfer hereof or in exchange herefor 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 then remaining unpaid principal amount of
this Class A-3 Note on a Principal Distribution Date which is prior to the
Maturity of the final installment of principal hereof, then the Trustee, on
behalf of the Issuer, will notify the Person who was the registered Holder
hereof on the 15th day of the month prior to the month in which such Principal
Distribution Date occurs, by notice mailed no later than ten days prior to such
Principal Distribution Date, and the amount then due and payable shall, if
sufficient funds therefor are available, be payable only upon presentation of
this Class A-3 Note to the office or agency of the Issuer maintained for such
purpose.
If an Event of Default shall occur and be continuing with
respect to the Class A-3 Notes, the Class A-3 Notes may become or be declared
due and payable in the manner and with the effect provided in the Indenture.
Reference is hereby made to Article V of the Indenture which sets forth certain
events which constitute Events of Default. If any such acceleration of maturity
occurs prior to the Maturity of the final installment of principal of this Class
A-3 Note, the amount payable to the Holder of this Class A-3 Note will be equal
to the aggregate unpaid principal amount of this Class A-3 Note on the date this
Class A-3 Note becomes so due and payable, together with accrued interest on
such unpaid principal amount to the date of payment thereof. The Indenture
provides that, notwithstanding the acceleration of the Maturity of the Class A-3
Notes, under certain circumstances specified therein all amounts collected as
proceeds of the collateral securing the Class A-3 Notes or otherwise shall
continue to be applied to payments of principal of and interest on the Class A-3
Notes as if they had not been declared due and payable. In such event, interest
on the then unpaid principal amount of all Class A-3 Notes and on any overdue
installments of interest on the Class A-3 Notes following the acceleration of
the Maturity of the Class A-3 Notes shall accrue and be payable at the
applicable Note Interest Rate, but only to the extent that the payment thereof
shall be lawful and enforceable.
The Class A-3 Notes are not prepayable or redeemable at the
option or direction of the Issuer except that all of the outstanding Notes may
be called for redemption in whole at the option of the Issuer on any
Distribution Date, if, either before or after giving effect to the payment of
principal otherwise required to be made on such Distribution Date, each Class of
Notes shall be in an aggregate Outstanding Principal Balance which is 10% or
less of the
C-5
127
original principal amount of such Class of Notes, at 100% of the outstanding
principal amount thereof together with interest accrued and unpaid to the date
set for redemption.
As provided in the Indenture the transfer of this Class A-3
Note may be registered on the Note Register of the Issuer, upon surrender of
this Class A-3 Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations and in
the same aggregate initial principal amount will be issued to the designated
transferee or transferees.
Prior to the due presentment for registration of transfer of
this Class A-3 Note, the Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the Person in whose name this Class A-3 Note is registered (i)
on any Record Date, for purposes of making payments, and (ii) on any other date
for any other purpose, as the owner hereof, whether or not this Class A-3 Note
be overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by written notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Class A-3 Notes
under the Indenture at any time by the Issuer, and the Holders of Notes entitled
to more than 50% of the aggregate Voting Rights of all Classes voting together
as a single class at the time Outstanding. The Indenture also contains
provisions that permit the Holders of the percentage of the Class or Classes of
Notes specified in Section 5.02 of the Indenture, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder, at the time of the giving thereof, of
this Class A-3 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future holders of this Class A-3 Note
and of any Class A-3 Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class A-3 Note.
The term "Issuer" as used in this Class A-3 Note includes any
successor to the Issuer under the Indenture.
The Class A-3 Notes are issuable only in registered form in
the denominations provided in the Indenture and subject to certain limitations
therein set forth. The Class A-3 Notes are exchangeable for a like aggregate
initial principal amount of Class A-3 Notes of different authorized
denominations, as requested by the Holder surrendering the same, pursuant to the
terms and conditions set forth in the Indenture.
As provided in the Indenture, this Class A-3 Note and the
Indenture shall be construed in accordance with, and governed by, the laws of
the State of New York applicable to agreements made and to be performed therein.
C-6
128
No reference herein to the Indenture and no provision of this
Class A-3 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 Class A-3 Note at the times, place and rate, and in the coin or
currency, herein prescribed.
Anything herein to the contrary notwithstanding, neither the
Owner Trustee in its individual capacity, any beneficial owner of the Issuer,
the Trustee nor any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for the payment of
principal of and interest on, or performance of, or omission to perform, any of
the covenants, obligations or indemnifications contained in, this Class A-3 Note
or the Indenture, it being expressly understood that said covenants, obligations
and indemnifications have been made by the Owner Trustee for the sole purpose of
binding the respective interests of the beneficial owners of the Issuer and the
Owner Trustee in the assets of the Issuer. The Holder of this Class A-3 Note by
the acceptance hereof agrees that in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and the enforcement against, the
assets of the Issuer of any and all liabilities, obligations and undertakings
contained in the Indenture or in this Class A-3 Note.
The Owner Trustee has executed this Class A-3 Note on behalf
of the Issuer, not in its individual capacity but solely as owner trustee under
the Trust Agreement and the Owner Trustee shall be liable hereunder only in
respect of the assets of the trust created by such Trust Agreement.
The remedies of the Holder hereof as provided herein and in
the Indenture, shall be cumulative and concurrent and may be pursued solely
against the assets of the Trust created by the Trust Agreement pledged under the
Indenture as security for the Class A-3 Notes. No failure on the part of the
Holder in exercising any right or remedy hereunder shall operate as a waiver or
release thereof, nor shall any single or partial exercise of any right or remedy
preclude any further exercise thereof or the exercise of any other right or
remedy hereunder.
C-7
129
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Notes referred to in the
within-mentioned Indenture.
as Trustee
By
------------------------------
Authorized Signatory
C-8
130
EXHIBIT D
[UNLESS THIS CLASS A-4 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.]
PRINCIPAL OF THIS CLASS A-4 NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CLASS A-4 NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THE ACTUAL OUTSTANDING
PRINCIPAL AMOUNT OF THIS CLASS A-4 NOTE MAY BE ASCERTAINED ONLY BY OBTAINING A
WRITTEN CONFIRMATION THEREOF FROM THE TRUSTEE NAMED HEREIN. THE RIGHTS OF A
HOLDER OF THIS CLASS A4 NOTE ARE SUBJECT TO THE PROVISIONS OF THE
WITHIN-REFERENCED INDENTURE.
THE RIGHTS OF THE CLASS A-4 NOTEHOLDERS TO RECEIVE PAYMENTS IN RESPECT OF
PRINCIPAL AND INTEREST ON THE CLASS A-4 NOTES ARE SUBORDINATE TO THE RIGHTS OF
THE CLASS A-1 NOTEHOLDERS, CLASS A-2 NOTEHOLDERS AND CLASS A-3 NOTEHOLDERS TO
RECEIVE PAYMENTS OF PRINCIPAL AND INTEREST.
D-1
131
[TRUST]
% ASSET BACKED NOTE, CLASS A-4
DUE:
ACCRUAL DATE:
$ No.
CUSIP NO.
[Trust] (the "Issuer"), a business trust governed by a Trust
Agreement dated as of , 199_ (the "Trust Agreement"), for value received, hereby
promises to pay to Cede & Co. or registered assigns, the principal sum of
_______________________ Dollars in quarterly installments on _________,
__________, _________, and ___________ (the "Principal Distribution Dates") in
each year, commencing on , 199_ and ending on or before , 20__ (the "Maturity"
of such final installment of principal) and to pay interest (computed on the
basis of a 360-day year of twelve 30-day months) on the unpaid principal amount
of this Class A-4 Note outstanding from time to time from _________, 199_ (the
"Accrual Date"), or such later date to which interest has been paid, until the
principal amount of this Class A-4 Note is paid in full, at the rate of seven
and seventy-nine hundredths percent (7.79%) per annum, such interest being
payable quarterly on ________, _________, ________, and __________ in each year,
commencing on , 199_ (the "Interest Distribution Dates"). Installments of
principal of this Class A-4 Note are due and payable in the amounts and on the
dates described on the reverse hereof.
The principal of, and interest on, this Class A-4 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 Class A-4 Note shall be applied first to
interest due and payable on this Class A-4 Note as provided above and then to
the unpaid principal of this Class A-4 Note. Any installment of principal or
interest which is not paid when and as due shall bear interest at the rate of
interest borne by the principal of this Class A-4 Note from the date due to the
date of payment thereof, but only to the extent that the payment of such
interest shall be lawful and enforceable.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Class A-4 Note shall not be
entitled to any benefit under the Indenture referred to below, or be valid or
obligatory for any purpose.
D-2
132
IN WITNESS WHEREOF, [Trust] has caused this instrument to be
duly executed by __________________________, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement.
Dated [TRUST]
By: _______________________, not in its
individual capacity but solely in
its capacity as Owner Trustee
under the Trust Agreement
By
------------------------------------
[Title]
D-3
133
This Class A-4 Note is one of a duly authorized issue of Notes
of the Issuer, designated as its % Asset Backed Notes, Class A4 (herein
called the "Class A-4 Notes"). The Class A-4 Notes are issued and
will be issued under an Indenture dated , 199_ (herein called the "Indenture"),
between the Issuer and __________________, as Trustee (the "Trustee", which term
includes any successor Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights thereunder of the Issuer, the Trustee and the Holders of the
Class A-4 Notes and the terms upon which the Class A-4 Notes are, and are to be,
authenticated and delivered. Also issued under the Indenture are the % Asset
Backed Notes, Class A-1, % Asset Backed Notes, A-2 and % Asset Backed Notes,
Class A-3. The Class A-4 Notes are secured by the collateral pledged as security
therefor to the extent provided in the Indenture. All terms used in this Class
A-4 Note which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
An installment of principal shall be paid on the Class A-4
Notes on each Principal Distribution Date in the amount equal to the amount
available to be paid thereon as principal pursuant to and subject to the
priorities set forth in Section 8.02(c) of the Indenture on such Principal
Distribution Date; provided that the unpaid principal amount of this Class A-4
Note shall be due and payable on the Principal Distribution Date in
20__. Each payment of principal of the Class A-4 Notes shall be allocated
among the Class A-4 Notes in proportion to their then remaining unpaid principal
amounts. The unpaid principal amount of this Class A-4 Note may be reduced by
the allocation to it (in accordance with Section 5.20 of the Indenture) of Class
A-4 Realized Loss Amounts without any corresponding payment.
The rights of the Class A-4 Noteholders to receive payments in
respect of principal and interest on the Class A-4 Notes are subordinate to the
rights of the Class A-1 Noteholders, Class A-2 Noteholders and Class A-3
Noteholders to receive payments of principal and interest.
Payment of the then remaining unpaid principal amount of this
Class A-4 Note on the Maturity of its final installment of principal or on such
earlier date as the Issuer shall be required to apply payments received with
respect to the collateral securing the Class A-4 Notes to payment of the then
remaining unpaid principal amount of this Class A-4 Note or to payment of the
Redemption Price payable on any date as of which this Class A-4 Note has been
called for redemption in full shall be made upon presentation of this Class A-4
Note to the office or agency of the Issuer maintained for such purpose. Payments
of interest on this Class A-4 Note due and payable on each Interest Distribution
Date, together with any installment of principal of this Class A-4 Note due and
payable on each Interest Distribution Date which is also a Principal
Distribution Date for this Class A-4 Note, shall be made by check mailed to the
Person whose name appears as the registered Holder of this Class A-4 Note (or
one or more Predecessor Notes) in the Note Register as of the Record Date
preceding such Interest Distribution Date, except that with respect to a Class
A-4 Note registered in the name of the nominee of a clearing agency (initially,
such nominee to be Cede & Co.)
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payments will be made by wire transfer in immediately available funds to the
account designated by such nominee.
Checks for amounts due on this Class A-4 Note 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
Class A-4 Note be submitted for notation of payment and checks returned
undelivered will be held for payment to the Person entitled thereto, subject to
the terms of the Indenture, at the office or agency in the United States of
America designated by the Issuer for such purpose pursuant to the Indenture. Any
reduction in the principal amount of this Class A-4 Note (or any one or more
Predecessor Notes) effected by any payments made on any Principal Distribution
Date or by any allocation of a Class A-4 Realized Loss Amount shall be binding
upon all Holders of this Class A-4 Note and of any Class A-4 Note issued upon
the registration of transfer hereof or in exchange herefor 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 then remaining unpaid principal amount of
this Class A-4 Note on a Principal Distribution Date which is prior to the
Maturity of the final installment of principal hereof, then the Trustee, on
behalf of the Issuer, will notify the Person who was the registered Holder
hereof on the 15th day of the month prior to the month in which such Principal
Distribution Date occurs, by notice mailed no later than ten days prior to such
Principal Distribution Date, and the amount then due and payable shall, if
sufficient funds therefor are available, be payable only upon presentation of
this Class A-4 Note to the office or agency of the Issuer maintained for such
purpose.
If an Event of Default shall occur and be continuing with
respect to the Class A-4 Notes, the Class A-4 Notes may become or be declared
due and payable in the manner and with the effect provided in the Indenture.
Reference is hereby made to Article V of the Indenture which sets forth certain
events which constitute Events of Default. If any such acceleration of maturity
occurs prior to the Maturity of the final installment of principal of this Class
A-4 Note, the amount payable to the Holder of this Class A-4 Note will be equal
to the aggregate unpaid principal amount of this Class A-4 Note on the date this
Class A-4 Note becomes so due and payable, together with accrued interest on
such unpaid principal amount to the date of payment thereof. The Indenture
provides that, notwithstanding the acceleration of the Maturity of the Class A-4
Notes, under certain circumstances specified therein all amounts collected as
proceeds of the collateral securing the Class A-4 Notes or otherwise shall
continue to be applied to payments of principal of and interest on the Class A-4
Notes as if they had not been declared due and payable. In such event, interest
on the then unpaid principal amount of all Class A-4 Notes and on any overdue
installments of interest on the Class A-4 Notes following the acceleration of
the Maturity of the Class A-4 Notes shall accrue and be payable at the
applicable Note Interest Rate, but only to the extent that the payment thereof
shall be lawful and enforceable.
The Class A-4 Notes are not prepayable or redeemable at the
option or direction of the Issuer except that all of the outstanding Notes may
be called for redemption in whole at
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the option of the Issuer on any Distribution Date, if, either before or after
giving effect to the payment of principal otherwise required to be made on such
Distribution Date, each Class of Notes shall be in an aggregate Outstanding
Principal Balance which is 10% or less of the original principal amount of such
Class of Notes, at 100% of the outstanding principal amount thereof together
with interest accrued and unpaid to the date set for redemption.
As provided in the Indenture the transfer of this Class A-4
Note may be registered on the Note Register of the Issuer, upon surrender of
this Class A-4 Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations and in
the same aggregate initial principal amount will be issued to the designated
transferee or transferees.
Prior to the due presentment for registration of transfer of
this Class A-4 Note, the Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the Person in whose name this Class A-4 Note is registered (i)
on any Record Date, for purposes of making payments, and (ii) on any other date
for any other purpose, as the owner hereof, whether or not this Class A-4 Note
be overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by written notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Class A-4 Notes
under the Indenture at any time by the Issuer, and the Holders of Notes entitled
to more than 50% of the aggregate Voting Rights of all Classes voting together
as a single class at the time Outstanding. The Indenture also contains
provisions that permit the Holders of the percentage of the Class or Classes of
Notes specified in Section 5.02 of the Indenture, on behalf of the Holders of
all the Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder, at the time of the giving thereof, of
this Class A-4 Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future holders of this Class A-4 Note
and of any Class A-4 Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Class A-4 Note.
The term "Issuer" as used in this Class A-4 Note includes any
successor to the Issuer under the Indenture.
The Class A-4 Notes are issuable only in registered form in
the denominations provided in the Indenture and subject to certain limitations
therein set forth. The Class A-4 Notes are exchangeable for a like aggregate
initial principal amount of Class A-4 Notes of different authorized
denominations, as requested by the Holder surrendering the same, pursuant to the
terms and conditions set forth in the Indenture.
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As provided in the Indenture, this Class A-4 Note and the
Indenture shall be construed in accordance with, and governed by, the laws of
the State of New York applicable to agreements made and to be performed therein.
No reference herein to the Indenture and no provision of this
Class A-4 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 Class A-4 Note at the times, place and rate, and in the coin or
currency, herein prescribed.
Anything herein to the contrary notwithstanding, neither the
Owner Trustee in its individual capacity, any beneficial owner of the Issuer,
the Trustee nor any of their respective partners, beneficiaries, agents,
officers, directors, employees or successors or assigns shall be personally
liable for, nor shall recourse be had to any of them for the payment of
principal of and interest on, or performance of, or omission to perform, any of
the covenants, obligations or indemnifications contained in, this Class A-4 Note
or the Indenture, it being expressly understood that said covenants, obligations
and indemnifications have been made by the Owner Trustee for the sole purpose of
binding the respective interests of the beneficial owners of the Issuer and the
owner Trustee in the assets of the Issuer. The Holder of this Class A-4 Note by
the acceptance hereof agrees that in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the foregoing for any
deficiency, loss or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and the enforcement against, the
assets of the Issuer of any and all liabilities, obligations and undertakings
contained in the Indenture or in this Class A-4 Note.
The Owner Trustee has executed this Class A-4 Note on behalf
of the Issuer, not in its individual capacity but solely as owner trustee under
the Trust Agreement and the Owner Trustee shall be liable hereunder only in
respect of the assets of the trust created by such Trust Agreement.
The remedies of the Holder hereof as provided herein and in
the Indenture, shall be cumulative and concurrent and may be pursued solely
against the assets of the Trust created by the Trust Agreement pledged under the
Indenture as security for the Class A-4 Notes. No failure on the part of the
Holder in exercising any right or remedy hereunder shall operate as a waiver or
release thereof, nor shall any single or partial exercise of any right or remedy
preclude any further exercise thereof or the exercise of any other right or
remedy hereunder.
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Notes referred to in the
within-mentioned Indenture.
,
as Trustee
By
-----------------------------------
Authorized Signatory