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EXHIBIT 4.3
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INDENTURE
BETWEEN
DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A,
AS ISSUER,
AND
CITIBANK, N.A.,
AS INDENTURE TRUSTEE
DATED AS OF NOVEMBER 1, 1998
$360,000,000 [ ] % CLASS A-1 ASSET BACKED NOTES
$508,000,000 [ ] % CLASS A-2 ASSET BACKED NOTES
$440,000,000 [ ] % CLASS A-3 ASSET BACKED NOTES
$241,800,000 [ ] % CLASS A-4 ASSET BACKED NOTES
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CROSS REFERENCE TABLE(1)
TIA INDENTURE
SECTION SECTION
------- -------------
310 (a)(1)...................................................... 6.11
(a)(2)...................................................... 6.11
(a)(3)...................................................... 6.10
(a)(4)...................................................... N.A.(2)
(a)(5)...................................................... 6.11
(b)......................................................... 6.8; 6.11
(c)......................................................... N.A.
311 (a)......................................................... 6.12
(b)......................................................... 6.12
(c)......................................................... N.A.
312 (a)......................................................... 7.1
(b)......................................................... 7.2
(c)......................................................... 7.2
313 (a)......................................................... 7.4
(b)(1)...................................................... 7.4
(b)(2)...................................................... 7.4; 11.5
(c)......................................................... 7.4
(d)......................................................... 7.3
314 (a)......................................................... 7.3
(b)......................................................... 11.15
(c)(1)...................................................... 11.1
(c)(2)...................................................... 11.1
(c)(3)...................................................... 11.1
(d)......................................................... 11.1
(e)......................................................... 11.1
(f)......................................................... 11.1
315 (a)......................................................... 6.1
(b)......................................................... 6.5; 11.5
(c)......................................................... 6.1
(d)......................................................... 6.1
(e)......................................................... 5.13
316 (a) (last sentence)......................................... 1.1
(a)(1)(A)................................................... 5.11
(a)(1)(B)................................................... 5.12
(a)(2)...................................................... N.A.
(b)......................................................... 5.7
(c)......................................................... N.A
317 (a)(1)...................................................... 5.3
(a)(2)...................................................... 5.3
(b)......................................................... 3.3
318 (a)......................................................... 11.7
---------------
(1) Note: This Cross Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
(2) N.A. means Not Applicable.
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE................................. 2
SECTION 1.1 Definitions................................................. 2
SECTION 1.2 Incorporation by Reference of Trust Indenture Act........... 8
SECTION 1.3 Rules of Construction....................................... 8
ARTICLE II
THE NOTES.................................................................. 9
SECTION 2.1 Form........................................................ 9
SECTION 2.2 Execution, Authentication and Delivery...................... 9
SECTION 2.3 Temporary Notes............................................. 9
SECTION 2.4 Tax Treatment............................................... 10
SECTION 2.5 Registration; Registration of Transfer and Exchange......... 10
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes.................. 11
SECTION 2.7 Persons Deemed Owner........................................ 12
SECTION 2.8 Payments.................................................... 12
SECTION 2.9 Cancellation................................................ 14
SECTION 2.10 Release of Collateral....................................... 14
SECTION 2.11 Book-Entry Notes............................................ 14
SECTION 2.12 Notices to Clearing Agency.................................. 15
SECTION 2.13 Definitive Notes............................................ 15
SECTION 2.14 Authenticating Agents....................................... 16
ARTICLE III
COVENANTS.................................................................. 16
SECTION 3.1 Payment Covenant............................................ 16
SECTION 3.2 Maintenance of Office or Agency............................. 16
SECTION 3.3 Money for Payments To Be Held in Trust...................... 16
SECTION 3.4 Existence................................................... 18
SECTION 3.5 Protection of Trust Estate.................................. 18
SECTION 3.6 Opinions as to Trust Estate................................. 18
SECTION 3.7 Performance of Obligations; Servicing of Receivables........ 19
SECTION 3.8 Negative Covenants.......................................... 20
SECTION 3.9 Annual Statement as to Compliance........................... 21
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms......... 21
SECTION 3.11 Successor of Transferee..................................... 22
SECTION 3.12 No Other Business........................................... 22
SECTION 3.13 No Borrowing................................................ 22
SECTION 3.14 Servicer's Obligations...................................... 22
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities........... 22
SECTION 3.16 Capital Expenditures........................................ 22
SECTION 3.17 Further Instruments and Acts................................ 23
SECTION 3.18 Restricted Payments......................................... 23
SECTION 3.19 Notice of Events of Default................................. 23
SECTION 3.20 Removal of Administrator.................................... 23
ARTICLE IV
SATISFACTION AND DISCHARGE................................................. 23
SECTION 4.1 Satisfaction and Discharge of Indenture..................... 23
SECTION 4.2 Satisfaction, Discharge and Defeasance of the Notes......... 24
SECTION 4.3 Application of Trust Money.................................. 25
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SECTION 4.4 Repayment of Monies Held by Paying Agent.................... 25
ARTICLE V
REMEDIES................................................................... 25
SECTION 5.1 Events of Default........................................... 25
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.......... 26
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by 26
Indenture Trustee...........................................
SECTION 5.4 Remedies; Priorities........................................ 28
SECTION 5.5 Optional Preservation of the Receivables.................... 29
SECTION 5.6 Limitation of Suits......................................... 29
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and 30
Interest....................................................
SECTION 5.8 Restoration of Rights and Remedies.......................... 30
SECTION 5.9 Rights and Remedies Cumulative.............................. 30
SECTION 5.10 Delay or Omission Not a Waiver.............................. 30
SECTION 5.11 Control by Noteholders...................................... 30
SECTION 5.12 Waiver of Past Defaults..................................... 31
SECTION 5.13 Undertaking for Costs....................................... 31
SECTION 5.14 Waiver of Stay or Extension Laws............................ 31
SECTION 5.15 Action on Notes............................................. 31
SECTION 5.16 Performance and Enforcement of Certain Obligations.......... 31
ARTICLE VI
THE INDENTURE TRUSTEE...................................................... 32
SECTION 6.1 Duties of Indenture Trustee................................. 32
SECTION 6.2 Rights of Indenture Trustee................................. 33
SECTION 6.3 Individual Rights of Indenture Trustee...................... 34
SECTION 6.4 Indenture Trustee's Disclaimer.............................. 34
SECTION 6.5 Notice of Defaults.......................................... 34
SECTION 6.6 Reports by Indenture Trustee to Holders..................... 35
SECTION 6.7 Compensation and Indemnity.................................. 35
SECTION 6.8 Replacement of Indenture Trustee............................ 35
SECTION 6.9 Successor Indenture Trustee by Merger....................... 36
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture 36
Trustee.....................................................
SECTION 6.11 Eligibility; Disqualification............................... 37
SECTION 6.12 Preferential Collection of Claims Against Issuer............ 37
SECTION 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses....... 37
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS............................................. 38
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of 38
Noteholders.................................................
SECTION 7.2 Preservation of Information; Communications to 38
Noteholders.................................................
SECTION 7.3 Reports by Issuer........................................... 38
SECTION 7.4 Reports by Indenture Trustee................................ 38
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES....................................... 39
SECTION 8.1 Collection of Money......................................... 39
SECTION 8.2 Establishment of Accounts................................... 39
SECTION 8.3 General Provisions Regarding Accounts....................... 39
SECTION 8.4 Release of Collateral....................................... 40
SECTION 8.5 Opinion of Counsel.......................................... 40
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ARTICLE IX
SUPPLEMENTAL INDENTURES.................................................... 40
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders...... 40
SECTION 9.2 Supplemental Indentures with Consent of Noteholders......... 42
SECTION 9.3 Execution of Supplemental Indentures........................ 43
SECTION 9.4 Effect of Supplemental Indenture............................ 43
SECTION 9.5 Conformity with Trust Indenture Act......................... 43
SECTION 9.6 Reference in Notes to Supplemental Indentures............... 43
ARTICLE X
REDEMPTION OF NOTES........................................................ 43
SECTION 10.1 Redemption.................................................. 43
SECTION 10.2 Form of Redemption Notice................................... 44
SECTION 10.3 Notes Payable on Redemption Date............................ 44
ARTICLE XI
MISCELLANEOUS.............................................................. 44
SECTION 11.1 Compliance Certificates and Opinions, etc................... 44
SECTION 11.2 Form of Documents Delivered to Indenture Trustee............ 46
SECTION 11.3 Acts of Noteholders......................................... 46
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating 47
Agencies....................................................
SECTION 11.5 Notices to Noteholders; Waiver.............................. 47
SECTION 11.6 Alternate Payment and Notice Provisions..................... 48
SECTION 11.7 Conflict with Trust Indenture Act........................... 48
SECTION 11.8 Effect of Headings and Table of Contents.................... 48
SECTION 11.9 Successors and Assigns...................................... 48
SECTION 11.10 Separability................................................ 48
SECTION 11.11 Benefits of Indenture....................................... 48
SECTION 11.12 Legal Holiday............................................... 48
SECTION 11.13 Governing Law............................................... 48
SECTION 11.14 Counterparts................................................ 48
SECTION 11.15 Recording of Indenture...................................... 49
SECTION 11.16 Trust Obligation............................................ 49
SECTION 11.17 No Petition................................................. 49
SECTION 11.18 Inspection.................................................. 49
SCHEDULES
SCHEDULE A................................................................. SA-1
SCHEDULE I................................................................. SI-1
EXHIBITS
EXHIBIT A-1................................................................ A-1
EXHIBIT A-2................................................................ A-2
EXHIBIT A-3................................................................ A-3
EXHIBIT B.................................................................. B-1
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INDENTURE, dated as of November 1, 1998 (as the same may be further
amended, supplemented or otherwise modified and in effect from time to time,
this "Indenture"), between DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A, a Delaware
business trust (the "Issuer"), and CITIBANK, N.A., a national banking
association, as trustee and not in its individual capacity (in such capacity,
the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the holders of the Issuer's [ ]% Class A-1
Asset Backed Notes (the "Class A-1 Notes"), [ ]% Class A-2 Asset Backed
Notes (the "Class A-2 Notes"), [ ]% Class A-3 Asset Backed Notes (the
"Class A-3 Notes") and [ ]% Class A-4 Asset Backed Notes (the "Class
A-4 Notes" and, together with the Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes, the "Class A Notes" or the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date, as
Indenture Trustee for the benefit of the Holders of the Notes, all of the
Issuer's right, title and interest in, to and under, whether now owned or
existing or hereafter acquired or arising: (i) the Receivables, (ii) all monies
due or received thereunder on or after the Cutoff Date, (iii) the Seller's
security interests in the Financed Vehicles, (iv) the Collection Account, the
Note Distribution Account, the Class A Reserve Account and the Payahead Account
and all money, financial assets or other property from time to time held in or
credited to, or purchased with funds from, any of the foregoing accounts (but
excluding the Certificate Distribution Account and the Class B Reserve Account
and any amounts or property held in or credited to, or purchased with funds
from, such accounts), (v) all of the Seller's rights to receive proceeds from
claims on physical damage, credit life and disability insurance policies
covering the Financed Vehicles or the Obligors, (vi) all of the Seller's right
to all documents contained in the Receivable Files, (vii) the rights of the
Seller under the Purchase Agreement, including the right of the Seller to cause
MBCC to repurchase Receivables from time to time from the Seller under certain
circumstances specified therein, and under the Sale and Servicing Agreement,
(viii) all of the Seller's rights, if any, of recourse against Dealers arising
out of breaches by Dealers in connection with the Receivables, (ix) all property
(including the right to receive future Liquidation Proceeds and Recoveries) that
secures a Receivable and that will have been acquired by or on behalf of the
Indenture Trustee, (x) the Servicing Guaranty Agreement, and (xi) all proceeds
(within the meaning of Section 9-306 of the UCC) of the foregoing, including,
without limitation, all present and future claims, demands, causes of action and
choses in action in respect of any or all of the foregoing and all payments on
or under and all proceeds of every kind and nature whatsoever in respect of any
or all of the foregoing, including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, deposit accounts, insurance proceeds, condemnation awards, rights to
payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing (collectively, the
"Collateral").
The foregoing Grant is made in trust to secure the payment of principal of
and interest on, and any other amounts owing in respect of, the Notes, equally
and ratably without prejudice, priority or distinction, and to secure compliance
with the provisions of this Indenture, all as provided in this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the
Notes, acknowledges such Grant, accepts the trusts under this Indenture in
accordance with the provisions of this Indenture and agrees to perform its
duties under this Indenture to the best of its ability to the end that the
interests of the Holders of the Notes may be adequately and effectively
protected to the extent of the Collateral.
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. (a) Except as otherwise specified herein or as
the context may otherwise require, the following terms have the respective
meanings set forth below for all purposes of this Indenture.
"Accrued Note Interest" shall mean, with respect to any Payment Date and
each Class of Notes, the sum of the Monthly Accrued Note Interest and the Note
Interest Carryover Shortfall for such Class for such Payment Date.
"Act" shall have the meaning specified in Section 11.3(a).
"Administration Agreement" shall mean the Administration Agreement, dated
as of November 1, 1998, by and among the Administrator, the Issuer and the
Indenture Trustee, as the same may from time to time be amended, supplemented or
otherwise modified and in effect.
"Administrator" shall mean MBCC, a Delaware corporation, or any successor
Administrator under the Administration Agreement.
"Assignment" shall have the meaning specified in the Sale and Servicing
Agreement.
"Authenticating Agent" shall have the meaning specified in Section 2.14.
"Authorized Officer" shall have the meaning specified in the Sale and
Servicing Agreement.
"Basic Documents" shall mean this Indenture, the Certificate of Trust, the
Trust Agreement, the Assignment, the Sale and Servicing Agreement, the Purchase
Agreement, the Administration Agreement, the Note Depository Agreement, the
Servicing Guaranty Agreement, the Control Agreement and other documents and
certificates delivered in connection therewith as the same may from time to time
be amended, supplemented or otherwise modified and in effect.
"Book-Entry Notes" shall mean a beneficial interest in the Notes, ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 2.11.
"Business Day" shall have the meaning specified in the Sale and Servicing
Agreement.
"Certificate" shall have the meaning specified in the Trust Agreement.
"Certificate Distribution Account" shall have the meaning specified in the
Trust Agreement.
"Certificate of Trust" shall have the meaning specified in the Trust
Agreement.
"Class" shall mean a class of Notes, which may be the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes or the Class A-4 Notes.
"Class A Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes, collectively.
"Class A Reserve Account" shall have the meaning specified in the Sale and
Servicing Agreement.
"Class A-1 Final Payment Date" shall mean January 3, 2000.
"Class A-1 Noteholder" shall mean, subject to Section 2.11, the Person in
whose name a Class A-1 Note is registered on the Note Register.
"Class A-1 Notes" shall mean the $360,000,000 aggregate initial principal
amount of [ ]% Class A-1 Asset Backed Notes issued by the Trust pursuant to
this Indenture, substantially in the form of Exhibit A-1 to this Indenture.
"Class A-1 Rate" shall mean [ ]% per annum.
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"Class A-2 Final Payment Date" shall mean the December 2001 Payment Date.
"Class A-2 Noteholder" shall mean, subject to Section 2.11, the Person in
whose name a Class A-2 Note is registered on the Note Register.
"Class A-2 Notes" shall mean the $508,000,000 aggregate initial principal
amount of [ ]% Class A-2 Asset Backed Notes issued by the Trust pursuant to
this Indenture, substantially in the form of Exhibit A-2 to this Indenture.
"Class A-2 Rate" shall mean [ ]% per annum.
"Class A-3 Final Payment Date" shall mean the January 2003 Payment Date.
"Class A-3 Noteholder" shall mean, subject to Section 2.11, the Person in
whose name a Class A-3 Note is registered on the Note Register.
"Class A-3 Notes" shall mean the $440,000,000 aggregate initial principal
amount of [ ]% Class A-3 Asset Backed Notes issued by the Trust pursuant to
this Indenture, substantially in the form of Exhibit A-3 to this Indenture.
"Class A-3 Rate" shall mean [ ]% per annum.
"Class A-4 Final Payment Date" shall mean the December 2003 Payment Date.
"Class A-4 Noteholder" shall mean, subject to Section 2.11, the Person in
whose name a Class A-4 Note is registered on the Note Register.
"Class A-4 Notes" shall mean the $241,800,000 aggregate initial principal
amount of [ ]% Class A-4 Asset Backed Notes issued by the Trust pursuant to
this Indenture, substantially in the form of Exhibit A-4 to this Indenture.
"Class A-4 Rate" shall mean [ ]% per annum.
"Class B Final Payment Date" shall have the meaning specified in the Trust
Agreement.
"Class B Reserve Account" shall have the meaning specified in the Trust
Agreement.
"Clearing Agency" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" shall have the meaning specified in the Sale and Servicing
Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and Treasury Regulations promulgated thereunder.
"Collateral" shall have the meaning specified in the Granting Clause of
this Indenture.
"Collection Account" shall have the meaning specified in the Sale and
Servicing Agreement.
"Commission" shall mean the Securities and Exchange Commission.
"Control Agreement" shall mean the Securities Account Control Agreement,
dated as of November 1, 1998, by and among the Seller, the Issuer, the Owner
Trustee, the Indenture Trustee and Citibank, N.A. in its capacity as a
securities intermediary, as the same may be amended, supplemented or otherwise
modified and in effect from time to time.
"Corporate Trust Office" shall mean, with respect to the Indenture Trustee,
the principal office of the Indenture Trustee at which at any particular time
its corporate trust business shall be administered, which office at date of
execution of this Indenture is located at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxx 0,
Xxx Xxxx, XX 00000, Attention: Global Agency and Trust Services, or at such
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other address as the Indenture Trustee may designate from time to time by notice
to the Noteholders and the Issuer, or the principal corporate trust office of
any successor Indenture Trustee at the address designated by such successor
Indenture Trustee by notice to the Noteholders and the Issuer.
"Cutoff Date" shall have the meaning specified in the Sale and Servicing
Agreement.
"Dealers" shall have the meaning specified in the Sale and Servicing
Agreement.
"Default" shall mean any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Definitive Notes" shall have the meaning specified in Section 2.11.
"Event of Default" shall have the meaning specified in Section 5.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Executive Officer" shall mean, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary or the Treasurer of
such corporation and, with respect to any partnership, any general partner
thereof.
"Final Payment Date" shall mean the Class A-1 Final Payment Date, the Class
A-2 Final Payment Date, the Class A-3 Final Payment Date, the Class A-4 Final
Payment Date, the Class B Final Payment Date, collectively, or any of them, as
the context requires.
"Final Scheduled Maturity Date" shall mean November 21, 2005.
"Financed Vehicle" shall have the meaning specified in the Sale and
Servicing Agreement.
"Grant" shall mean to mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, and to xxxxx x xxxx upon and
a security interest in and right of set-off against, and to deposit, set over
and confirm pursuant to this Indenture. A Grant of the Collateral or of any
other agreement or instrument shall include all rights, powers and options (but
none of the obligations) of the granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give receipt
for principal and interest payments in respect of the Collateral and all other
monies payable thereunder, to give and receive notices and other communications,
to make waivers or other agreements, to exercise all rights and options, to
bring Proceedings in the name of the granting party or otherwise, and generally
to do and receive anything that the granting party is or may be entitled to do
or receive thereunder or with respect thereto.
"Holder" with respect to (a) any Note, subject to Section 2.11, shall mean
the Person in whose name the Note is registered on the Note Register, and (b)
any Certificate, shall have the meaning specified in the Trust Agreement.
"Indenture shall have the meaning specified in the recitals hereto.
"Indenture Trustee" shall mean Citibank, N.A., a national banking
association, as Indenture Trustee under this Indenture, or any successor
Indenture Trustee under this Indenture.
"Independent" shall mean, when used with respect to any specified Person,
that such Person (a) is in fact independent of the Issuer, any other obligor on
the Notes, the Seller and any Affiliate of any of the foregoing Persons, (b)
does not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any Affiliate of
any of the foregoing Persons and (c) is not connected with the Issuer, any such
other obligor, the Seller or any Affiliate of any of the foregoing Persons as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
"Independent Certificate" shall mean a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable
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requirements of Section 11.1, made by an Independent appraiser or other expert
appointed by an Issuer Order and approved by the Indenture Trustee in the
exercise of reasonable care, and such opinion or certificate shall state that
the signer has read the definition of "Independent" in this Indenture and that
the signer is Independent within the meaning thereof.
"Issuer" shall mean Daimler-Benz Vehicle Owner Trust 1998-A, unless a
successor replaces it and, thereafter, means the successor and for purposes of
any provision contained herein and required by the TIA, each other obligor on
the Notes.
"Issuer Order" and "Issuer Request" shall mean a written order or request
signed in the name of the Issuer by any Authorized Officer of the Owner Trustee
and delivered to the Indenture Trustee.
"Liquidation Proceeds" shall have the meaning specified in the Sale and
Servicing Agreement.
"MBCC" shall mean Mercedes-Benz Credit Corporation, a Delaware corporation,
and its successors and assigns.
"Monthly Accrued Note Interest" shall mean, with respect to any Payment
Date and (i) any Class of Notes, interest accrued for the related Interest
Period at the applicable Note Interest Rate on the aggregate principal amount of
the Notes of such Class as of the immediately preceding Payment Date, after
giving effect to all payments of principal to Noteholders on or prior to such
preceding Payment Date (or, in the case of the first Payment Date, the initial
principal amount of the Notes); and (ii) with respect to the Notes collectively,
the sum of Monthly Accrued Note Interest for each Class.
"Note Depository Agreement" shall mean the agreement, dated November 1,
1998, by and among the Issuer, the Indenture Trustee and The Depository Trust
Company, as the initial Clearing Agency, relating to the Notes.
"Note Distribution Account" shall have the meaning specified in the Sale
and Servicing Agreement.
"Note Interest Carryover Shortfall" shall mean, with respect to any Payment
Date and any Class of Notes, the excess of (i) the sum of the Monthly Accrued
Note Interest for the preceding Payment Date and any outstanding Note Interest
Carryover Shortfall from the close of business on such preceding Payment Date,
over (ii) the amount in respect of interest that is actually deposited in the
Note Distribution Account on such preceding Payment Date, plus interest on such
excess to the extent permitted by law, at the applicable Note Interest Rate for
the related Note Interest Period.
"Note Interest Period" shall mean, with respect to any Payment Date, (i)
with respect to the Class A-1 Notes, the period from and including the Closing
Date (in the case of the first Payment Date) or from and including the most
recent Payment Date to but excluding the following Payment Date and (ii) with
respect to the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, the
period from and including the Closing Date (in the case of the first Payment
Date) or from and including the twentieth (20th) day of the calendar month
preceding each Payment Date to but excluding the twentieth (20th) day of the
following calendar month.
"Note Interest Rate" shall mean, in the case of the Class A-1 Notes, the
Class A-1 Rate, in the case of the Class A-2 Notes, the Class A-2 Rate, in the
case of the Class A-3 Notes, the Class A-3 Rate, and in the case of the Class
A-4 Notes, the Class A-4 Rate.
"Note Owner" shall mean, with respect to any Book-Entry Note, the Person
who is the beneficial owner of such Book-Entry Note, as reflected on the books
of the Clearing Agency or on the books of a Person maintaining an account with
such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
"Note Register" and "Note Registrar" shall have the respective meanings
specified in Section 2.5.
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"Noteholder" shall mean the Holder of a Note.
"Notes" shall mean the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes, collectively.
"Obligor" shall have the meaning specified in the Sale and Servicing
Agreement.
"Opinion of Counsel" shall mean one or more written opinions of counsel who
may, except as otherwise expressly provided in this Indenture, be employees of
or counsel to the Issuer, the Seller, MBCC or the Servicer and who shall be
satisfactory to the Indenture Trustee, and which opinion or opinions shall be
addressed to the Indenture Trustee as Indenture Trustee, shall comply with any
applicable requirements of Section 11.1 and shall be in form and substance
satisfactory to the Indenture Trustee.
"Outstanding" shall mean, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore fully paid and cancelled by the Note Registrar
or delivered to the Note Registrar for re-registration and cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture Trustee
or any Paying Agent in trust for the Holders of such Notes (provided,
however, that if such Notes are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision for such notice
has been made, satisfactory to the Indenture Trustee); and
(iii) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are
held by a protected purchaser;
provided, that in determining whether the Holders of the requisite principal
amount of the Notes Outstanding have given any request, demand, authorization,
direction, notice, consent, or waiver hereunder or under any Basic Document,
Notes owned by the Issuer, any other obligor upon the Notes, the Seller, the
Servicer or any Affiliate of any of the foregoing Persons shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent, or waiver, only the Notes that a
Responsible Officer of the Indenture Trustee actually knows to be so owned shall
be so disregarded. Notes so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgee's right so to act with respect to such Notes and
that the pledgee is not the Issuer, any other obligor upon the Notes, the
Seller, the Servicer or any Affiliate of any of the foregoing Persons.
"Outstanding Amount" shall mean the aggregate principal amount of all Notes
Outstanding at the date of determination.
"Owner Trustee" shall have the meaning specified in the Trust Agreement.
"Payahead Account" shall have the meaning specified in the Sale and
Servicing Agreement.
"Paying Agent" shall mean, with respect to any amounts held on behalf of or
paid to any Noteholders, the Indenture Trustee or any other Person that meets
the eligibility standards for the Indenture Trustee specified in Section 6.11
and is authorized by the Issuer to make payments to and distributions from the
Collection Account and the Note Distribution Account, including payment of
principal of or interest on the Notes on behalf of the Issuer.
"Payment Date" shall have the meaning specified in the Sale and Servicing
Agreement.
"Permitted Investments" shall have the meaning specified in the Sale and
Servicing Agreement.
"Person" shall have the meaning specified in the Sale and Servicing
Agreement.
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"Purchase Agreement" shall have the meaning specified in the Sale and
Servicing Agreement.
"Predecessor Note" shall mean, 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 purposes of this definition, any Note
authenticated and delivered under Section 2.6 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Principal Carryover Shortfall" shall have the meaning specified in the
Sale and Servicing Agreement.
"Principal Distribution Amount" shall have the meaning specified in the
Sale and Servicing Agreement.
"Proceeding" shall mean any suit in equity, action at law or other judicial
or administrative proceeding.
"Rating Agency Condition" shall have the meaning specified in the Sale and
Servicing Agreement.
"Receivable" shall have the meaning specified in the Sale and Servicing
Agreement.
"Receivable File" shall have the meaning specified in the Sale and
Servicing Agreement.
"Record Date" shall have the meaning specified in the Sale and Servicing
Agreement.
"Recoveries" shall have the meaning specified in the Sale and Servicing
Agreement.
"Redemption Date" shall mean the Payment Date specified by the Servicer
pursuant to Section 10.1, on which date the Indenture Trustee, among other
things, shall withdraw any amount remaining in the Class A Reserve Account and
deposit the applicable amount thereof payable to the Holders of the Notes in the
Note Distribution Account, and any amount remaining in the Class B Reserve
Account and deposit the applicable amount thereof payable to the Holders of the
Certificates in the Certificate Distribution Account.
"Redemption Price" shall mean an amount equal to the unpaid principal
amount of the Notes redeemed plus accrued and unpaid interest thereon.
"Registered Holder" shall mean the Person in whose name a Note is
registered on the Note Register on the applicable Record Date.
"Reserve Accounts" shall have the meaning specified in the Sale and
Servicing Agreement.
"Responsible Officer" shall mean, with respect to the Indenture Trustee,
any officer within the Corporate Trust Office of the Indenture Trustee including
any managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Indenture Trustee
customarily performing functions similar to those performed by the above
designated officers and having direct responsibility for the administration of
this Indenture and also, with respect to a particular matter, any other officer
to whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Sale and Servicing Agreement" shall mean the Sale and Servicing Agreement,
dated as of November 1, 1998, by and among the Issuer, the Seller and MBCC, as
Servicer, as the same may be amended, supplemented or otherwise modified and in
effect from time to time.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller" shall have the meaning specified in the Sale and Servicing
Agreement.
"Servicer" shall have the meaning specified in the Sale and Servicing
Agreement.
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"Servicing Guaranty Agreement" shall have the meaning specified in the Sale
and Servicing Agreement.
"State" shall mean any of the fifty States of the United States of America
or the District of Columbia.
"Successor Servicer" shall have the meaning specified in Section 3.7(e).
"Total Required Payment" shall mean, on any Payment Date, the Total
Servicing Fee, the Accrued Note Interest and the Principal Distribution Amount
with respect to the Notes.
"Trust" shall have the meaning specified in the Trust Agreement.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement,
dated as of November 1, 1998, by and between the Owner Trustee and the Seller,
as depositor, as the same may be amended, supplemented or otherwise modified and
in effect from time to time.
"Trust Estate" shall mean the "Owner Trust Estate" as defined in the Trust
Agreement.
"Trust Indenture Act" or "TIA" shall mean the Trust Indenture Act of 1939,
as amended, unless otherwise specifically provided.
(b) Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined herein have the
respective meanings set forth in, or incorporated by reference into, the Sale
and Servicing Agreement for all purposes of this Indenture.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Indenture securities" shall mean the Notes.
"Indenture security holder" shall mean a Noteholder.
"Indenture to be qualified" shall mean this Indenture.
"Indenture trustee" or "Institutional trustee" shall mean the Indenture
Trustee.
"Obligor" on the indenture securities shall mean the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
SECTION 1.3 Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in
effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the plural
include the singular; and
(vi) any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
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ARTICLE II
THE NOTES
SECTION 2.1 Form. (a) The Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes, together with the Indenture Trustee's
certificates of authentication thereon, shall be substantially the form set
forth in Exhibit X-0, Xxxxxxx X-0, Exhibit A-3 and Exhibit A-4, respectively,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may, consistently herewith, be determined by the officers executing
such Notes, as evidenced by their execution thereof. Any portion of the text of
any Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.
(b) The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
(c) Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in Exhibits A-1 through A-4 hereto are part of the terms of
this Indenture and are incorporated herein by reference.
SECTION 2.2 Execution, Authentication and Delivery. (a) The Notes shall
be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
(b) Notes bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of the Owner Trustee on behalf of the Issuer
shall bind the Issuer, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Notes or did not hold such offices at the date of such Notes.
(c) The Indenture Trustee shall, upon Issuer Order, authenticate and
deliver [ ]% Class A-1 Asset Backed Notes for original issue in an aggregate
principal amount of $360,000,000, [ ]% Class A-2 Asset Backed Notes for
original issue in an aggregate principal amount of $508,000,000, [ ]% Class
A-3 Asset Backed Notes for original issue in an aggregate principal amount of
$440,000,000 and [ ]% Class A-4 Asset Backed Notes for original issue in an
aggregate principal amount of $241,800,000. The aggregate principal amounts of
[ ]% Class A-1 Asset Backed Notes, [ ]% Class A-2 Asset Backed Notes,
[ ]% Class A-3 Asset Backed Notes and [ ]% Class A-4 Asset Backed Notes
outstanding at any time may not exceed those respective amounts except as
provided in Section 2.6.
(d) Each Note shall be dated the date of its authentication. The Notes
shall be issuable as registered Notes in minimum denominations of $1,000 and
integral multiples thereof.
(e) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.3 Temporary Notes. (a) Pending the preparation of Definitive
Notes, the Issuer may execute, and upon receipt of an Issuer Order the Indenture
Trustee shall authenticate and deliver, temporary Notes that are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.
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(b) If temporary Notes are issued, the Issuer shall cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer shall
execute, and the Indenture Trustee shall authenticate and deliver in exchange
therefor, a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Definitive Notes.
SECTION 2.4 Tax Treatment. The Issuer has entered into this Indenture,
and the Notes shall be issued, with the intention that, for federal, state and
local income and franchise tax purposes, the Notes shall qualify as indebtedness
of the Issuer secured by the Collateral. The Issuer, by entering into this
Indenture, and each Noteholder, by its acceptance of a Note (and each Note Owner
by its acceptance of an interest in the applicable Book-Entry Note), agree to
treat the Notes for federal, state and local income and franchise tax purposes
as indebtedness of the Issuer.
SECTION 2.5 Registration; Registration of Transfer and Exchange. (a) The
Issuer shall cause to be kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee initially shall be the "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar.
(b) If a Person other than the Indenture Trustee is appointed by the Issuer
as Note Registrar, (i) the Issuer shall give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location and
any change in the location, of the Note Register, (ii) the Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof and (iii) the Indenture Trustee shall have the right to
conclusively rely upon a certificate executed on behalf of the Note Registrar by
an Executive Officer thereof as to the names and addresses of the Holders of the
Notes and the principal amounts and number of such Notes.
(c) Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.2, if the
requirements of Section 8-401 of the Relevant UCC are met, the Issuer shall
execute, and the Indenture Trustee shall authenticate and the Noteholder shall
obtain from the Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes of the same Class in any authorized
denomination, of a like aggregate principal amount. The Indenture Trustee may
conclusively rely upon the Administrator with respect to the determination of
whether the requirements of Section 8-401 of the Relevant UCC are met.
(d) At the option of the Noteholder, Notes may be exchanged for other Notes
of the same Class in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, if the requirements of
Section 8-401 of the Relevant UCC are met, the Issuer shall execute, the
Indenture Trustee shall authenticate, and the Noteholder shall obtain from the
Indenture Trustee, the Notes which the Noteholder making such exchange is
entitled to receive. The Indenture Trustee may conclusively rely upon the
Administrator with respect to the determination of whether the requirements of
Section 8-401 of the Relevant UCC are met.
(e) 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.
(f) Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the
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Indenture Trustee duly executed by, the Holder thereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar.
(f) No service charge shall be made to a Holder 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 that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
(g) The preceding provisions of this Section 2.5 notwithstanding, the
Issuer shall not be required to make and the Note Registrar need not register
transfers or exchanges of Notes selected for redemption or of any Note for a
period of fifteen (15) days preceding the due date for any payment with respect
to such Note.
SECTION 2.6 Mutilated, Destroyed, Lost or Stolen Notes. (a) If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such satisfactory
security or indemnity as may be required by it to hold the Issuer and the
Indenture Trustee harmless, then, in the absence of written notice to the
Issuer, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a protected purchaser, and provided that the requirements of Section
8-405 of the Relevant UCC are met, the Issuer shall execute, and upon its
written request the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of the same Class; provided, however, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within seven (7) days of the Indenture Trustee's receipt of evidence to its
satisfaction of such destruction, loss or theft shall be due and payable, or
shall have been called for redemption, instead of issuing a replacement Note of
the same Class, the Issuer may pay such destroyed, lost or stolen Note when so
due or payable or upon the Redemption Date without surrender thereof. The
Indenture Trustee may conclusively rely upon the Administrator with respect to
the determination of whether the requirements of Section 8-405 of the Relevant
UCC are met. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a protected purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer
and the Indenture Trustee shall be entitled to recover such replacement Note (or
such payment) from the Person to whom it was delivered or any Person taking such
replacement Note from such Person to whom such replacement Note was delivered or
any assignee of such Person, except a protected purchaser, and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in
connection therewith.
(b) Upon the issuance of any replacement Note under this Section 2.6, the
Issuer and the Trustee may require in addition to satisfactory security or
indemnity, the payment by the Holder of such Note of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of the Indenture
Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section 2.6 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute a
contractual obligation of the Issuer, whether or not the mutilated, destroyed,
lost or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Notes duly issued hereunder.
(d) The provisions of this Section 2.6 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 2.7 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered in the Note Register (as of the day of determination) as
the owner of such Note for the purpose of receiving payments of principal of and
interest, if any, on such Note and for all other purposes whatsoever, whether or
not such Note be overdue, and none of the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee shall be affected by notice to the
contrary.
SECTION 2.8 Payments.
(a) On each Payment Date, upon receipt of written instructions from the
Servicer pursuant to Section 4.6(c) of the Sale and Servicing Agreement, the
Indenture Trustee will (i) withdraw from the Collection Account and pay to the
Servicer any amounts required to reimburse the Servicer for any outstanding
Advances for any prior Collection Periods in accordance with Section 4.4 of the
Sale and Servicing Agreement, and thereafter, (ii) withdraw (A) all Available
Funds on deposit in the Collection Account for the related Collection Period and
(B) the additional amounts from the sources specified below and make the
following payments and deposits from the sources specified below for such
Payment Date in the following order of priority:
(i) to the Servicer, the Total Servicing Fee, such amount to be paid,
first, from Available Funds in the Collection Account, second, from the
Class B Reserve Account, and third, from the Class A Reserve Account;
(ii) to the Note Distribution Account, the Accrued Note Interest on
each Class of Notes, such amount to be paid, first, from Available Funds in
the Collection Account, and second, from the Class A Reserve Account;
(iii) to the Certificate Distribution Account, the Accrued Certificate
Interest, such amount to be paid, first, from Available Funds in the
Collection Account, and second, from the Class B Reserve Account;
(iv) to the Note Distribution Account, the Principal Distribution
Amount with respect to each Class of Notes, such amount to be paid, first,
from Available Funds in the Collection Account, and second, from the Class
A Reserve Account;
(v) to the Certificate Distribution Account, the Principal
Distribution Amount with respect to the Certificates, such amount to be
paid, first, from Available Funds in the Collection Account, and second,
from the Class B Reserve Account;
(vi) to the Class A Reserve Account, from Available Funds in the
Collection Account, the amount required to bring the amount in the Class A
Reserve Account up to the Specified Class A Reserve Balance;
(vii) to the Class B Reserve Account, from Available Funds in the
Collection Account, the amount required to bring the amount in the Class B
Reserve Account up to the Specified Class B Reserve Balance; and
(viii) to the Seller, any remaining Available Funds in the Collection
Account.
Notwithstanding the foregoing, following the occurrence and during the
continuation of an Event of Default which has resulted in an acceleration of the
Notes, the Available Funds remaining after the application of clauses (i) and
(ii) above will be deposited in the Note Distribution Account and applied in
accordance with Section 2.8(f).
(b) The principal of each Note shall be payable in installments on each
Payment Date in an aggregate amount (unless the Notes have been accelerated in
accordance with Section 5.2 following the occurrence of an Event of Default) for
all Classes of Notes equal to the Principal Distribution Amount with respect to
such Payment Date. On each Payment Date, unless the Notes have been accelerated
in accordance with Section 5.2 following the occurrence of an Event of
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Default, the Issuer shall cause to be paid all amounts on deposit in the Note
Distribution Account with respect to the related Collection Period in the
following order of priority;
(i) to the Class A Noteholders, Accrued Note Interest (and, if amounts
on deposit in the Note Distribution Account are insufficient for such
purpose, payments shall be made to the Class A Noteholders pro rata in
proportion to the Accrued Note Interest for each Class of Class A Notes);
(ii) to the Class A-1 Noteholders, 100% of the Principal Distribution
Amount in reduction of principal until the principal amount of the Class
A-1 Notes has been paid in full;
(iii) following payment in full of the Class A-1 Notes, to the Class
A-2 Noteholders, 100% of the remaining Principal Distribution Amount in
reduction of principal until the principal amount of the Class A-2 Notes
has been paid in full;
(iv) following payment in full of the Class A-2 Notes, to the Class
A-3 Noteholders, 100% of the remaining Principal Distribution Amount in
reduction of principal until the principal amount of the Class A-3 Notes
has been paid in full; and
(v) following payment in full of the Class A-3 Notes, to the Class A-4
Noteholders, 100% of the remaining Principal Distribution Amount in
reduction of principal until the principal amount of the Class A-4 Notes
has been paid in full.
(c) The principal amount of the Class A-1 Notes, to the extent not
previously paid, will be due on the Class A-1 Final Payment Date, the principal
amount of the Class A-2 Notes, to the extent not previously paid, will be due on
the Class A-2 Final Payment Date, the principal amount of the Class A-3 Notes,
to the extent not previously paid, will be due on the Class A-3 Final Payment
Date and the principal amount of the Class A-4 Notes, to the extent not
previously paid, will be due on the Class A-4 Final Payment Date.
(d) The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes shall accrue interest at the Class A-1 Rate, the Class A-2 Rate,
the Class A-3 Rate and the Class A-4 Rate, respectively, and such interest shall
be due and payable on each Payment Date. Interest on the Class A-1 Notes will be
calculated on the basis of actual days elapsed and a 360-day year. Interest on
the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes will be
calculated on the basis of a 360-day year of twelve 30-day months. Subject to
Section 3.1, any installment of principal of or interest, if any, payable on any
Note that is punctually paid or duly provided for by the Issuer on the
applicable Payment Date shall be paid to the Person in whose name such Note (or
one or more Predecessor Notes) is registered on the Record Date by check mailed
first-class postage prepaid to such Person's address as it appears on the Note
Register on such Record Date; provided that, unless Definitive Notes have been
issued pursuant to Section 2.13, with respect to Notes registered on the Record
Date in the name of the nominee of the Clearing Agency (initially, such nominee
to be Cede & Co.), payment shall be made by wire transfer in immediately
available funds to the account designated by such nominee, and except for the
final installment of principal payable with respect to such Note on a Payment
Date or on the related Final Payment Date (and except for the Redemption Price
for any Note called for redemption pursuant to Section 10.1), which shall be
payable as provided below. The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.3. The Issuer shall pay
all Accrued Note Interest, including Note Interest Carryover Shortfalls, to the
Persons who are Noteholders on the Record Date for a particular Payment Date
even if a portion of such Accrued Note Interest relates to a different Payment
Date.
(e) All principal payments on the Notes shall be made pro rata to the
Noteholders entitled thereto. The Indenture Trustee shall notify the Person in
whose name a Note is registered at the close of business on the Record Date
preceding the Payment Date on which the Issuer expects that the final
installment of principal of and interest on such Note shall be paid. Such notice
shall be mailed or transmitted by facsimile prior to such final Payment Date and
shall specify that such final
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installment shall be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered for
payment of such installment. Notices in connection with redemption of Notes
shall be mailed to Noteholders as provided in Section 10.2.
(f) Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable, if not previously paid, on the date on which
an Event of Default shall have occurred and be continuing, if the Indenture
Trustee or the Holders of Notes representing not less than a majority of the
principal amount of the Notes Outstanding have declared the Notes to be
immediately due and payable in the manner provided in Section 5.2. On each
Payment Date following acceleration of the Notes, all amounts on deposit in the
Note Distribution Account shall be paid in the following order of priority.
(i) first, to the Servicer for any unreimbursed Advances;
(ii) second, to the Indenture Trustee for amounts due under Section
6.7;
(iii) third, to the Servicer for amounts due and unpaid in respect of
Total Servicing Fees;
(iv) fourth, to Noteholders of each Class of Class A Notes, Accrued
Note Interest ratably in proportion to Accrued Note Interest for each Class
of Class A Notes, without preference or priority of any kind, according to
the amounts due and payable on the Notes for interest;
(v) fifth, to the Class A-1 Noteholders, the Class A-2 Noteholders,
the Class A-3 Noteholders and the Class A-4 Noteholders, the outstanding
principal amount of the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes, respectively, pro rata in proportion to the
respective principal balances of each of such Classes in reduction of
principal until the principal amount of each of such Classes has been paid
in full; and
(vi) sixth, to the Certificate Distribution Account, any remaining
balance in the Note Distribution Account.
SECTION 2.9 Cancellation. All Notes surrendered for payment, registration
of transfer, exchange or redemption shall, if surrendered to any Person other
than the Indenture Trustee, be delivered to the Indenture Trustee and shall be
promptly cancelled by the Indenture Trustee. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly cancelled by the Indenture Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section 2.9, except as expressly permitted by this
Indenture. All cancelled Notes may be held or disposed of by the Indenture
Trustee in accordance with its standard retention or disposal policy as in
effect at the time unless the Issuer shall direct by an Issuer Order that they
be destroyed or returned to it, provided, that such Issuer Order is timely and
the Notes have not been previously disposed of by the Indenture Trustee.
SECTION 2.10 Release of Collateral. Subject to Section 11.1 and the terms
of the Basic Documents, the Indenture Trustee shall release property from the
lien of this Indenture only upon receipt of an Issuer Request accompanied by an
Officer's Certificate, an Opinion of Counsel and Independent Certificates in
accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion of Counsel in
lieu of such Independent Certificates to the effect that the TIA does not
require any such Independent Certificates. If the Commission shall issue an
exemptive order under TIA Section 304(d) modifying the Indenture Trustee's
obligations under TIA Sections 314(c) and 314(d)(1), the Indenture Trustee shall
release property from the lien of this Indenture in accordance with the
conditions and procedures set forth in such exemptive order.
SECTION 2.11 Book-Entry Notes. The Notes, upon original issuance, shall
be issued in the form of typewritten Notes representing the Book-Entry Notes, to
be delivered to The Depository Trust Company, the initial Clearing Agency, by,
or on behalf of, the Issuer. The Book-Entry Notes shall be registered initially
on the Note Register in the name of Cede & Co., the nominee of the initial
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Clearing Agency, and no Note Owner thereof shall receive a definitive Note
representing such Note Owner's interest in such Note, except as provided in
Section 2.13. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to such Note Owners pursuant to Section
2.13:
(i) the provisions of this Section 2.11 shall be in full force and
effect;
(ii) the Note Registrar and the Indenture Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture (including
the payment of principal of and interest on the Notes and the giving of
instructions or directions hereunder) as the sole Holder of the Notes, and
shall have no obligation to the Note Owners;
(iii) to the extent that the provisions of this Section 2.11 conflict
with any other provisions of this Indenture, the provisions of this Section
shall control;
(iv) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants pursuant to the Note Depository Agreement;
unless and until Definitive Notes are issued pursuant to Section 2.13, the
initial Clearing Agency shall make book-entry transfers among the Clearing
Agency Participants and receive and transmit payments of principal of and
interest on the Notes to such Clearing Agency Participants;
(v) whenever this Indenture requires or permits actions to be taken
based upon written instructions or directions of Holders of Notes
evidencing a specified percentage of the principal amount of the Notes or
any Class of Notes Outstanding, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has received written
instructions to such effect from Note Owners and/or Clearing Agency
Participants owning or representing, respectively, such required percentage
of the beneficial interest in the Notes or such Class of Notes and has
delivered such written instructions to the Indenture Trustee; and
(vi) the Clearing Agency may be treated by the Indenture Trustee and
its agents, employees, officers and directors as the absolute owner of the
Notes for all purposes whatsoever.
SECTION 2.12 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to such Note Owners pursuant to
Section 2.13, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to such Note Owners.
SECTION 2.13 Definitive Notes. If (i) the Issuer, the Administrator or
the Servicer advises the Indenture Trustee in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities with
respect to the Book-Entry Notes and the Indenture Trustee or the Administrator
is unable to locate a qualified successor, (ii) the Administrator, at its
option, advises the Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of
an Event of Default or an Event of Servicing Termination, Note Owners of the
Book-Entry Notes representing beneficial interests aggregating not less than 51%
of the principal amount of such Notes advise the Indenture Trustee and the
Clearing Agency (or a successor thereto) in writing that the continuation of a
book-entry system through the Clearing Agency is no longer in the best interests
of such Note Owners, then the Clearing Agency shall notify all Note Owners and
the Indenture Trustee in writing of the occurrence of such event and of the
availability of Definitive Notes to Note Owners requesting the same. Upon
surrender to the Indenture Trustee of the typewritten Notes representing the
Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the Indenture Trustee
shall be liable for
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any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Notes, the Indenture Trustee shall recognize the Holders of the
Definitive Notes as Noteholders.
SECTION 2.14 Authenticating Agents. The Indenture Trustee may appoint one
or more Persons (each, an "Authenticating Agent") with power to act on its
behalf and subject to its direction in the authentication of Notes in connection
with issuance, transfers and exchanges under Sections 2.2, 2.3, 2.5 and 2.6, as
fully to all intents and purposes as though each such Authenticating Agent had
been expressly authorized by those Sections to authenticate such Notes. For all
purposes of this Indenture, the authentication of Notes by an Authenticating
Agent pursuant to this Section 2.14 shall be deemed to be the authentication of
Notes "by the Indenture Trustee".
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, without the execution or filing of any
further act on the part of the parties hereto or such Authenticating Agent or
such successor corporation.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Indenture Trustee and the Owner Trustee. The Indenture
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the Owner
Trustee. Upon receiving such notice of resignation or upon such a termination,
the Indenture Trustee may appoint a successor Authenticating Agent and shall
give written notice of any such appointment to the Owner Trustee.
The Administrator agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services. The provisions of Sections 2.9
and 6.4 shall be applicable to any Authenticating Agent.
ARTICLE III
COVENANTS
SECTION 3.1 Payment Covenant. The Issuer shall duly and punctually pay
the principal of and interest, if any, on the Notes in accordance with the terms
of the Notes and this Indenture. Amounts properly withheld under the Code by any
Person from a payment to any Noteholder of interest and/or principal shall be
considered as having been paid by the Issuer to such Noteholder for all purposes
of this Indenture.
SECTION 3.2 Maintenance of Office or Agency. The Issuer shall maintain in
the Borough of Manhattan, The City of New York, an office or agency where Notes
may be surrendered for registration of transfer or exchange, and where notices
and demands to or upon the Issuer in respect of the Notes and this Indenture may
be served. The Issuer hereby initially appoints the Indenture Trustee to serve
as its agent for the foregoing purposes. The Issuer shall give prompt written
notice to the Indenture Trustee of the location, and of any change in the
location, of any such office or agency. If, at any time, the Issuer shall fail
to maintain any such office or agency or shall fail to furnish the Indenture
Trustee with the address thereof, such surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Indenture Trustee, and the
Issuer hereby appoints the Indenture Trustee as its agent to receive all such
surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust. (a) As provided in
Section 8.2, all payments of amounts due and payable with respect to any Notes
or Certificates that are to be made from amounts withdrawn from the Collection
Account, the Reserve Accounts, the Note Distribution Account or the Certificate
Distribution Account, as applicable, shall be made on behalf of the Issuer
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by the Indenture Trustee or by any other Paying Agent, and no amounts so
withdrawn from the Collection Account, the Reserve Accounts, the Note
Distribution Account or the Certificate Distribution Account, as applicable, for
payments of Notes or Certificates shall be paid over to the Issuer, except as
provided in this Section 3.3.
(b) On or before each Payment Date and Redemption Date, to the extent funds
are available for such purpose, the Indenture Trustee or any other Paying Agent
shall deposit or cause to be deposited in each of the Note Distribution Account
and the Certificate Distribution Account an aggregate sum sufficient to pay the
amounts then becoming due under the Notes and the Certificates, as the case may
be, such sum to be held in trust for the benefit of the Persons entitled
thereto, and (unless the only Paying Agent is the Indenture Trustee) shall
promptly notify the Indenture Trustee in writing of its action or failure so to
act.
(c) The Issuer shall cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section 3.3, that such Paying Agent shall:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes or the Certificates, as applicable, in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and pay such sums
to such Persons as herein provided;
(ii) give the Indenture Trustee and the Owner Trustee notice of any
default by the Issuer (or any other obligor upon the Notes) of which it has
actual knowledge in the making of any payment required to be made with
respect to the Notes or the Certificates, as applicable;
(iii) at any time during the continuance of any such default, upon the
written request of (a) the Indenture Trustee, forthwith pay to the
Indenture Trustee, and (b) the Owner Trustee, forthwith pay to the Owner
Trustee, as appropriate, all sums so held in trust by such Paying Agent on
behalf of the Noteholders and the Certificateholders, respectively;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee and the Owner Trustee, respectively, all sums held by it
in trust for the payment of Notes or the Certificates, as applicable, if at
any time it ceases to meet the standards required to be met by a Paying
Agent at the time of its appointment;
(v) comply with all requirements of the Code and any state or local
tax law with respect to the withholding from any payments made by it on any
Notes or Certificates, as applicable, of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting requirements
in connection therewith; and
(vi) The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Indenture Trustee and
the Owner Trustee, as appropriate, all sums held in trust by such Paying
Agent, such sums to be held, after receipt thereof by the Indenture
Trustee, by the Indenture Trustee and the Owner Trustee, as applicable,
upon the same trusts as those upon which the sums were held by such Paying
Agent; and upon such payment by any Paying Agent, such Paying Agent shall
be released from all further liability with respect to such money.
(d) Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee, the Owner Trustee or any Paying Agent in trust
for the payment of any amount due with respect to any Note or any Certificate,
as applicable, and remaining unclaimed for two (2) years after such amount has
become due and payable shall be discharged from such trust and be paid to the
Issuer on Issuer Request; and the Holder of such Note or Certificate, as
applicable, shall thereafter, as an unsecured general creditor, look only to the
Issuer for payment thereof (but only to the extent of the amounts so paid to the
Issuer), and all liability of the Indenture
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Trustee, the Owner Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Indenture Trustee or such
Paying Agent, before being required to make any such repayment, shall at the
expense and written direction of the Issuer cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than thirty (30) days from the date of such publication, any
unclaimed balance of such money then remaining shall be repaid to the Issuer.
The Indenture Trustee shall also adopt and employ, at the expense and written
direction of the Issuer, any other reasonable means of notification of such
repayment (including, but not limited to, mailing notice of such repayment to
Holders whose Notes or Certificates, as applicable, have been called but have
not been surrendered for redemption or whose right to or interest in monies due
and payable but not claimed is determinable from the records of the Indenture
Trustee, the Owner Trustee or of any Paying Agent, at the last address of record
for each such Holder).
SECTION 3.4 Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a business trust under the laws of the State
of Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer shall keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and shall obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Certificates, the Collateral
and each other instrument or agreement included in the Trust Estate.
SECTION 3.5 Protection of Trust Estate. The Issuer shall from time to
time execute and deliver all such supplements and amendments hereto and shall
file all such financing statements, continuation statements, instruments of
further assurance and other instruments, and shall take such other action
necessary or advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iii) enforce any rights hereunder with respect to the Collateral; or
(iv) preserve and defend title to the Trust Estate and the rights of
the Indenture Trustee, the Noteholders and the Certificateholders in such
Trust Estate against the claims of all Persons.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute at the expense of the Issuer any financing
statement, continuation statement or other instrument required to be executed
pursuant to this Section 3.5.
SECTION 3.6 Opinions as to Trust Estate. (a) On the Closing Date, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
substantially in the form attached hereto as Exhibit B.
(b) On or before May 31, in each calendar year, beginning in 1999, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite documents and with
respect to the execution and filing of any financing statements and continuation
statements as is necessary to maintain the lien and security interest created by
this Indenture and reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to maintain such lien and
security interest. Such Opinion of Counsel shall also describe the recording,
filing, re-recording and refiling of this Indenture, any indentures supplemental
hereto and any other requisite documents and the execution and filing of any
financing statements and continuation statements that
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shall, in the opinion of such counsel, be required to maintain the lien and
security interest of this Indenture until May 31 in the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Receivables. (a) The
Issuer shall not take any action and shall use its best efforts not to permit
any action to be taken by others that would release any Person from any of such
Person's material covenants or obligations under any instrument or agreement
included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture and the other Basic Documents.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officer's Certificate of the Issuer
shall be deemed to be action taken by the Issuer. Initially, the Issuer has
contracted with the Servicer and the Administrator to assist the Issuer in
performing its duties under this Indenture.
(c) The Issuer shall punctually perform and observe all of its obligations
and agreements contained in this Indenture, the Basic Documents and in the
instruments and agreements included in the Trust Estate, including, but not
limited to, filing or causing to be filed all financing statements and
continuation statements required to be filed under the Relevant UCC by the terms
of this Indenture and the Sale and Servicing Agreement in accordance with and
within the time periods provided for herein and therein. Except as otherwise
expressly provided therein, the Issuer shall not waive, amend, modify,
supplement or terminate any Basic Document or any provision thereof without the
consent of the Indenture Trustee or the Holders of at least a majority of the
principal amount of the Notes Outstanding.
(d) If the Issuer shall have knowledge of the occurrence of an Event of
Servicing Termination under the Sale and Servicing Agreement, the Issuer shall
promptly notify the Indenture Trustee and the Rating Agencies in writing thereof
and shall specify in such notice the action, if any, the Issuer is taking in
respect of such default. If an Event of Servicing Termination shall arise from
the failure of the Servicer to perform any of its duties or obligations under
the Sale and Servicing Agreement with respect to the Receivables, the Issuer
shall take all reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination to
the Servicer of the Servicer's rights and powers pursuant to Section 7.1 of the
Sale and Servicing Agreement, the Issuer shall (subject to the rights of the
Indenture Trustee to direct such appointment pursuant to Section 7.2 of the Sale
and Servicing Agreement) appoint a successor servicer (the "Successor
Servicer"), and such Successor Servicer shall accept its appointment by a
written assumption in a form acceptable to the Indenture Trustee. In the event
that a Successor Servicer has not been appointed and has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the
Indenture Trustee, without further action, shall automatically be appointed the
Successor Servicer. The Indenture Trustee may resign as the Servicer by giving
written notice of such resignation to the Issuer and in such event shall be
released from such duties and obligations, such release not to be effective
until the date a new servicer enters into a servicing agreement with the Issuer
as provided below. Upon delivery of any such notice to the Issuer, the Issuer
shall obtain a new servicer as the Successor Servicer under the Sale and
Servicing Agreement. Any Successor Servicer (other than the Indenture Trustee)
shall (i) be an established financial institution having a net worth of not less
than $50,000,000 and whose regular business includes the servicing of Contracts
and (ii) enter into a servicing agreement with the Issuer having substantially
the same provisions as the provisions of the Sale and Servicing Agreement
applicable to the Servicer. If, within thirty (30) days after the delivery of
the notice referred to above, the Issuer shall not have obtained such a new
servicer, the Indenture Trustee may appoint, or may petition a court of
competent jurisdiction to appoint, a Successor Servicer. In connection with any
such appointment,
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the Indenture Trustee may make such arrangements for the compensation of such
successor as it and such successor shall agree, subject to the limitations set
forth below and in the Sale and Servicing Agreement, and in accordance with
Section 7.2 of the Sale and Servicing Agreement, the Issuer shall enter into an
agreement with such successor for the servicing of the Receivables (such
agreement to be in form and substance satisfactory to the Indenture Trustee). If
the Indenture Trustee shall succeed to the Servicer's duties as servicer of the
Receivables as provided herein, it shall do so in its individual capacity and
not in its capacity as Indenture Trustee and, accordingly, the provisions of
Article VI hereof shall be inapplicable to the Indenture Trustee in its duties
as the successor to the Servicer and the servicing of the Receivables. In case
the Indenture Trustee shall become successor to the Servicer under the Sale and
Servicing Agreement, the Indenture Trustee shall be entitled to appoint as
Servicer any one of its Affiliates; provided that the Indenture Trustee, in its
capacity as the Servicer, shall be fully liable for the actions and omissions of
such Affiliate in such capacity as Successor Servicer.
(f) Upon any termination of the Servicer's rights and powers pursuant to
the Sale and Servicing Agreement, the Issuer shall promptly notify the Indenture
Trustee in writing. As soon as a Successor Servicer is appointed by the Issuer,
the Issuer shall notify in writing the Indenture Trustee of such appointment,
specifying in such notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment granted
to the Indenture Trustee under this Indenture or the rights of the Indenture
Trustee hereunder, the Issuer hereby agrees that it shall not, without the prior
written consent of the Indenture Trustee or the Holders of at least a majority
in principal amount of the Notes Outstanding, amend, modify, waive, supplement,
terminate or surrender, or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any Collateral (except to the
extent otherwise provided in the Sale and Servicing Agreement or the Basic
Documents).
SECTION 3.8 Negative Covenants. So long as any Notes are Outstanding, the
Issuer shall not:
(i) except as expressly permitted by this Indenture, the Trust
Agreement, the Purchase Agreement or the Sale and Servicing Agreement,
sell, transfer, exchange or otherwise dispose of any of the properties or
assets of the Issuer, including those included in the Trust Estate, unless
directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly
withheld from such payments under the Code) or assert any claim against any
present or former Noteholder by reason of the payment of the taxes levied
or assessed upon the Trust;
(iii) dissolve or liquidate in whole or in part; or
(iv) (A) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released
from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (B) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture or as specifically contemplated by
the Basic Documents) to be created on or extend to or otherwise arise upon
or burden the assets of the Trust or any part thereof or any interest
therein or the proceeds thereof or (C) permit the lien of this Indenture
not to constitute a valid first priority (other than with respect to any
such tax, mechanics' or other lien) security interest in the Collateral.
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SECTION 3.9 Annual Statement as to Compliance. The Issuer shall deliver
to the Indenture Trustee, within 120 days after the end of each calendar year
(commencing with the year 1999), an Officer's Certificate stating, as to the
Authorized Officer signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such year and of
its performance under this Indenture has been made under such Authorized
Officer's supervision; and
(ii) to the best of such Authorized Officer's knowledge, based on such
review, the Issuer has complied with all conditions and covenants under
this Indenture throughout such year, or, if there has been a default in its
compliance with any such condition or covenant, specifying each such
default known to such Authorized Officer and the nature and status thereof.
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms. (a) The
Issuer shall not consolidate or merge with or into any other Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the United States of America or any State and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee, the due
and punctual payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this Indenture
on the part of the Issuer to be performed or observed, all as provided
herein;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the effect that
such transaction will not have any material adverse tax consequence to the
Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing required
by the Exchange Act).
(b) Other than as specifically contemplated by the Basic Documents, the
Issuer shall not convey or transfer any of its properties or assets, including
those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the properties
and assets of the Issuer the conveyance or transfer of which is hereby
restricted shall (A) be a United States citizen or a Person organized and
existing under the laws of the United States of America or any State, (B)
expressly assumes, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of and interest on
all Notes and the performance or observance of every agreement and covenant
of this Indenture on the part of the Issuer to be performed or observed,
all as provided herein, (C) expressly agrees by means of such supplemental
indenture that all right, title and interest so conveyed or transferred
shall be subject and subordinate to the rights of Holders of the Notes, (D)
unless otherwise provided in such supplemental indenture, expressly agrees
to indemnify, defend and hold harmless the Issuer against and from any
loss, liability or expense arising under or related to this Indenture and
the
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Notes, and (E) expressly agrees by means of such supplemental indenture
that such Person (or if a group of Persons, then one specified Person)
shall make all filings with the Commission (and any other appropriate
Person) required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the effect that
such transaction will not have any material adverse tax consequence to the
Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing required
by the Exchange Act).
SECTION 3.11 Successor of Transferee. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the
Issuer pursuant to Section 3.10(b), the Issuer shall be released from every
covenant and agreement of this Indenture to be observed or performed on the part
of the Issuer with respect to the Notes immediately upon the delivery of written
notice to the Indenture Trustee stating that the Issuer is to be so released.
SECTION 3.12 No Other Business. The Issuer shall not engage in any
business other than financing, acquiring, owning and pledging the Receivables in
the manner contemplated by this Indenture and the other Basic Documents and
activities incidental thereto.
SECTION 3.13 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes and the Certificates.
SECTION 3.14 Servicer's Obligations. The Issuer shall cause the Servicer
to comply with the Sale and Servicing Agreement, including Sections 3.7, 3.9,
3.10, 3.11, 3.12, 3.13, 3.14 and 4.9 and Article VI thereof.
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities. Except as
contemplated by this Indenture and the other Basic Documents, the Issuer shall
not make any loan or advance or credit to, or guarantee (directly or indirectly
or by an instrument having the effect of assuring another's payment or
performance on any obligation or capability of so doing or otherwise), endorse
or otherwise become contingently liable, directly or indirectly, in connection
with the obligations, stocks or dividends of, or own, purchase, repurchase or
acquire (or agree contingently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital contribution to,
any other Person.
SECTION 3.16 Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets.
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SECTION 3.17 Further Instruments and Acts. Upon request of the Indenture
Trustee, the Issuer shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.18 Restricted Payments. The Issuer shall not, directly or
indirectly, (i) make any distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, to the Owner
Trustee or any owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of the Issuer or
to the Servicer, (ii) redeem, purchase, retire or otherwise acquire for value
any such ownership or equity interest or security or (iii) set aside or
otherwise segregate any amounts for any such purpose; provided, however, that
the Issuer may make, or cause to be made, (x) payments to the Servicer, the
Seller, the Owner Trustee and the Certificateholders and into the Certificate
Distribution Account and the Class B Reserve Account as contemplated by, and to
the extent funds are available for such purpose under, this Indenture, the Sale
and Servicing Agreement or the Trust Agreement and (y) payments to the Indenture
Trustee pursuant to Section 1(a)(ii) of the Administration Agreement. The Issuer
shall not, directly or indirectly, make payments to or distributions from the
Collection Account except in accordance with this Indenture and the other Basic
Documents.
SECTION 3.19 Notice of Events of Default. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder and of each default on the part of any party to the Sale and
Servicing Agreement or the Purchase Agreement with respect to any of the
provisions thereof.
SECTION 3.20 Removal of Administrator. For so long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
the Rating Agency Condition shall have been satisfied in connection therewith.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect with respect to the Notes except as to (i) rights
of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8,
3.10, 3.12 and 3.13 hereof, (v) the rights, obligations, indemnities and
immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Section 6.7 and the obligations of the Indenture Trustee
under Section 4.3), and (vi) the rights of Noteholders as beneficiaries hereof
with respect to the property so deposited with the Indenture Trustee payable to
all or any of them, and the Indenture Trustee, on demand of and at the expense
of the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, when:
(1) either
(A) all Notes of all Classes theretofore authenticated and delivered
(other than (i) Notes that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 2.6 and (ii) Notes for
whose payment money has theretofore been irrevocably deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust, as provided in Section 3.3) have been
delivered to the Indenture Trustee for cancellation; or
(B) all Notes not theretofore delivered to the Indenture Trustee for
cancellation have become due and payable and the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Indenture Trustee
sufficient cash or direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the date such amounts
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are payable), in trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore delivered
to the Indenture Trustee for cancellation when due to the applicable Final
Payment Date or Redemption Date (if Notes shall have been called for
redemption pursuant to Section 10.1(a)), as the case may be;
(2) the Issuer has paid or caused to be paid all other sums payable by the
Issuer hereunder and under the other Basic Documents;
(3) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or the Indenture
Trustee) an Independent Certificate from a firm of certified public accountants,
each meeting the applicable requirements of Section 11.1(a) and, subject to
Section 11.2, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied
with; and
(4) the Issuer has delivered to the Indenture Trustee an Opinion of Counsel
to the effect that the satisfaction and discharge of the Notes pursuant to this
Section 4.1 will not cause any Noteholder to be treated as having sold or
exchanged any of its Notes for purposes of Section 1001 of the Code.
SECTION 4.2 Satisfaction, Discharge and Defeasance of the Notes.
(a) Upon satisfaction of the conditions set forth in subsection (b) below,
the Issuer shall be deemed to have paid and discharged the entire indebtedness
on all the Notes Outstanding, and the provisions of this Indenture, as it
relates to such Notes, shall no longer be in effect (and the Indenture Trustee,
at the expense of the Issuer, shall execute proper instruments acknowledging the
same), except as to:
(i) the rights of Holders of Notes to receive, from the trust funds
described in subsection (b)(i) hereof, payment of the principal of and
interest on the Notes Outstanding at maturity of such principal or
interest;
(ii) the obligations of the Issuer with respect to the Notes under
Sections 2.5, 2.6, 3.2 or 3.3 hereof;
(iii) the obligations of the Issuer to the Indenture Trustee under
Section 6.7 hereof; and
(iv) the rights, powers, trusts, indemnities and immunities of the
Indenture Trustee hereunder and the duties of the Indenture Trustee
hereunder.
(b) The satisfaction, discharge and defeasance of the Notes pursuant to
subsection (a) of this Section 4.2 is subject to the satisfaction of all of the
following conditions:
(i) the Issuer has deposited or caused to be deposited irrevocably
(except as provided in Section 4.4 hereof) with the Indenture Trustee as
trust funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Notes, which, through the
payment of interest and principal in respect thereof in accordance with
their terms will provide, not later than one day prior to the due date of
any payment referred to below, money in an amount sufficient, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Indenture Trustee, to pay and discharge the entire indebtedness on the
Notes Outstanding, for principal thereof and interest thereon to the date
of such deposit (in the case of Notes that have become due and payable) or
to the maturity of such principal and interest, as the case may be;
(ii) such deposit will not result in a breach or violation of, or
constitute an event of default under, any other agreement or instrument to
which the Issuer is bound;
(iii) no Event of Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit or on the
ninety-first (91st) day after such date;
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(iv) the Issuer has delivered to the Indenture Trustee an Opinion of
Counsel to the effect that the satisfaction, discharge and defeasance of
the Notes pursuant to this Section 4.2 will not cause any Noteholder to be
treated as having sold or exchanged any of its Notes for purposes of
Section 1001 of the Code; and
(v) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the defeasance contemplated by this Section 4.2 have
been complied with.
SECTION 4.3 Application of Trust Money. All monies deposited with the
Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest, but such
monies need not be segregated from other funds except to the extent required
herein or in the Sale and Servicing Agreement or required by law.
SECTION 4.4 Repayment of Monies Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to the Notes, all
monies then held by any Paying Agent other than the Indenture Trustee under the
provisions of this Indenture with respect to such Notes shall, upon demand of
the Issuer, be paid to the Indenture Trustee to be held and applied according to
Section 3.3 and thereupon such Paying Agent shall be released from all further
liability with respect to such monies.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default," wherever used herein,
means the occurrence of 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):
(i) default in the payment of any interest on any Note when the same
becomes due and payable, and such default shall continue for a period of
five (5) days or more; or
(ii) default in the payment of the principal of or any installment of
the principal of any Note when the same becomes due and payable, including
with respect to each Class of Notes, the Final Payment Date for such Class;
or
(iii) default in the observance or performance of any material
covenant or agreement of the Issuer made in this Indenture (other than a
covenant or agreement, a default in the observance or performance of which
is elsewhere in this Section 5.1 specifically dealt with), or any
representation or warranty of the Issuer made in this Indenture or in any
certificate or other writing delivered pursuant hereto or in connection
herewith proving to have been incorrect in any material respect as of the
time when the same shall have been made, and such default shall continue or
not be cured, or the circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have been eliminated
or otherwise cured, for a period of sixty (60) days or in the case of a
materially incorrect representation and warranty thirty (30) days, after
there shall have been given, by registered or certified mail, to the Issuer
by the Indenture Trustee or to the Issuer and the Indenture Trustee by the
Holders of not less than 25% of the principal amount of the Notes
Outstanding, a written notice specifying such default or incorrect
representation or warranty and requiring it to be remedied and stating that
such notice is a notice of Default hereunder; or
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(iv) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial
part of the Trust Estate in an involuntary case under any applicable
federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for
any substantial part of the Trust Estate, or ordering the winding-up or
liquidation of the Issuer's affairs, and such decree or order shall remain
unstayed and in effect for a period of sixty (60) consecutive days; or
(v) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Issuer to the entry of an
order for relief in an involuntary case under any such law, or the consent
by the Issuer to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Issuer or for any substantial part of the Trust Estate, or the
making by the Issuer of any general assignment for the benefit of
creditors, or the failure by the Issuer generally to pay its debts as such
debts become due, or the taking of any action by the Issuer in furtherance
of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five (5) days after
the occurrence thereof, written notice in the form of an Officer's Certificate
of any Default which with the giving of notice and the lapse of time would
become an Event of Default under clause (iii), its status and what action the
Issuer is taking or proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. (a) If an
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee or the Holders of Notes representing not less than a majority
of the principal amount of the Notes Outstanding, voting as a group, may declare
all the Notes to be immediately due and payable, by a notice in writing to the
Issuer (and to the Indenture Trustee if given by Noteholders), and upon any such
declaration the unpaid principal amount of such Notes, together with accrued and
unpaid interest thereon through the date of acceleration, shall become
immediately due and payable.
(b) At any time after a declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the amount due has been
obtained by the Indenture Trustee as hereinafter provided in this Article V, the
Holders of Notes representing a majority of the principal amount of the Notes
Outstanding, by written notice to the Issuer and the Indenture Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(A) all sums paid or advanced by the Indenture Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee and its agents and counsel and other amounts due and
owing to the Indenture Trustee pursuant to Section 6.7; and
(B) all payments of principal of and interest on all Notes and all
other amounts that would then be due hereunder or upon such Notes if the
Event of Default giving rise to such acceleration had not occurred; and
(ii) all Events of Default, other than the nonpayment of the principal
of the Notes that has become due solely by such acceleration, have been
cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. (a) The Issuer covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of five (5) days, or (ii) default is made in
the payment of the principal of or any installment of the principal of any Note
when the same becomes due and payable, the Issuer shall, upon demand of the
Indenture Trustee,
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pay to the Indenture Trustee, for the benefit of the Holders of the Notes, the
whole amount then due and payable on such Notes for principal and interest and
all other amounts that would then be due hereunder or upon such Notes, with
interest upon the overdue principal at the applicable Note Interest Rate and, to
the extent payment at such rate of interest shall be legally enforceable, upon
overdue installments of interest at the applicable Note Interest Rate and in
addition thereto such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and counsel
and other amounts due and owing to the Indenture Trustee pursuant to Section
6.7.
(b) In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, subject to the Basic Documents, the monies
adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the Indenture Trustee
may, as more particularly provided in Section 5.4, in its discretion, proceed to
protect and enforce its rights and the rights of the Noteholders, by such
appropriate Proceedings as the Indenture Trustee shall deem most effective to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes, Proceedings under Title 11 of the United States Code or
any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial Proceedings relative to the Issuer or other
obligor upon the Notes, or to the property of the Issuer or such other obligor,
the Indenture Trustee, irrespective of whether the principal of any Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee shall have made any demand
pursuant to the provisions of this Section 5.3, shall be entitled and empowered,
by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and
all other amounts due and owing to the Trustee pursuant to Section 6.7) and
of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Notes in any election of a trustee, a standby
trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any monies or other property payable or
deliverable on any such claims and to pay all amounts received with respect
to the claims of the Noteholders and of the Indenture Trustee on their
behalf; and
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(iv) to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture
Trustee or the Holders of Notes allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other amounts due and
owing to the Trustee pursuant to Section 6.7.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents, attorneys and counsel, shall be
for the ratable benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.4 Remedies; Priorities. (a) If an Event of Default shall have
occurred and be continuing, the Indenture Trustee may do one or more of the
following (subject to Section 5.5):
(i) institute Proceedings in its own name and as trustee of an express
trust for the collection of all amounts then payable on the Notes or under
this Indenture with respect thereto, whether by declaration or otherwise,
enforce any judgment obtained, and collect from the Issuer and any other
obligor upon such Notes monies adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Collateral;
(iii) exercise any remedies of a secured party under the Relevant UCC
and take any other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee and the Noteholders; and
(iv) sell the Collateral or any portion thereof or rights or interest
therein, at one or more public or private sales called and conducted in any
manner permitted by law;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Collateral following an Event of Default, other than an Event of
Default described in Section 5.1(i) or (ii), unless (A) the Holders of one
hundred percent (100%) of the principal amount of the Notes Outstanding consent
thereto, (B) the proceeds of such sale or liquidation are sufficient to pay in
full the principal of and the accrued interest on the outstanding Notes or (C)
the Indenture Trustee determines that the Collateral will not continue to
provide sufficient funds for the payment of principal of and interest on the
Notes as they would have become due if the Notes had not been declared due and
payable, and the Indenture Trustee obtains the consent of Holders of sixty-six
and two-thirds percent (66 2/3%) of the principal amount of the Notes
Outstanding. In determining such
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sufficiency or insufficiency with respect to clauses (B) and (C) above, the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as to
the feasibility of such proposed action and as to the sufficiency of the
Collateral for such purpose.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property in the order of priority
set forth in Section 2.8.
The Indenture Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 5.4. At least fifteen (15) days before such
record date, the Issuer shall mail to each Noteholder and the Indenture Trustee
a notice that states the record date, the payment date and the amount to be
paid.
SECTION 5.5 Optional Preservation of the Receivables. If the Notes have
been declared to be due and payable under Section 5.2 following an Event of
Default, and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to maintain possession
of the Collateral and apply proceeds as if there had been no declaration of
acceleration; provided, however, that Available Funds shall be applied in
accordance with such declaration of acceleration in the manner specified in
Section 4.6(c) of the Sale and Servicing Agreement. It is the desire of the
parties hereto and the Noteholders that there be at all times sufficient funds
for the payment of principal of and interest on the Notes, and the Indenture
Trustee shall take such desire into account when determining whether or not to
maintain possession of the Collateral. In determining whether to maintain
possession of the Collateral, the Indenture Trustee may, but need not, obtain
and conclusively rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Collateral for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(a) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(b) the Holders of not less than twenty-five percent (25%) of the principal
amount of the Notes Outstanding have made written request to the Indenture
Trustee to institute such Proceeding in respect of such Event of Default in its
own name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred in
complying with such request;
(d) the Indenture Trustee for sixty (60) days after its receipt of such
written notice, request and offer of the required indemnity has failed to
institute such Proceedings; and
(e) no direction inconsistent with such written request has been given to
the Indenture Trustee during such sixty (60) day period by the Holders of a
majority of the principal amount of the Notes Outstanding.
It is understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of Notes,
each representing less than a majority of the principal amount of the Notes
Outstanding, the Indenture Trustee in its sole discretion may
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determine what action, if any, shall be taken, notwithstanding any other
provisions of this Indenture and the Indenture Trustee shall not be liable for
any action taken pursuant to this Section.
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and
Interest. Notwithstanding any other provisions in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest and any other amount due, if any, on
such Note on or after the respective due dates thereof expressed in such Note or
in this Indenture (or, in the case of redemption, on or after the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies. If the Indenture Trustee
or any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned for
any reason or has been determined adversely to the Indenture Trustee or to such
Noteholder, then and in every such case the Issuer, the Indenture Trustee and
the Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of the
Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or any
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Holders of a majority of the
principal amount of the Notes Outstanding shall have the right to direct the
time, method and place of conducting any Proceeding for any remedy available to
the Indenture Trustee with respect to the Notes or exercising any trust or power
conferred on the Indenture Trustee; provided that:
(a) such written direction coupled with such satisfactory indemnity of the
Indenture Trustee shall not be in conflict with any rule of law or with this
Indenture;
(b) subject to the express terms of Section 5.4, any written direction to
the Indenture Trustee to sell or liquidate the Collateral shall be by Holders of
Notes representing not less than one hundred percent (100%) of the principal
amount of the Notes Outstanding;
(c) if the conditions set forth in Section 5.5 have been satisfied and the
Indenture Trustee elects to retain the Collateral pursuant to such Section, then
any written direction to the Indenture Trustee by Holders of Notes representing
less than one hundred percent (100%) of the principal amount of the Notes
Outstanding to sell or liquidate the Collateral shall be of no force and effect;
and
(d) the Indenture Trustee may take any other action deemed proper by the
Indenture Trustee that is not inconsistent with such written direction.
Notwithstanding the rights of Noteholders set forth in this Section, subject to
Section 6.1, the Indenture Trustee need not take any action that it reasonably
believes might involve it in costs,
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expenses and liabilities for which it will not be adequately indemnified or
might materially adversely affect the rights of any Noteholders not consenting
to such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.2, the
Holders of Notes representing not less than a majority of the principal amount
of the Notes Outstanding may waive any past Default or Event of Default and its
consequences except a Default or Event of Default (a) in the payment of
principal of or interest on any of the Notes or (b) in respect of a covenant or
provision hereof that cannot be amended, supplemented or modified without the
consent of the Holder of each Note. In the case of any such waiver, the Issuer,
the Indenture Trustee and the Holders of the Notes shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
Upon any such waiver, such Default or Event of Default shall cease to exist
and be deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Note by such Holder's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorney's fees and
expenses, 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 5.13 shall not apply to (a) any suit instituted
by the Indenture Trustee, (b) any suit instituted by any Noteholder or group of
Noteholders, in each case holding in the aggregate more than ten percent (10%)
of the principal amount of the Notes Outstanding or (c) any suit instituted by
any Noteholder for the enforcement of the payment of principal of or interest on
any Note on or after the respective due dates expressed in such Note and in this
Indenture (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture, and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.4(b).
SECTION 5.16 Performance and Enforcement of Certain Obligations. (a)
Promptly following a request from the Indenture Trustee to do so, and at the
Administrator's expense, the Issuer shall take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and observance
by the Seller and the Servicer, as applicable, of each of their obligations to
the Issuer under or in connection with the Sale and Servicing Agreement or by
the
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Seller of each of its obligations under or in connection with the Purchase
Agreement, and to exercise any and all rights, remedies, powers and privileges
lawfully available to the Issuer under or in connection with the Sale and
Servicing Agreement to the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on the part of the
Seller or the Servicer thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by the Seller or the
Servicer of each of their obligations under the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and at the written direction (which direction coupled with the
satisfactory indemnity of the Indenture Trustee shall be in writing or by
telephone, confirmed in writing promptly thereafter) of the Holders of sixty-
six and two-thirds percent (66 2/3%) of the principal amount of the Notes
Outstanding, shall, exercise all rights, remedies, powers, privileges and claims
of the Issuer against the Seller or the Servicer under or in connection with the
Sale and Servicing Agreement, or against the Seller under or in connection with
the Purchase Agreement, including the right or power to take any action to
compel or secure performance or observance by the Seller or the Servicer, as the
case may be, of each of their obligations to the Issuer thereunder and to give
any consent, request, notice, direction, approval, extension, or waiver under
the Sale and Servicing Agreement or the Purchase Agreement, as the case may be,
and any right of the Issuer to take such action shall be suspended.
(c) Promptly following a request from the Indenture Trustee to do so and at
the Administrator's expense, the Issuer agrees to take all such lawful action as
the Indenture Trustee may request to compel or secure the performance and
observance by MBCC of each of its obligations to the Seller under or in
connection with the Purchase Agreement in accordance with the terms thereof, and
to exercise any and all rights, remedies, powers and privileges lawfully
available to the Issuer under or in connection with the Purchase Agreement to
the extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Seller thereunder and the
institution of legal or administrative actions or proceedings to compel or
secure performance by MBCC of each of its obligations under the Purchase
Agreement.
(d) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and, at the written direction (which direction coupled with the
satisfactory indemnity of the Indenture Trustee shall be in writing or by
telephone (confirmed in writing promptly thereafter)) of the Holders of
sixty-six and two-thirds percent (66 2/3%) of the principal amount of the Notes
Outstanding, shall, exercise all rights, remedies, powers, privileges and claims
of the Seller against MBCC under or in connection with the Purchase Agreement,
including the right or power to take any action to compel or secure performance
or observance by MBCC of each of its obligations to the Seller thereunder and to
give any consent, request, notice, direction, approval, extension or waiver
under the Purchase Agreement, and any rights of the Seller to take such action
shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee. (a) If an Event of Default has
occurred and is continuing of which a Responsible Officer has actual knowledge,
the Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Indenture Trustee; and
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(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and, if required by the terms
of this Indenture, conforming to the requirements of this Indenture;
however, the Indenture Trustee shall examine the certificates and opinions
to determine whether or not they reasonable conform to the requirements of
this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph 6.1(c) does not limit the effect of paragraph (b)
of this Section 6.1;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved by
a court of competent jurisdiction that the Indenture Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.11.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b), (c) and (g) of this Section
6.1.
(e) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(f) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or indemnity satisfactory to it against such risk or liability is
not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Indenture Trustee shall be
subject to the provisions of this Section 6.1 and to the provisions of the TIA.
(i) The Indenture Trustee shall not be charged with knowledge of any Event
of Default unless either (1) a Responsible Officer shall have actual knowledge
of such Event of Default or (2) written notice of such Event of Default shall
have been given to and actually received by the Indenture Trustee in accordance
with the provisions of this Indenture.
SECTION 6.2 Rights of Indenture Trustee. (a) The Indenture Trustee may
conclusively rely and shall be fully protected in relying on any document
believed by it to be genuine and to have been signed or presented by the
purportedly proper Person. The Indenture Trustee need not investigate any fact
or matters stated in the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require and shall be entitled to receive an Officer's Certificate or an Opinion
of Counsel. The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officer's Certificate or Opinion
of Counsel unless it is proved by a court of competent jurisdiction that the
Indenture Trustee was negligent in such reliance.
(c) The Indenture Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or a custodian or nominee, and the Indenture Trustee shall not be
responsible for any misconduct or negligence on the part of, or
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for the supervision of, any such agent, attorney, custodian or nominee appointed
with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that such action or omission by the
Indenture Trustee does not constitute willful misconduct, negligence or bad
faith.
(e) The Indenture Trustee may consult with counsel of its choice, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Indenture Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the written request or
direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Indenture Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(g) The Indenture Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Indenture Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Indenture Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney
selected by it for such purpose.
SECTION 6.3 Individual Rights of Indenture Trustee. The Indenture
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Issuer or its Affiliates with
the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent hereunder may do the same
with like rights.
SECTION 6.4 Indenture Trustee's Disclaimer. The Indenture Trustee (i)
shall not be responsible for, and makes no representation or warranty, as to the
legality, validity, sufficiently, enforceablity or adequacy of this Indenture,
the Collateral or the Notes or the authenticity of the Notes and (ii) shall not
be accountable for the Issuer's use of the proceeds from the Notes, or
responsible for any statement of the Issuer in this Indenture or in any document
issued in connection with the sale of the Notes or in the Notes other than the
Indenture Trustee's certificate of authentication. Except as expressly set forth
in the Basic Documents, the Indenture Trustee shall have no obligation to
administer, service or collect the Receivables or to maintain or otherwise
supervise the administration, servicing or collection of the Receivables. The
Indenture Trustee shall have no duty to monitor the performance of the Servicer
nor shall it have any liability in connection with the malfeasance or
nonfeasance by the Servicer. The Indenture Trustee shall have no liability in
connection with compliance by the Servicer with statutory or regulatory
requirements related to the Receivables or any provision of this Indenture, the
Sale and Servicing Agreement or any related instrument or agreement. The
Indenture Trustee shall not make or be deemed to have made any representations
or warranties with respect to the applicable Basic Documents or the validity or
sufficiency of any assignment of the Receivables to the Indenture Trustee.
SECTION 6.5 Notice of Defaults. If a Default occurs and is continuing and
if it is actually known to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to each Noteholder notice of such Default within
ninety (90) days after it occurs. Except in the case of a Default in payment of
principal of or interest on any Note (including payments pursuant to the
mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Noteholders.
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SECTION 6.6 Reports by Indenture Trustee to Holders. Within a reasonable
period of time after the end of each calendar year, but not later than the
latest date permitted by law, in each case as determined by the Servicer, the
Indenture Trustee shall deliver to each Person who at any time during the
preceding calendar year was a Noteholder a statement prepared by the Servicer
pursuant to Section 3.9 of the Sale and Servicing Agreement containing the
information which is required to be expressed in the Payment Date statements as
a dollar amount per $1,000 of original denomination of the Notes or Class of
Notes, as applicable, aggregated for such calendar year, for the purposes of
such Noteholder's preparation of Federal income tax returns.
SECTION 6.7 Compensation and Indemnity. (a) The Issuer shall, or shall
cause the Administrator to, pay to the Indenture Trustee from time to time
reasonable compensation for its services in accordance with the prevailing fee
agreement. The Indenture Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Issuer shall, or shall
cause the Administrator to, reimburse the Indenture Trustee for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Indenture Trustee's agents, counsel, accountants and experts. The Issuer shall,
or shall cause the Administrator to, indemnify the Indenture Trustee against any
and all loss, liability or expense (including attorneys' fees and expenses)
incurred by it in connection with the administration of this trust and the
performance of its duties hereunder and under the Basic Documents. The Indenture
Trustee shall notify the Issuer and the Administrator promptly of any claim for
which it may seek indemnity. Failure by the Indenture Trustee to so notify the
Issuer and the Administrator shall not relieve the Issuer or the Administrator
of its obligations hereunder. The Issuer shall, or shall cause the Servicer to,
defend any such claim, and the Indenture Trustee may have separate counsel and
the Issuer shall, or shall cause the Servicer to, pay the fees and expenses of
such counsel. Neither the Issuer nor the Administrator need reimburse any
expense or indemnity against any loss, liability or expense incurred by the
Indenture Trustee through the Indenture Trustee's own willful misconduct,
negligence or bad faith.
(b) The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section 6.7 arising prior to the resignation or removal of the Indenture
Trustee shall remain enforceable notwithstanding such resignation or removal and
the subsequent discharge of this Indenture. When the Indenture Trustee incurs
expenses after the occurrence of a Default specified in Section 5.1(iv) or (v)
with respect to the Issuer, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 Replacement of Indenture Trustee. (a) No resignation or
removal of the Indenture Trustee, and no appointment of a successor Indenture
Trustee, shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.8. The Indenture Trustee
may resign at any time by so notifying the Issuer. The Holders of a majority in
principal amount of the Notes Outstanding may remove the Indenture Trustee
without cause by so notifying the Indenture Trustee and the Issuer in writing
and may appoint a successor Indenture Trustee. The Issuer shall remove the
Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture Trustee in such event
being referred to herein as the retiring Indenture Trustee), the Issuer shall
promptly appoint a successor Indenture Trustee.
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(b) Any successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Issuer. Thereupon,
the resignation or removal of the retiring Indenture Trustee shall become
effective, and the successor Indenture Trustee shall have all the rights, powers
and duties of the Indenture Trustee under this Indenture; provided, however,
that all amounts due and owing the predecessor trustee have been paid. The
successor Indenture Trustee shall mail a notice of its succession to each
Noteholder and to the Rating Agencies. The retiring Indenture Trustee shall
promptly transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee.
(c) If a successor Indenture Trustee does not take office within sixty (60)
days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Holders of a majority in principal amount
of the Notes Outstanding may petition any court of competent jurisdiction for
the appointment of a successor Indenture Trustee. If the Indenture Trustee fails
to comply with Section 6.11, any Noteholder may petition any court of competent
jurisdiction for the removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee.
(d) Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section 6.8, the Issuer's and the Administrator's obligations under Section
6.7 shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Merger. (a) If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation or
banking association without any further act shall be the successor Indenture
Trustee; provided, that such corporation or banking association shall be
otherwise qualified and eligible under Section 6.11. The Indenture Trustee shall
provide the Rating Agencies with prior written notice of any such transaction.
(b) In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture, any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Notes so
authenticated, and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee. In all such cases such certificates shall
have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee. (a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver an instrument to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust (other than the
Certificate Distribution Account and the Class B Reserve Account and any amounts
or property held therein or credited thereto), and to vest in such Person or
Persons, in such capacity and for the benefit of the Noteholders, such title to
the Trust Estate, or any part hereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Indenture Trustee may consider necessary or desirable. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 6.11 and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.8 hereof.
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(b) Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and exercised
or performed by the Indenture Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee shall not be authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to any of the Trust Estate in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Indenture
Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact, with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Indenture
Trustee or its parent shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition
and shall have a long-term debt rating of investment grade by each of the Rating
Agencies or shall otherwise be acceptable to each of the Rating Agencies. The
Indenture Trustee shall comply with TIA Section 310(b).
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.13 Pennsylvania Motor Vehicle Sales Finance Act Licenses. The
Indenture Trustee shall use its reasonable efforts to maintain the effectiveness
of all licenses required under the Pennsylvania Motor Vehicle Sales Finance Act
in connection with this Indenture and the transactions contemplated hereby until
the lien and security interest of this Indenture shall no longer be in effect in
accordance with the terms hereof.
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ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of
Noteholders. The Issuer shall furnish or cause to be furnished to the Indenture
Trustee (a) not more than five (5) days after each Record Date, a list, in such
form as the Indenture Trustee may reasonably require, of the names and addresses
of the Holders of Notes as of such Record Date and (b) at such other times as
the Indenture Trustee may request in writing, within thirty (30) days after
receipt by the Issuer of any such request, a list of similar form and content as
of a date not more than ten (10) days prior to the time such list is furnished;
provided, however, that so long as (i) the Indenture Trustee is the Note
Registrar or (ii) the Notes are issued as Book-Entry Notes, no such list shall
be required to be furnished.
SECTION 7.2 Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.1 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.1 upon receipt of
a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have the
protection of TIA Section 312(c).
(d) A copy of the Officer's Certificate required under Section 3.10(a) of
the Sale and Servicing Agreement may be obtained by any Certificateholder by a
request in writing to the Owner Trustee, or by any Noteholder or Person
certifying that it is a Note Owner by a request in writing to the Indenture
Trustee, in either case addressed to the applicable Corporate Trust Office. Upon
the telephone request of the Owner Trustee, the Indenture Trustee shall promptly
furnish the Owner Trustee a list of Noteholders as of the date specified by the
Owner Trustee.
SECTION 7.3 Reports by Issuer. (a) The Issuer shall:
(i) file with the Indenture Trustee, within fifteen (15) days after
the Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the Issuer may be
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act;
(ii) file with the Indenture Trustee and the Commission in accordance
with the rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with respect
to compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Noteholders described in TIA Section 313(c)) such
summaries of any information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a) and by
rules and regulations prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall correspond to the calendar year.
SECTION 7.4 Reports by Indenture Trustee. (a) If required by TIA Section
313(a), within sixty (60) days after each March 31, beginning with March 31,
1999, the Indenture Trustee shall mail to each Noteholder as required by TIA
Section 313(c) a brief report dated as of such date that
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complies with TIA Section 313(a). The Indenture Trustee in writing also shall
comply with TIA Section 313(b).
(b) A copy of each report at the time of its mailing to Noteholders shall
be filed by the Indenture Trustee with the Commission and each stock exchange,
if any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee in writing if and when the Notes are listed on any stock exchange.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture and the Sale and
Servicing Agreement. The Indenture Trustee shall apply all such money received
by it as provided in this Indenture and the Sale and Servicing Agreement. Except
as otherwise expressly provided in this Indenture, if any default occurs in the
making of any payment or performance under any agreement or instrument that is
part of the Collateral, the Indenture Trustee may take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.2 Establishment of Accounts. (a) On or prior to the Closing
Date, the Issuer shall cause the Servicer to establish and maintain, in the name
of the Indenture Trustee, the Collection Account and the Payahead Account for
the benefit of the Noteholders and the Certificateholders, and the Note
Distribution Account and the Class A Reserve Account for the benefit of the
Noteholders, as provided in Sections 4.1, 4.7 and 4.10 of the Sale and Servicing
Agreement.
(b) On or before each Payment Date, the Servicer shall deposit in the
Collection Account all amounts required to be deposited therein with respect to
the related Collection Period as provided in Section 4.2 of the Sale and
Servicing Agreement. On or before each Payment Date, all amounts required to be
deposited in the Note Distribution Account and the Certificate Distribution
Account, as applicable, with respect to the related Collection Period pursuant
to Sections 4.6 and 4.7 of the Sale and Servicing Agreement shall be withdrawn
by the Indenture Trustee or any Paying Agent from the Collection Account and/or
the Reserve Accounts, as applicable, and deposited to the Note Distribution
Account, the Certificate Distribution Account and/or the Reserve Accounts, as
applicable, including for payment to Noteholders, Certificateholders and the
Seller, as applicable, in accordance with Section 4.6 of the Sale and Servicing
Agreement and Section 2.8 on such Payment Date.
SECTION 8.3 General Provisions Regarding Accounts. (a) So long as no
Default or Event of Default shall have occurred and be continuing, all or a
portion of the funds in the Collection Account, the Payahead Account and the
Class A Reserve Account shall be invested by the Indenture Trustee at the
written direction of the Servicer in Permitted Investments as provided in
Sections 4.1 and 4.7 of the Sale and Servicing Agreement. All income or other
gain (net of losses and investment expenses) from investments of monies
deposited in the Collection Account, the Payahead Account and the Reserve
Accounts shall be withdrawn by the Indenture Trustee or any Paying Agent, as the
case may be, from such accounts and deposited or distributed (but only under the
circumstances set forth in the Sale and Servicing Agreement in the case of the
Reserve Accounts), as provided in Sections 4.1 and 4.7 of the Sale and Servicing
Agreement. The Servicer shall not direct the Indenture Trustee or any Paying
Agent to make any investment of any funds or to sell any investment held in any
of the Trust Accounts or the Reserve Accounts unless the security interests
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granted and perfected in such accounts will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee, to make any such investment or sale, if requested by the Indenture
Trustee, the Issuer shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), neither the Indenture Trustee, any Paying
Agent nor the Owner Trustee shall in any way be held liable by reason of any
insufficiency in any of the Trust Accounts or the Reserve Accounts, resulting
from any loss on any Permitted Investment included therein, except for losses
attributable to the failure by the Indenture Trustee, any Paying Agent or the
Owner Trustee, as the case may be, to make payments on such Permitted
Investments issued by the Indenture Trustee, any Paying Agent or the Owner
Trustee, as applicable, in their respective commercial capacities as principal
obligors and not as trustees, in accordance with their terms. The Indenture
Trustee shall have no obligation to invest or reinvest any amounts held
hereunder in the absence of written investment direction.
SECTION 8.4 Release of Collateral. (a) Subject to the payment of its fees
and expenses pursuant to Section 6.7, the Indenture Trustee may, and when
required by the provisions of this Indenture, shall, execute instruments to
release property from the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article VIII
shall be bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
monies.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.7 have
been paid in full, release any remaining portion of the Trust Estate that
secured the Notes from the lien of this Indenture and release to the Issuer or
any other Person entitled thereto any funds then on deposit in the Collection
Account, the Payahead Account, the Note Distribution Account or the Class A
Reserve Account. The Indenture Trustee shall release property from the lien of
this Indenture pursuant to this Section 8.4(b) only upon receipt of an Issuer
Request accompanied by an Officer's Certificate, an Opinion of Counsel and (if
required by the TIA) Independent Certificates in accordance with TIA Sections
314(c) and 314(d)(1) meeting the applicable requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee shall receive at
least seven (7) Business Days prior written notice when requested by the Issuer
to take any action pursuant to Section 8.4(a), accompanied by copies of any
instruments involved, and the Indenture Trustee shall also require, except in
connection with any action contemplated by Section 8.4(b), as a condition to
such action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of the provisions of this Indenture;
provided, however, that such Opinion of Counsel shall not be required to express
an opinion as to the fair value of the Trust Estate. Counsel rendering any such
opinion may rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders. (a)
Without the consent of the Holders of any Notes but with prior notice to the
Rating Agencies, the Issuer and the
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Indenture Trustee, when authorized by an Issuer Order, at any time and from time
to time, may enter into one or more indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as in force at the date of
the execution thereof), in form satisfactory to the Indenture Trustee, for any
of the following purposes:
(i) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another Person to the Issuer, and the assumption by
any such successor of the covenants of the Issuer herein and in the Notes
contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein conferred
upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property
(other than the Certificate Distribution Account and the Class B Reserve
Account or any amounts or property held therein or credited thereto) to or
with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any
other provision herein or in any supplemental indenture or to make any
other provisions with respect to matters or questions arising under this
Indenture which will not be inconsistent with other provisions of the
Indenture;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the TIA or under any similar federal statute hereafter
enacted and to add to this Indenture such other provisions as may be
expressly required by the TIA;
provided, however, that (i) such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Noteholder, (ii) the Rating Agency Condition shall have been satisfied with
respect to such action and (iii) such action shall not, as evidenced by an
Opinion of Counsel, cause the Issuer to be characterized for Federal or any then
Applicable Tax State income tax purposes as an association taxable as a
corporation or otherwise have any material adverse impact on the Federal or any
then Applicable Tax State income taxation of any Notes Outstanding or
outstanding Certificates or any Noteholder or Certificateholder. The Indenture
Trustee is hereby authorized to join in the execution of any such supplemental
indenture and to make any further appropriate agreements and stipulations that
may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, with the consent of not less than a majority of the principal amount
of the Notes Outstanding and with prior notice to the Rating Agencies, 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 (i) such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder, (ii) the Rating Agency
Condition shall have been satisfied with respect to such action and (iii) such
action shall not, as evidenced by an Opinion of Counsel, cause the Issuer to be
characterized for Federal or any then Applicable Tax State income tax purposes
as an association taxable as a corporation or otherwise
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have any material adverse impact on the Federal or any then Applicable Tax State
income taxation of any Notes Outstanding or outstanding Certificates or any
Noteholder or Certificateholder.
SECTION 9.2 Supplemental Indentures with Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies and with the consent of the Holders of
not less than a majority of the principal amount of the Notes Outstanding, by
Act of such Holders delivered to the Issuer and the Indenture Trustee, enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided, however, that (i) such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder, (ii) the Rating Agency
Condition shall have been satisfied with respect to such action and (iii) such
action shall not, as evidenced by an Opinion of Counsel, cause the Issuer to be
characterized for Federal or any then Applicable Tax State income tax purposes
as an association taxable as a corporation or otherwise have any material
adverse impact on the Federal or any then Applicable Tax State income taxation
of any Notes Outstanding or outstanding Certificates or any Noteholder or
Certificateholder; and provided, further, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Note affected
thereby:
(i) change any Final Payment Date or the date of payment of any
installment of principal of or interest on any Note, or reduce the
principal amount thereof, the interest rate thereon or the Redemption Price
with respect thereto, change the provisions of this Indenture relating to
the application of collections on, or the proceeds of the sale of, the
Collateral to payment of principal of or interest on the Notes, or change
any place of payment where, or the coin or currency in which, any Note or
the interest thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to the
payment of any such amount due on the Notes on or after the respective due
dates thereof (or, in the case of redemption, on or after the Redemption
Date);
(ii) reduce the percentage of the principal amount of the Notes
Outstanding, the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture;
(iii) modify or alter the provision of the Indenture regarding the
voting of Notes held by the Trust, the Seller, the Servicer, an affiliate
of any of them or any Obligor;
(iv) modify or alter the provisions of the proviso to the definition
of the term "Outstanding";
(v) reduce the percentage of the principal amount of the Notes
Outstanding required to direct the Indenture Trustee to sell or liquidate
the Collateral pursuant to Section 5.4 if the proceeds of such sale would
be insufficient to pay the principal amount of and accrued but unpaid
interest on the Notes;
(vi) modify any provision of this Indenture specifying a percentage of
the aggregate principal amount of the Notes necessary to amend this
Indenture or the other Basic Documents except to increase any percentage
specified herein or to provide that certain additional provisions of this
Indenture or the Basic Documents cannot be modified or waived without the
consent of the Holder of each Outstanding Note affected thereby;
(vii) modify any of the provisions of this Indenture in such manner as
to affect the calculation of the amount of any payment of interest or
principal due on any Note on any Payment Date (including the calculation of
any of the individual components of such calcula-
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tion) or to affect the rights of the Holders of Notes to the benefit of any
provisions for the mandatory redemption of the Notes contained herein; or
(viii) 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 Collateral or, except
as otherwise permitted or contemplated herein, terminate the lien of this
Indenture on any such Collateral at any time subject hereto or deprive the
Holder of any Note of the security provided by the lien of this Indenture.
It shall not be necessary for any Act of Noteholders under this Section 9.2
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of any
supplemental indenture pursuant to this Section 9.2, the Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture, such notice to be prepared by the Issuer. Any failure of
the Indenture Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.3 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive and,
subject to Sections 6.1 and 6.2, shall be fully protected in conclusively
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and that all
conditions precedent to the execution and delivery of such supplemental
indenture have been satisfied. The Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities, indemnities or immunities
under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the Indenture Trustee, the Issuer and the Holders of the Notes shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in effect
so long as this Indenture shall then be qualified under the Trust Indenture Act.
SECTION 9.6 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform to any such
supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Indenture Trustee in exchange for Outstanding
Notes.
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 Redemption. The Notes are subject to redemption in whole,
but not in part, at the direction of the Servicer pursuant to Section 8.1(a) of
the Sale and Servicing Agreement, on any
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Payment Date on which the Servicer exercises its option to purchase the assets
of the Issuer pursuant to said Section 8.1(a), and the amount paid by the
Servicer shall be treated as collections of Receivables and applied to pay the
unpaid principal amount of the Notes and the Certificate Balance, in each case,
plus accrued and unpaid interest thereon. The Servicer or the Issuer shall
furnish the Rating Agencies and the Noteholders notice of such redemption. If
the Notes are to be redeemed pursuant to this Section 10.1, the Servicer or the
Issuer shall furnish written notice of such election to the Indenture Trustee
not later than twenty (20) days prior to the Redemption Date and the Issuer,
upon the transfer of adequate funds therefor by the Servicer, shall deposit by
10:00 A.M. (New York City time) on the Business Day prior to the Redemption Date
with the Indenture Trustee in the Note Distribution Account the Redemption Price
of the Notes to be redeemed, whereupon all such Notes shall be due and payable
on the Redemption Date.
SECTION 10.2 Form of Redemption Notice. Notice of redemption under
Section 10.1 shall be given by the Indenture Trustee at the expense of the
Issuer by first-class mail, postage prepaid, or by facsimile mailed or
transmitted promptly following receipt of notice from the Issuer or Servicer
pursuant to Section 10.1, but not later than ten (10) days prior to the
applicable Redemption Date, to each Holder of Notes as of the close of business
on the Record Date preceding the applicable Redemption Date, at such Holder's
address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered for payment of
the Redemption Price (which shall be the office or agency of the Issuer to
be maintained as provided in Section 3.2).
Notice of redemption of the Notes shall be given by the Indenture Trustee in the
name and at the expense of the Issuer. Failure to give notice of redemption, or
any defect therein, to any Holder of any Note shall not impair or affect the
validity of the redemption of any other Note.
SECTION 10.3 Notes Payable on Redemption Date. The Notes to be redeemed
shall, following notice of redemption as required by Section 10.2 on the
Redemption Date become due and payable at the Redemption Price and (unless the
Issuer shall default in the payment of the Redemption Price) no interest shall
accrue on the Redemption Price for any period after the date to which accrued
interest is calculated for purposes of calculating the Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc. (a) Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with, (ii) (if required by the TIA) an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
this Section 11.1, except that, in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished.
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Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(A) a statement that each signatory of such certificate or opinion has
read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(B) 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;
(C) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(D) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with.
(b)(i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of another property or securities subject to the lien of this Indenture,
the Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within ninety (90) days of such deposit) to
the Issuer of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (i) above, the Issuer
shall also deliver to the Indenture Trustee an Independent Certificate as
to the same matters, if the fair value to the Issuer of the property or
securities to be so deposited and of all other such property or securities
made the basis of any such withdrawal or release since the commencement of
the then-current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) above and this clause (ii),
is ten percent (10%) or more of the principal amount of the Notes
Outstanding, but such a certificate need not be furnished with respect to
any property or securities so deposited, if the fair value thereof to the
Issuer as set forth in the related Officer's Certificate is less than
$25,000 or less than one percent (1%) of the principal amount of the Notes
Outstanding.
(iii) Whenever any property or securities are to be released from the
lien of this Indenture, the Issuer shall also furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within ninety (90)
days of such release) of the property or securities proposed to be released
and stating that in the opinion of such person the proposed release will
not impair the security under this Indenture in contravention of the
provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signer thereof as to the matters described in clause (iii) above, the
Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property, other than property as contemplated
by clause (v) below or securities released from the lien of this Indenture
since the commencement of the then-current calendar year, as set forth in
the certificates required by clause (iii) above and this clause (iv),
equals ten percent (10%) or more of the principal amount of the Notes
Outstanding, but such certificate need not be furnished in the case of any
release of property or securities if the fair value thereof as set forth in
the related Officer's Certificate is less than $25,000 or less than one
percent (1%) of the principal amount of the then Outstanding Notes.
(v) Notwithstanding Section 2.10 or any other provisions of this
Section 11.1, the Issuer may, without compliance with the requirements of
the other provisions of this Section 11.1,
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(A) collect, liquidate, sell or otherwise dispose of Receivables and
Financed Vehicles as and to the extent permitted or required by the Basic
Documents and (B) make cash payments out of the Collection Account, the
Payahead Account, the Note Distribution Account, the Certificate
Distribution Account and the Reserve Accounts as and to the extent
permitted or required by the Basic Documents.
SECTION 11.2 Form of Documents Delivered to Indenture Trustee. (a) 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 say such Person may certify or give an opinion
as to such matters in one or several documents.
(b) Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, the Seller, the Administrator or the
Issuer, stating that the information with respect to such factual matters is in
the possession of the Servicer, the Seller, the Administrator or the Issuer,
unless such Authorized 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.
(c) Where any Person is required to make, give or execute two or more
applications, requests, comments, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to conclusively rely upon the
truth and accuracy of any statement or opinion contained in any such document as
provided in Article VI.
SECTION 11.3 Acts of Noteholders. (a) Any written request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except as
herein otherwise expressly provided such action shall become effective when such
instrument or instruments are delivered to the Indenture Trustee, and, where it
is hereby expressly required, to the Issuer. Such instrument or instruments (and
the action embodied herein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such written 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 6.1) conclusive in favor of the Indenture Trustee and
the Issuer, if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any such written
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be provided by the Note Register.
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(d) Any written request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. (a) Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture shall be in writing and if such request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders is to be made upon,
given or furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by the Issuer, shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Indenture Trustee at its Corporate Trust Office;
or
(ii) the Issuer by the Indenture Trustee or by any Noteholder, shall
be sufficient for every purpose hereunder if in writing and mailed
first-class, postage prepaid to the Issuer addressed to: Daimler-Benz
Vehicle Owner Trust 1998-A, in care of Chase Manhattan Bank Delaware, 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration, with a copy to the Administrator at 000 Xxxxxxx 0, Xxxxx
000, Xxxxxxx, Xxxxxxxxxxx 00000-0000, Attention: Executive Vice President
and Treasurer, or at any other address previously furnished in writing to
the Indenture Trustee by the Issuer or the Administrator. The Issuer shall
promptly transmit any notice received by it from the Noteholders to the
Indenture Trustee.
(b) Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally
delivered, telecopied or mailed by certified mail, return receipt requested, to
(i) in the case of Moody's, at the following address: Xxxxx'x Investors Service,
Inc., ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and
(ii) in case of S&P, at the following address: Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, 00 Xxxxxxxx (00xx Xxxxx), Xxx
Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance Department.
SECTION 11.5 Notices to Noteholders; Waiver. (a) Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
(b) Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
(c) In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
47
53
(d) Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
SECTION 11.6 Alternate Payment and Notice Provisions. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer may
enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture for such
payments or notices. The Issuer shall furnish to the Indenture Trustee a copy of
each such agreement and the Indenture Trustee shall cause payments to be made
and notices to be given in accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.9 Successors and Assigns. All covenants and agreements in this
Indenture and the Notes by the Issuer shall bind its successors and assigns,
whether so expressed or not. All agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents.
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. Except insofar as the Indenture
Trustee and the Paying Agent are required to (i) make deposits to the Collection
Account, the Certificate Distribution Account and the Class B Reserve Account in
trust on behalf of the Certificateholders, (ii) make payments to the Seller, the
Owner Trustee or the Certificateholders as required herein and in the Sale and
Servicing Agreement, and (iii) give notices to the Seller, the Owner Trustee or
the Certificateholders as required herein and in the Sale and Servicing
Agreement, nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, and the Noteholders, and any other party secured hereunder, and any
other Person with an ownership interest in any part of the Trust Estate, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 11.12 Legal Holiday. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrued for the period from and after any such nominal date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN ITS
ENTIRETY IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 11.14 Counterparts. This Indenture may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
48
54
SECTION 11.15 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
SECTION 11.16 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a Certificate or any other beneficial interest in the Issuer or (iii)
any partner, owner, beneficiary, agent, officer, director, employee or agent of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a Certificate or any other beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed (it being understood that the Indenture
Trustee and the Owner Trustee have no such obligations in their individual
capacities), and except that any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity. For all purposes of this Indenture, in
the performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles VI, VII and VIII of the Trust Agreement.
SECTION 11.17 No Petition. The Indenture Trustee, by entering into this
Indenture, and each Noteholder or Note Owner, by accepting a Note or beneficial
interest in a Note, as the case may be, hereby covenant and agree that they will
not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, this Indenture or any of the Basic
Documents.
SECTION 11.18 Inspection. The Issuer agrees that, with reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees, and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
49
55
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this
Indenture to be duly executed by their respective officers, thereunto duly
authorized and duly attested, all as of the day and year first above written.
DAIMLER-BENZ VEHICLE
OWNER TRUST 1998-A
By: CHASE MANHATTAN BANK
DELAWARE, not in its individual
capacity, but solely as Owner
Trustee
By:
--------------------------------------
Name:
Title:
CITIBANK, N.A.,
not in its individual capacity,
but solely as Indenture Trustee
By:
--------------------------------------
Name:
Title:
56
---------------------------------------------------
STATE OF DELAWARE
ss.:
COUNTY OF NEW CASTLE
---------------------------------------------------
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared , known to
me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said
, a of CHASE MANHATTAN BANK DELAWARE, as
Owner Trustee of DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A, a Delaware business
trust, for the purpose and consideration therein expressed, and in the
capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of [ ],
1998.
--------------------------------------
Notary Public in and for
the State of Delaware.
[Seal]
My commission expires:
---------------------------
00
---------------------------------------------------
XXXXX XX XXX XXXX
ss.:
COUNTY OF NEW YORK
---------------------------------------------------
BEFORE ME, the undersigned authority, a Notary Public in and for said
county and state, on this day personally appeared [ ], known to
me to be the person and officer whose name is subscribed to the foregoing
instrument and acknowledged to me that the same was the act of
[ ], a [ ] of CITIBANK, N.A., and that such
person executed the same as the act of said corporation for the purpose and
consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of [ ],
1998.
--------------------------------------
Notary Public in and for
the State of New York.
[Seal]
My commission expires:
---------------------------
58
EXHIBIT A-1
FORM OF CLASS A-1 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. R-[ ] CUSIP NO. [ ]
DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A
[ ]% CLASS A-1 ASSET BACKED NOTES
Daimler-Benz Vehicle Owner Trust 1998-A, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of [ ] MILLION DOLLARS
payable on each Payment Date in the aggregate amount, if any, payable from the
Note Distribution Account in respect of principal on the Class A-1 Notes
pursuant to Section 2.8 of the Indenture dated as of November 1, 1998 (as
amended, supplemented or otherwise modified and in effect from time to time, the
"Indenture"), between the Issuer and Citibank, N.A., a national banking
association, as Indenture Trustee (in such capacity the "Indenture Trustee");
provided, however, that if not paid prior to such date, the entire unpaid
principal amount of this Class A-1 Note shall be due and payable on the earlier
of January 3, 2000 (the "Class A-1 Final Payment Date") and the Redemption Date,
if any, pursuant to Section 10.1 of the Indenture. Capitalized terms used but
not defined herein are defined in Article I of the Indenture, which also
contains rules as to construction that shall be applicable herein.
The Issuer shall pay interest on this Class A-1 Note at the rate per annum
shown above on each Payment Date until the principal of this Class A-1 Note is
paid or made available for payment, on the principal amount of this Class A-1
Note outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to certain
limitations contained in Section 3.1 of the Indenture. Interest on this Class
A-1 Note will accrue for each Payment Date from and including the previous
Payment Date (or, in the case of the initial Payment Date or if no interest has
been paid, from the Closing Date) to but excluding such Payment Date. Interest
will be computed on the basis of actual days elapsed and a 360-day year. Such
principal of and interest on this Class A-1 Note shall be paid in the manner
specified 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
A-1-1
59
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.
Reference is made to the further provisions of this Class A-1 Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class A-1 Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Class A-1
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]
A-1-2
60
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: [ ], 1998
DAIMLER-BENZ VEHICLE
OWNER TRUST 1998-A,
By: CHASE MANHATTAN BANK
DELAWARE, not in its individual
capacity but solely as Owner Trustee
under the Trust Agreement
By:
------------------------------------
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: [ ], 1998
CITIBANK, N.A.,
not in its individual capacity,
but solely as Indenture Trustee
By:
------------------------------------
Authorized Officer
A-1-3
61
This Class A-1 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its [ ]% Class A-1 Asset Backed Notes, which, together
with the [ ]% Class A-2 Asset Backed Notes, the [ ]% Class A-3 Asset Backed
Notes and the [ ]% Class A-4 Asset Backed Notes (collectively, the "Notes"),
are issued under the Indenture, to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Notes are subject to all terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture.
Principal of the Class A-1 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth (20th)
day of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing December 21, 1998.
As described above, the entire unpaid principal amount of this Class A-1
Note shall be due and payable on the earlier of the Class A-1 Final Payment Date
and the Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of the outstanding principal amount of the
Notes of all classes have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture. All principal payments
on the Class A-1 Notes shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class A-1 Note due and payable on each Payment
Date, together with the installment of principal, if any, to the extent not in
full payment of 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) on the Note Register as of the close of business on each
Record Date, except that with respect to Class A-1 Notes registered on the
Record Date in the name of the nominee of the 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. Any such payments in
the form of checks shall be mailed to the Person entitled thereto at the address
of such Person as it appears on the Note Register as of the applicable Record
Date without requiring that this Class A-1 Note be submitted for notation of
payment. 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 Payment Date
shall be binding 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 hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class A-1 Note on a Payment Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date preceding
such Payment Date by notice mailed or transmitted by facsimile prior to such
Payment Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Class A-1 Note at the Indenture Trustee's
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at the
Class A-1 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed, in whole or in
part, in the manner and to the extent described in the Indenture and the Sale
and Servicing Agreement.
As provided in the Indenture, and subject to certain limitations set forth
therein, the transfer of this Class A-1 Note may be registered on the Note
Register 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
A-1-4
62
Indenture Trustee duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Note Registrar, and
thereupon one or more new Class A-1 Notes of authorized denominations and in the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Class A-1 Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in its
individual capacity, (ii) any owner of a Certificate or any other beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a Certificate or any other beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, except as any such Person may have expressly agreed and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller, or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Class A-1 Note is issued
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Class A-1
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Class A-1 Note (as of
the day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Class A-1 Note be overdue, and none of the Issuer, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all Notes, voting as a group. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this 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
A-1-5
63
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Class A-1 Note. The Indenture also permits
the Indenture Trustee to amend or waive certain terms and conditions set forth
in the Indenture without the consent of Holders of the Notes issued thereunder.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Class A-1 Note and the Indenture shall be governed by, and construed
in accordance with the laws of the State of New York, and the obligations,
rights and remedies of the parties hereunder and thereunder shall be determined
in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Citibank, N.A., in its individual
capacity, Chase Manhattan Bank Delaware, in its individual capacity, any owner
of a Certificate or any other beneficial interest in the Issuer, or 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 or of interest on this Class A-1
Note or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Indenture. The Holder of this
Note, by his acceptance hereof, agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the Issuer
for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Class A-1 Note.
A-1-6
64
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
--------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
--------------------------------------------------------------------------------
(NAME AND ADDRESS OF ASSIGNEE)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________ , attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: --------------------------------------------- -------------------------------------------------- */
SIGNATURE GUARANTEED
-------------------------------------------------- */
---------------
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
A-1-7
65
EXHIBIT A-2
FORM OF CLASS A-2 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. R-[ ] CUSIP NO. [ ]
DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A
[ ]% CLASS A-2 ASSET BACKED NOTES
Daimler-Benz Vehicle Owner Trust 1998-A, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of [ ] MILLION DOLLARS payable on each
Payment Date in the aggregate amount, if any, payable from the Note Distribution
Account in respect of principal on the Class A-2 Notes pursuant to Section 2.8
of the Indenture dated as of November 1, 1998 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Indenture"), between
the Issuer and Citibank, N.A., a national banking association, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Class
A-2 Note shall be due and payable on the earlier of the December 2001 Payment
Date (the "Class A-2 Final Payment Date") and the Redemption Date, if any,
pursuant to Section 10.1 of the Indenture. Capitalized terms used but not
defined herein are defined in Article I of the Indenture, which also contains
rules as to construction that shall be applicable herein.
The Issuer shall pay interest on this Class A-2 Note at the rate per annum
shown above on each Payment Date until the principal of this Class A-2 Note is
paid or made available for payment, on the principal amount of this Class A-2
Note outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to certain
limitations contained in Section 3.1 of the Indenture. Interest on this Class
A-2 Note will accrue for each Payment Date from and including the twentieth
(20th) day of the calendar month preceding each Payment Date (or, in the case of
the initial Payment Date or if no interest has been paid, from the Closing Date)
to but excluding the twentieth (20th) day of the following calendar month.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Class A-2 Note shall be paid in
the manner specified 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 be applied first to
A-2-1
66
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.
Reference is made to the further provisions of this Class A-2 Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class A-2 Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Class A-2
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]
A-2-2
67
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date:[ ], 1998
DAIMLER-BENZ VEHICLE
OWNER TRUST 1998-A,
By: CHASE MANHATTAN BANK
DELAWARE, not in its individual
capacity but solely as Owner Trustee
under the Trust Agreement
By:
--------------------------------------
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: [ ], 1998
CITIBANK, N.A.,
not in its individual capacity,
but solely as Indenture Trustee
By:
--------------------------------------
Authorized Officer
A-2-3
68
This Class A-2 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its [ ]% Class A-2 Asset Backed Notes, which,
together with the [ ]% Class A-1 Asset Backed Notes, the [ ]%
Class A-3 Asset Backed Notes and the [ ]% Class A-4 Asset Backed Notes
(collectively, the "Notes"), are issued under the Indenture, to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of the
Indenture.
The Class A-2 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture.
Principal of the Class A-2 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth (20th)
day of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing December 21, 1998.
As described above, the entire unpaid principal amount of this Class A-2
Note shall be due and payable on the earlier of the Class A-2 Final Payment Date
and the Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of the outstanding principal amount of the
Notes of all classes have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture. All principal payments
on the Class A-2 Notes shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class A-2 Note due and payable on each Payment
Date, together with the installment of principal, if any, to the extent not in
full payment of 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) on the Note Register as of the close of business on each
Record Date, except that with respect to Class A-2 Notes registered on the
Record Date in the name of the nominee of the 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. Any such payments in
the form of checks shall be mailed to the Person entitled thereto at the address
of such Person as it appears on the Note Register as of the applicable Record
Date without requiring that this Class A-2 Note be submitted for notation of
payment. 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 Payment Date
shall be binding 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 hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class A-2 Note on a Payment Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date preceding
such Payment Date by notice mailed or transmitted by facsimile prior to such
Payment Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Class A-2 Note at the Indenture Trustee's
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at the
Class A-2 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed, in whole or in
part, in the manner and to the extent described in the Indenture and the Sale
and Servicing Agreement.
As provided in the Indenture, and subject to certain limitations set forth
therein, the transfer of this Class A-2 Note may be registered on the Note
Register 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,
A-2-4
69
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class A-2 Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-2 Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in its
individual capacity, (ii) any owner of a Certificate or any other beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a Certificate or any other beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, except as any such Person may have expressly agreed and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller, or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Class A-2 Note is issued
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Class A-2
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Class A-2 Note (as of
the day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Class A-2 Note be overdue, and none of the Issuer, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all Notes, voting as a group. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Class A-2
Note (or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future
A-2-5
70
Holders of this Class A-2 Note and of any Class A-2 Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Class A-2 Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Class A-2 Note and the Indenture shall be governed by, and construed
in accordance with the laws of the State of New York, and the obligations,
rights and remedies of the parties hereunder and thereunder shall be determined
in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Citibank, N.A., in its individual
capacity, Chase Manhattan Bank Delaware, in its individual capacity, any owner
of a Certificate or any other beneficial interest in the Issuer, or 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 or of interest on this Class A-2
Note or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Indenture. The Holder of this
Note, by his acceptance hereof, agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the Issuer
for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Class A-2 Note.
A-2-6
71
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
--------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
--------------------------------------------------------------------------------
(NAME AND ADDRESS OF ASSIGNEE)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________ , attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: --------------------------------------------- -------------------------------------------------- */
SIGNATURE GUARANTEED
-------------------------------------------------- */
---------------
*/ NOTICE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
A-2-7
72
EXHIBIT A-3
FORM OF CLASS A-3 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. R-[ ] CUSIP NO. [ ]
DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A
[ ]% CLASS A-3 ASSET BACKED NOTES
Daimler-Benz Vehicle Owner Trust 1998-A, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of [ ] MILLION DOLLARS payable on each
Payment Date in the aggregate amount, if any, payable from the Note Distribution
Account in respect of principal on the Class A-3 Notes pursuant to Section 2.8
of the Indenture dated as of November 1, 1998 (as amended, supplemented or
otherwise modified and in effect from time to time, the "Indenture"), between
the Issuer and Citibank, N.A., a national banking association, as Indenture
Trustee (in such capacity the "Indenture Trustee"); provided, however, that if
not paid prior to such date, the entire unpaid principal amount of this Class
A-3 Note shall be due and payable on the earlier of the January 2003 Payment
Date (the "Class A-3 Final Payment Date") and the Redemption Date, if any,
pursuant to Section 10.1 of the Indenture. Capitalized terms used but not
defined herein are defined in Article I of the Indenture, which also contains
rules as to construction that shall be applicable herein.
The Issuer shall pay interest on this Class A-3 Note at the rate per annum
shown above on each Payment Date until the principal of this Class A-3 Note is
paid or made available for payment, on the principal amount of this Class A-3
Note outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to certain
limitations contained in Section 3.1 of the Indenture. Interest on this Class
A-3 Note will accrue for each Payment Date from and including the twentieth
(20th) day of the calendar month preceding each Payment Date (or, in the case of
the initial Payment Date or if no interest has been paid, from the Closing Date)
to but excluding the twentieth (20th) day of the following calendar month.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Class A-3 Note shall be paid in
the manner specified 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
A-3-1
73
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.
Reference is made to the further provisions of this Class A-3 Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class A-3 Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Class A-3
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]
A-3-2
74
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: [ ], 1998
By: CHASE MANHATTAN BANK
DELAWARE, not in its individual
capacity but solely as Owner Trustee
under the Trust Agreement
By:
------------------------------------
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: [ ], 1998
CITIBANK, N.A.,
not in its individual capacity,
but solely as Indenture Trustee
By:
------------------------------------
Authorized Officer
A-3-3
75
This Class A-3 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its [ ]% Class A-3 Asset Backed Notes, which,
together with the [ ]% Class A-1 Asset-Backed Notes, the [ ]%
Class A-2 Asset-Backed Notes and the [ ]% Class A-4 Asset-Backed Notes
(collectively, the "Notes"), are issued under the Indenture, to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of the
Indenture.
The Class A-3 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture.
Principal of the Class A-3 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth (20th)
day of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing December 21, 1998.
As described above, the entire unpaid principal amount of this Class A-3
Note shall be due and payable on the earlier of the Class A-3 Final Payment Date
and the Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of the outstanding principal amount of the
Notes of all classes have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture. All principal payments
on the Class A-3 Notes shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class A-3 Note due and payable on each Payment
Date, together with the installment of principal, if any, to the extent not in
full payment of 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) on the Note Register as of the close of business on each
Record Date, except that with respect to Class A-3 Notes registered on the
Record Date in the name of the nominee of the 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. Any such payments in
the form of checks shall be mailed to the Person entitled thereto at the address
of such Person as it appears on the Note Register as of the applicable Record
Date without requiring that this Class A-3 Note be submitted for notation of
payment. 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 Payment Date
shall be binding 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 hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class A-3 Note on a Payment Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date preceding
such Payment Date by notice mailed or transmitted by facsimile prior to such
Payment Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Class A-3 Note at the Indenture Trustee's
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at the
Class A-3 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed, in whole or in
part, in the manner and to the extent described in the Indenture and the Sale
and Servicing Agreement.
As provided in the Indenture, and subject to certain limitations set forth
therein, the transfer of this Class A-3 Note may be registered on the Note
Register 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,
A-3-4
76
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class A-3 Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-3 Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in its
individual capacity, (ii) any owner of a Certificate or any other beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a Certificate or any other beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, except as any such Person may have expressly agreed and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller, or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Class A-3 Note is issued
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Class A-3
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Class A-3 Note (as of
the day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Class A-3 Note be overdue, and none of the Issuer, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all Notes, voting as a group. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Class A-3
Note (or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future
A-3-5
77
Holders of this Class A-3 Note and of any Class A-3 Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Class A-3 Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Class A-3 Note and the Indenture shall be governed by, and construed
in accordance with the laws of the State of New York, and the obligations,
rights and remedies of the parties hereunder and thereunder shall be determined
in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Citibank, N.A., in its individual
capacity, Chase Manhattan Bank Delaware, in its individual capacity, any owner
of a Certificate or any other beneficial interest in the Issuer, or 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 or of interest on this Class A-3
Note or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Indenture. The Holder of this
Note, by his acceptance hereof, agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the Issuer
for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Class A-3 Note.
A-3-6
78
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
--------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
--------------------------------------------------------------------------------
(NAME AND ADDRESS OF ASSIGNEE)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints ______________ , attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: --------------------------------------------- -------------------------------------------------- */
SIGNATURE GUARANTEED
-------------------------------------------------- */
---------------
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
A-3-7
79
EXHIBIT A-4
FORM OF CLASS A-4 NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
REGISTERED $[ ]
No. R-[ ] CUSIP NO. [ ]
DAIMLER-BENZ VEHICLE OWNER TRUST 1998-A
[ ]% CLASS A-4 ASSET BACKED NOTES
Daimler-Benz Vehicle Owner Trust 1998-A, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of [ ] MILLION DOLLARS
payable on each Payment Date in the aggregate amount, if any, payable from the
Note Distribution Account in respect of principal on the Class A-4 Notes
pursuant to Section 2.8 of the Indenture dated as of November 1, 1998 (as
amended, supplemented or otherwise modified and in effect from time to time, the
"Indenture"), between the Issuer and Citibank, N.A., a national banking
association, as Indenture Trustee (in such capacity the "Indenture Trustee");
provided, however, that if not paid prior to such date, the entire unpaid
principal amount of this Class A-4 Note shall be due and payable on the earlier
of the December 2003 Payment Date (the "Class A-4 Final Payment Date") and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture. Capitalized
terms used but not defined herein are defined in Article I of the Indenture,
which also contains rules as to construction that shall be applicable herein.
The Issuer shall pay interest on this Class A-4 Note at the rate per annum
shown above on each Payment Date until the principal of this Class A-4 Note is
paid or made available for payment, on the principal amount of this Class A-4
Note outstanding on the preceding Payment Date (after giving effect to all
payments of principal made on the preceding Payment Date), subject to certain
limitations contained in Section 3.1 of the Indenture. Interest on this Class
A-4 Note will accrue for each Payment Date from and including the twentieth
(20th) day of the calendar month preceding each Payment Date (or, in the case of
the initial Payment Date or if no interest has been paid, from the Closing Date)
to but excluding the twentieth (20th) day of the following calendar month.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Such principal of and interest on this Class A-4 Note shall be paid in
the manner specified 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
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80
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.
Reference is made to the further provisions of this Class A-4 Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class A-4 Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Class A-4
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date: [ ], 1998
DAIMLER-BENZ VEHICLE
OWNER TRUST 1998-A,
By: CHASE MANHATTAN BANK
DELAWARE, not in its individual
capacity but solely as Owner
Trustee under the Trust Agreement
By:
------------------------------------
Authorized Officer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date: [ ], 1998
CITIBANK, N.A.,
not in its individual capacity,
but solely as Indenture Trustee
By:
------------------------------------
Authorized Officer
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This Class A-4 Note is one of a duly authorized issue of Notes of the
Issuer, designated as its [ ]% Class A-4 Asset Backed Notes, which,
together with the [ ]% Class A-1 Asset Backed Notes, the [ ]%
Class A-2 Asset Backed Notes and the [ ]% Class A-3 Asset Backed Notes
(collectively, the "Notes"), are issued under the Indenture, to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Holders of the Notes. The Notes are subject to all terms of the
Indenture.
The Class A-4 Notes are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture.
Principal of the Class A-4 Notes will be payable on each Payment Date in an
amount described on the face hereof. "Payment Date" means the twentieth (20th)
day of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing December 21, 1998.
As described above, the entire unpaid principal amount of this Class A-4
Note shall be due and payable on the earlier of the Class A-4 Final Payment Date
and the Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders of the Notes
representing not less than a majority of the outstanding principal amount of the
Notes of all classes have declared the Notes to be immediately due and payable
in the manner provided in Section 5.2 of the Indenture. All principal payments
on the Class A-4 Notes shall be made pro rata to the Holders entitled thereto.
Payments of interest on this Class A-4 Note due and payable on each Payment
Date, together with the installment of principal, if any, to the extent not in
full payment of 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) on the Note Register as of the close of business on each
Record Date, except that with respect to Class A-4 Notes registered on the
Record Date in the name of the nominee of the 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. Any such payments in
the form of checks shall be mailed to the Person entitled thereto at the address
of such Person as it appears on the Note Register as of the applicable Record
Date without requiring that this Class A-4 Note be submitted for notation of
payment. 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 Payment Date
shall be binding 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 hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Class A-4 Note on a Payment Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date preceding
such Payment Date by notice mailed or transmitted by facsimile prior to such
Payment Date, and the amount then due and payable shall be payable only upon
presentation and surrender of this Class A-4 Note at the Indenture Trustee's
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in New York, New York.
The Issuer shall pay interest on overdue installments of interest at the
Class A-4 Rate to the extent lawful.
As provided in the Indenture, the Notes may be redeemed, in whole or in
part, in the manner and to the extent described in the Indenture and the Sale
and Servicing Agreement.
As provided in the Indenture, and subject to certain limitations set forth
therein, the transfer of this Class A-4 Note may be registered on the Note
Register 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,
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83
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Note Registrar, and thereupon one or more new Class A-4 Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Class A-4 Note, but the transferor
may be required to pay a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any such registration of transfer
or exchange.
Each Noteholder or Note Owner, by its acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee, each in its
individual capacity, (ii) any owner of a Certificate or any other beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, any holder of a Certificate or any other beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee, each in its
individual capacity, except as any such Person may have expressly agreed and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a
Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time institute against the Seller, or the Issuer, or join in any institution
against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Class A-4 Note is issued
with the intention that, for federal, state and local income, single business
and franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by its acceptance of a Note (and
each Note Owner by its acceptance of a beneficial interest in a Note), agrees to
treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Class A-4
Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the
Indenture Trustee may treat the Person in whose name this Class A-4 Note (as of
the day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Class A-4 Note be overdue, and none of the Issuer, the Indenture Trustee or
any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Holders of Notes representing a
majority of the Outstanding Amount of all Notes, voting as a group. The
Indenture also contains provisions permitting the Holders of Notes representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Holders of all the Notes, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Class A-4
Note (or any one or more Predecessor Notes) shall be conclusive and binding upon
such Holder and upon all future
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84
Holders of this Class A-4 Note and of any Class A-4 Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Class A-4 Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The term "Issuer", as used in this Note, includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as provided
in the Indenture, subject to certain limitations therein set forth.
This Class A-4 Note and the Indenture shall be governed by, and construed
in accordance with the laws of the State of New York, and the obligations,
rights and remedies of the parties hereunder and thereunder shall be determined
in accordance with such laws.
No reference herein to the Indenture, and no provision of this Note or of
the Indenture, shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of Citibank, N.A., in its individual
capacity, Chase Manhattan Bank Delaware, in its individual capacity, any owner
of a Certificate or any other beneficial interest in the Issuer, or 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 or of interest on this Class A-4
Note or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Indenture. The Holder of this
Note, by his acceptance hereof, agrees that, except as expressly provided in the
Basic Documents, in the case of an Event of Default under the Indenture, the
Holder shall have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained herein shall be
taken to prevent recourse to, and enforcement against, the assets of the Issuer
for any and all liabilities, obligations and undertakings contained in the
Indenture or in this Class A-4 Note.
A-4-6
85
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
--------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
--------------------------------------------------------------------------------
(NAME AND ADDRESS OF ASSIGNEE)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints , attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: --------------------------------------------- ---------------------------------------------------*/
SIGNATURE GUARANTEED
---------------------------------------------------*/
---------------
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar.
A-4-7
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EXHIBIT B
FORM OF OPINION OF COUNSEL
PURSUANT TO SECTION 3.6(A)
[ ], 1998
To the Addressees Indicated on
Schedule A hereto
Re: Daimler-Benz Vehicle Owner Trust 1998-A
Ladies and Gentlemen:
We have acted as special counsel to Mercedes-Benz Credit Corporation, a
Delaware corporation ("MBCC"), and Daimler-Benz Vehicle Receivables Corporation,
a Delaware corporation (the "Seller"), in connection with the transactions
contemplated by (i) the Purchase Agreement, dated as of November 1, 1998 (the
"Purchase Agreement"), between MBCC and the Seller, (ii) the Sale and Servicing
Agreement, dated as of November 1, 1998 (the "Sale and Servicing Agreement"), by
and among the Seller, as seller, MBCC, as servicer, and Daimler-Benz Vehicle
Owner Trust 1998-A, a Delaware business trust (the "Trust"), as issuer, (iii)
the Indenture, dated as of November 1, 1998 (the "Indenture"), between the Trust
and Citibank, N.A., as indenture trustee for the benefit of the Holders of the
Notes (the "Indenture Trustee"), and (iv) the Trust Agreement, dated as of
November 1, 1998 (the "Trust Agreement"), between the Seller and Chase Manhattan
Bank Delaware, as owner trustee on behalf of the Trust (the "Owner Trustee").
Capitalized terms not otherwise defined herein have the meanings assigned to
such terms in the Sale and Servicing Agreement.
Pursuant to the Purchase Agreement and the Assignment dated as of November
1, 1998 related thereto (the "Assignment"), MBCC proposes to sell to the Seller,
and the Seller proposes to purchase from MBCC, among other things, certain motor
vehicle retail installment sale contracts (collectively, the "Receivables")
secured by new and used automobiles and light- and medium-duty trucks
(collectively, the "Financed Vehicles"), certain monies due or received
thereunder on or after the Cutoff Date, MBCC's security interests in the
Financed Vehicles, MBCC's rights under certain insurance policies, certain
rights under dealer agreements relating to the Receivables and certain other
property related to the Receivables and all the proceeds thereof.
Pursuant to the Sale and Servicing Agreement, the Seller proposes to sell
to the Trust all right, title and interest of the Seller in, to and under the
Receivables, all monies due or received thereunder on and after the Cutoff Date,
certain other property related to the Receivables and all proceeds thereof. The
Trust will issue (i) $360,000,000 aggregate principal amount of [ ]% Class
A-1 Asset Backed Notes, $508,000,000 aggregate principal amount of [ ]%
Class A-2 Asset Backed Notes, $440,000,000 aggregate principal amount of
[ ]% Class A-3 Asset Backed Notes and $241,800,000 aggregate principal
amount of [ ]% Class A-4 Asset Backed Notes (collectively, the "Notes")
pursuant to the Indenture for sale to the several underwriters named in the
Underwriting Agreement, dated as of [ ], 1998, between the Seller
and Chase Securities Inc. and Xxxxxxx Xxxxx Xxxxxx Inc., as representatives of
the several underwriters; and (ii) $81,654,551.40 aggregate principal amount of
[ ]% Class B Asset Backed Certificates (collectively, the "Certificates")
pursuant to the Trust Agreement for issuance to the Seller.
In our examination we have assumed the genuineness of all signatures
(including endorsements), the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such copies. As to any facts
material to
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To the Addressees Indicated on
Schedule A hereto
[ ], 1998
Page 2
this opinion which we did not independently establish or verify, we have relied
upon statements and representations of MBCC and the Seller and their officers
and other representatives and of public officials.
In rendering the opinions set forth herein, we have examined and relied on
originals or copies, certified or otherwise identified to our satisfaction, of
the following:
(a) the Purchase Agreement, the Sale and Servicing Agreement, the
Indenture, the Trust Agreement and the Assignment;
(b) a Certificate of the Seller, dated the date hereof, a copy of
which is attached as Exhibit A hereto (the "Seller Certificate");
(c) an unfiled, but signed copy of a financing statement naming the
Seller as debtor and the Trust as secured party, which we understand will
be filed within ten (10) days of the transfer of the security interest in
the office of the Secretary of State of the State of [New York] (such
filing office, the "Filing Office" and such financing statement, the
"Financing Statement");
(d) the report of Lexis Document Services dated
[ ], 1998, as to financing statements naming the Seller
as debtor and on file in the office of the Secretary of State of the State
of [New York] as of an effective date of [ ], 1998 (the
"Search Report");
(e) forms of motor vehicle retail installment sale contracts (the
"Form Contracts") attached as Annex A to the Seller Certificate; and
(f) such other agreements, certificates or documents as we have deemed
necessary or appropriate as a basis for the opinion set forth below.
Unless otherwise indicated, references to the "UCC" shall mean: (i) with
respect to the validity of the security interests held by the Owner Trustee and
the Indenture Trustee, the Uniform Commercial Code as in effect on the date
hereof in the State of [New York], (ii) with respect to the perfection and the
effect of perfection or non-perfection of the security interest of the Owner
Trustee in the Receivables, the Uniform Commercial Code as in effect on the date
hereof in the State of [New York], and (iii) with respect to our opinion in
paragraph 1 below, the Uniform Commercial Code as in effect on the date hereof
in the States of New York and Delaware.
Members of this Firm are admitted to practice in the States of Delaware and
New York. We express no opinion as to the laws of any jurisdiction other than
(i) the laws of the State of New York and (ii) with respect to the security
interest opinions set forth in paragraphs 1, 2 and 3 herein, the UCC. References
to the "Applicable States" shall mean Delaware and/or New York, as applicable.
Based upon the foregoing and subject to the limitations, qualifications,
exceptions and assumptions set forth herein, we are of the opinion that:
(1) Each Receivable is a motor vehicle retail installment sale
contract that constitutes "chattel paper" as defined in Section 9-105 of
the UCC.
(2) The provisions of the Sale and Servicing Agreement are effective
to create, in favor of the Owner Trustee, a valid security interest (as
such term is defined in Section 1-201 of the UCC) in the Seller's rights in
the Receivables and proceeds thereof, which security interest if
characterized as a transfer for security will secure payment of the Notes.
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To the Addressees Indicated on
Schedule A hereto
[ ], 1998
Page 3
(3) The Financing Statement is in appropriate form for filing in the
Filing Office under the UCC. Upon the filing of the Financing Statement in
the Filing Office, the security interest in favor of the Owner Trustee in
the Receivables and proceeds thereof will be perfected, and no other
security interest of any other creditor of the Seller's will be equal or
prior to the security interest of the Owner Trustee in the Receivables and
proceeds thereof.
(4) The provisions of the Indenture are effective to create in favor
of the Indenture Trustee, a valid security interest in the Trust's rights
in the Receivables and proceeds thereof to secure payment of the Notes.
Our opinions in paragraphs 1-4 above are subject to the following
qualifications:
(a) we have assumed that the Receivables exist and that the Seller has
sufficient rights in the Receivables for the security interest of the Owner
Trustee to attach, and that the Owner Trustee has sufficient rights in the
Receivables for the security interest of the Indenture Trustee to attach,
and we express no opinion as to the nature or extent of the Seller's or the
Owner Trustee's rights in, or title to, any Receivables;
(b) our security interest opinions are limited to Article 9 of the
UCC, and therefore such opinions do not address (i) laws of jurisdictions
other than Applicable States, and of Applicable States except for Article 9
of the UCC, (ii) collateral of a type not subject to Article 9 of the UCC,
and (iii) under Section 9-103 of the UCC, what law governs perfection of
the security interests granted in the collateral covered by this opinion;
(c) we call to your attention that under the UCC, events occurring
subsequent to the date hereof may affect any security interest subject to
the UCC including, but not limited to, factors of the type identified in
Section 9-306 with respect to proceeds; Section 9-402 with respect to
changes in name, structure and corporate identity of the debtor; Section
9-103 with respect to changes in the location of the collateral and the
location of the debtor; Section 9-316 with respect to subordination
agreements; Section 9-403 with respect to continuation statements; and
Sections 9-307, 9-308 and 9-309 with respect to subsequent purchasers of
the collateral. In addition, actions taken by a secured party (e.g.,
releasing or assigning the security interest, delivering possession of the
collateral to the debtor or another person and voluntarily subordinating a
security interest) may affect the validity, perfection or priority of a
security interest;
(d) we have assumed that each Receivable is substantially in the form
of a Form Contract, and we have assumed that no Receivable is or will be
credited to a securities account;
(e) we have assumed that there are no agreements between the Seller or
the Owner Trustee and any account debtor prohibiting, restricting or
conditioning the assignment of any portion of the Receivables;
(f) we express no opinion with respect to the perfection or priority
of the security interest of the Indenture Trustee;
(g) we call to your attention that the security interest of the Owner
Trustee and the Indenture Trustee may be subject to the rights of account
debtors, claims and defenses of account debtors and the terms of agreements
with account debtors;
(h) we express no opinion regarding the security interest of the Owner
Trustee or the Indenture Trustee in any Receivables consisting of claims
against any government or governmental agency (including, without
limitation, the United States of America or any state thereof or any agency
or department of the United States of America or any state thereof);
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To the Addressees Indicated on
Schedule A hereto
[ ], 1998
Page 4
(i) we express no opinion with respect to the Owner Trustee's or
Indenture Trustee's rights in and to any property which secures any
Receivable;
(j) we have assumed that the Seller's chief executive office is and
will be located at the address set forth in the Seller Certificate;
(k) we express no opinion with respect to the priority of the interest
of the Owner Trustee in the Receivables against any of the following: (i)
pursuant to Section 9-301(1) of the UCC, a lien creditor or bulk purchaser
who attached or levied prior to the perfection of the security interest of
the Owner Trustee; (ii) pursuant to Section 9-301(4) of the UCC, a lien
creditor to the extent that provision limits the priority afforded future
advances; (iii) pursuant to Section 9-312(7) of the UCC, another secured
creditor to the extent that provision limits the priority afforded future
advances; (iv) pursuant to Sections 9-103(1)(d) or (3)(e) and Section
9-312(1) of the UCC, a security interest perfected under the laws of
another jurisdiction to the extent the Seller was located in such
jurisdiction within four months prior to the date of the perfection of the
security interest of the Owner Trustee; (v) pursuant to Section 9-312(3)
and (4) of the UCC, a "purchase money security interest" as such term is
defined in Section 9-107 of the UCC; (vi) pursuant to Section 9-312(6) of
the UCC, another secured party with a perfected security interest in other
property of the Seller to the extent the Receivables are proceeds of such
other creditor's property; (vii) pursuant to Sections 9-104, 9-113, 9-208
and 9-302(1) of the UCC, another creditor not required to file a financing
statement to perfect its interest; and (viii) pursuant to Section 9-401(2)
and (3) of the UCC, the security interest of a creditor who filed a
financing statement based on a prior or incorrect location of the Seller or
the Receivables or use of the Receivables to the extent such other
financing statement would be effective under Section 9-401(2) or (3) of the
UCC;
(l) we have assumed that no financing statement naming the Seller as
debtor was filed in the Filing Office between the effective date of the
Search Report and the date of the filing of the Financing Statement in such
Filing Office;
(m) as used in paragraph 2, the term "security interest" is used as
defined in Section 1-201 of the UCC, which definition includes both (i) an
interest in chattel paper to secure payment and (ii) a sale of chattel
paper. In addition, we express no opinion whether or to what extent the
transfer pursuant to the Sale and Servicing Agreement will be characterized
as a sale or a transfer for security;
(n) we have assumed that (i) the Sale and Servicing Agreement
constitutes the legal, valid and binding obligation of the Trust,
enforceable against the Trust in accordance with its terms and (ii) the
Indenture constitutes the legal, valid and binding obligation of the
Indenture Trustee and the Trust, enforceable against the Indenture Trustee
and the Trust, respectively, in accordance with its terms; and
(o) we call to your attention that in the case of the issuance of
distributions on, or proceeds of, the Receivables, the security interest of
the Owner Trustee therein will be perfected only if possession thereof is
obtained or other appropriate action is taken in accordance with the
provisions of the UCC or other applicable law and, in the case of certain
types of distributions or proceeds, other parties such as holders in due
course, protected purchasers and buyers in the ordinary course of business
may obtain superior priority.
B-4
90
To the Addressees Indicated on
Schedule A hereto
[ ], 1998
Page 5
We call to your attention that, with respect to paragraphs (a), (e),
(k)(iv) and (l) of our qualifications set forth above, we have relied upon
representations and warranties of the Seller as to the assumptions therein.
This opinion is being furnished only to you and is solely for your benefit
and is not to be used, circulated, quoted, relied upon or otherwise referred to
for any purpose without prior written consent in each instance.
Very truly yours,
B-5
91
SCHEDULE A
Mercedes-Benz Credit Corporation
000 Xxxxxxx 0, Xxxxx 000
Xxxxxxx, XX 00000-0000
Daimler-Benz Vehicle Receivables Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Chase Manhattan Bank Delaware,
as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Citibank, N.A.,
as Indenture Trustee
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Chase Securities Inc., as
Representative of the several
Underwriters
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Standard & Poor's,
a Division of The XxXxxx-Xxxx Companies
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
92
EXHIBIT A
DAIMLER-BENZ VEHICLE RECEIVABLES CORPORATION
OFFICER'S CERTIFICATE
The undersigned, a duly authorized officer of DAIMLER-BENZ VEHICLE
RECEIVABLES CORP. (the "Company"), does hereby certify as follows:
(1) No financing statements or other filings have been filed naming
the Company as debtor or seller in any State of the United States of
America to perfect a sale, transfer or assignment of or lien, encumbrance,
security interest or other interest in, or which otherwise pertains to, the
Receivables.
(2) At all times since the incorporation of the Company, the Company
has had one place of business and it is and has been located in
[Wilmington, Delaware].
(3) At all times since the incorporation of the Company and on the
date hereof, the Company has had a mailing address of [1201 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxx 00000].
(4) Attached hereto as Annex A are forms of motor vehicle retail
installment sales contracts used to create the Receivables (the "Form
Contracts"), and each Receivable is substantially in the form of a Form
Contract.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to such terms in the Sale and Servicing Agreement, dated as of
November 1, 1998, by and among the Company, Mercedes-Benz Credit Corporation, as
Servicer, and Daimler-Benz Vehicle Owner Trust 1998-A, as Issuer, and accepted
and agreed to by Citibank, N.A., as Indenture Trustee.
IN WITNESS WHEREOF, I have set my hand this day of , 1998.
DAIMLER-BENZ VEHICLE
RECEIVABLES CORP.
By:
------------------------------------
Name:
Title:
93
ANNEX A
[FORMS OF RETAIL INSTALLMENT SALES CONTRACT]
