Exhibit 4.1



 





Exhibit 4.1




 

 






DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]




Class A-1 [       ]% Auto Loan Asset Backed Notes

Class A-2 [       ]% Auto Loan Asset Backed Notes

Class A-3 [       ]% Auto Loan Asset Backed Notes

Class A-4 [       ]% Auto Loan Asset Backed Notes




 






INDENTURE




Dated as of [       ], 20[   ]



 
 




[                 ], as the Indenture Trustee




 

 








 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	2	 
	SECTION 1.1. Definitions
	 	 	2	 
	SECTION 1.2. Incorporation by Reference of Trust Indenture Act
	 	 	2	 
	SECTION 1.3. Other Interpretive Provisions
	 	 	2	 
	ARTICLE II. THE NOTES
	 	 	3	 
	SECTION 2.1. Form
	 	 	3	 
	SECTION 2.2. Execution, Authentication and Delivery
	 	 	3	 
	SECTION 2.3. Temporary Notes
	 	 	4	 
	SECTION 2.4. Registration of Transfer and Exchange
	 	 	4	 
	SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes
	 	 	5	 
	SECTION 2.6. Persons Deemed Owners
	 	 	6	 
	SECTION 2.7. Payment of Principal and Interest; Defaulted Interest
	 	 	6	 
	SECTION 2.8. Cancellation
	 	 	7	 
	SECTION 2.9. Release of Collateral
	 	 	7	 
	SECTION 2.10. Book-Entry Notes
	 	 	8	 
	SECTION 2.11. Notices to Clearing Agency
	 	 	8	 
	SECTION 2.12. Definitive Notes
	 	 	9	 
	SECTION 2.13. Authenticating Agents
	 	 	9	 
	SECTION 2.14. Tax Treatment
	 	 	10	 
	ARTICLE III. COVENANTS
	 	 	10	 
	SECTION 3.1. Payment of Principal and Interest
	 	 	10	 
	SECTION 3.2. Maintenance of Office or Agency
	 	 	10	 
	SECTION 3.3. Money for Payments To Be Held in Trust
	 	 	10	 
	SECTION 3.4. Existence
	 	 	12	 
	SECTION 3.5. Protection of Collateral
	 	 	12	 
	SECTION 3.6. Opinions as to Collateral
	 	 	13	 
	SECTION 3.7. Performance of Obligations; Servicing of Contracts
	 	 	13	 
	SECTION 3.8. Negative Covenants
	 	 	14	 
	SECTION 3.9. Annual Compliance Statement
	 	 	15	 
	SECTION
3.10. Issuer May Consolidate, Etc.
	 	 	16	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 3.11. Restrictions on Certain Other Activities
	 	 	17	 
	SECTION 3.12. Restricted Payments
	 	 	18	 
	SECTION 3.13. Notice of Events of Default
	 	 	18	 
	SECTION 3.14. Further Instruments and Acts
	 	 	18	 
	SECTION 3.15. Compliance with Laws
	 	 	18	 
	SECTION 3.16. Removal of Administrator
	 	 	19	 
	SECTION 3.17. Perfection Representations, Warranties and Covenants
	 	 	19	 
	SECTION 3.18. Investment Company Act Representation
	 	 	19	 
	ARTICLE IV. SATISFACTION AND DISCHARGE
	 	 	19	 
	SECTION 4.1. Satisfaction and Discharge of Indenture
	 	 	19	 
	SECTION 4.2. Application of Trust Money
	 	 	20	 
	SECTION 4.3. Repayment of Monies Held by Paying Agent
	 	 	20	 
	ARTICLE V. REMEDIES
	 	 	20	 
	SECTION 5.1. Events of Default
	 	 	20	 
	SECTION 5.2. Acceleration of Maturity; Waiver of Event of Default
	 	 	21	 
	SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
the Indenture Trustee
	 	 	22	 
	SECTION 5.4. Remedies; Priorities
	 	 	25	 
	SECTION 5.5. Optional Preservation of the Collateral
	 	 	27	 
	SECTION 5.6. Limitation of Suits
	 	 	27	 
	SECTION 5.7. Unconditional Rights of Noteholders To Receive Principal and Interest
	 	 	28	 
	SECTION 5.8. Restoration of Rights and Remedies
	 	 	28	 
	SECTION 5.9. Rights and Remedies Cumulative
	 	 	28	 
	SECTION 5.10. Delay or Omission Not a Waiver
	 	 	29	 
	SECTION 5.11. Control by Noteholders
	 	 	29	 
	SECTION 5.12. Waiver of Past Defaults
	 	 	29	 
	SECTION 5.13. Undertaking for Costs
	 	 	30	 
	SECTION 5.14. Waiver of Stay or Extension Laws
	 	 	30	 
	SECTION 5.15. Action on Notes
	 	 	30	 
	SECTION 5.16. Performance and Enforcement of Certain Obligations
	 	 	31	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 5.17. Sale of Collateral
	 	 	31	 
	ARTICLE VI. THE INDENTURE TRUSTEE
	 	 	32	 
	SECTION 6.1. Duties of the Indenture Trustee
	 	 	32	 
	SECTION 6.2. Rights of the Indenture Trustee
	 	 	33	 
	SECTION 6.3. Individual Rights of the Indenture Trustee
	 	 	35	 
	SECTION 6.4. Indenture Trustee’s Disclaimer
	 	 	35	 
	SECTION 6.5. Notice of Event of Default
	 	 	35	 
	SECTION 6.6. Reports by Indenture Trustee to Holders
	 	 	35	 
	SECTION 6.7. Compensation
	 	 	35	 
	SECTION 6.8. Removal, Resignation and Replacement of the Indenture Trustee
	 	 	36	 
	SECTION 6.9. Successor Indenture Trustee by Merger
	 	 	37	 
	SECTION 6.10. Appointment of Co-Indenture Trustee or Separate Indenture Trustee
	 	 	37	 
	SECTION
6.11. Eligibility
	 	 	38	 
	SECTION
6.12. Preferential Collection of Claims Against the Issuer
	 	 	39	 
	SECTION
6.13. Representations and Warranties of the Indenture Trustee
	 	 	39	 
	ARTICLE VII. NOTEHOLDERS’ LISTS AND REPORTS
	 	 	39	 
	SECTION 7.1. The Issuer to Furnish the Indenture Trustee Names and Addresses of
Noteholders
	 	 	39	 
	SECTION 7.2. Preservation of Information; Communications to Noteholders
	 	 	40	 
	SECTION 7.3. Reports by the Indenture Trustee
	 	 	40	 
	ARTICLE
VIII. ACCOUNTS, DISBURSEMENTS AND RELEASES
	 	 	40	 
	SECTION 8.1. Collection of Money
	 	 	40	 
	SECTION 8.2. Trust Accounts
	 	 	41	 
	SECTION 8.3. General Provisions Regarding Accounts
	 	 	41	 
	SECTION 8.4. Release of Collateral
	 	 	42	 
	SECTION 8.5. Opinion of Counsel
	 	 	43	 
	ARTICLE IX. SUPPLEMENTAL INDENTURES
	 	 	43	 
	SECTION 9.1. Supplemental Indentures Without Consent of Noteholders
	 	 	43	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 9.2. Supplemental Indentures with Consent of Noteholders
	 	 	45	 
	SECTION 9.3. Execution of Supplemental Indentures
	 	 	46	 
	SECTION 9.4. Effect of Supplemental Indenture
	 	 	46	 
	SECTION 9.5. Conformity With Trust Indenture Act
	 	 	47	 
	SECTION 9.6. Reference in Notes to Supplemental Indentures
	 	 	47	 
	ARTICLE X. REDEMPTION OF NOTES
	 	 	47	 
	SECTION 10.1. Redemption
	 	 	47	 
	SECTION 10.2. Form of Redemption Notice
	 	 	47	 
	SECTION 10.3. Notes Payable on Redemption Date
	 	 	48	 
	ARTICLE XI. MISCELLANEOUS
	 	 	48	 
	SECTION
11.1. Compliance Certificates and Opinions, etc.
	 	 	48	 
	SECTION 11.2. Form of Documents Delivered to the Indenture Trustee
	 	 	50	 
	SECTION 11.3. Acts of Noteholders
	 	 	51	 
	SECTION 11.4. Notices
	 	 	51	 
	SECTION 11.5. Notices to Noteholders; Waiver
	 	 	51	 
	SECTION 11.6. Alternate Payment and Notice Provisions
	 	 	52	 
	SECTION 11.7. Conflict with Trust Indenture Act
	 	 	52	 
	SECTION 11.8. Effect of Headings and Table of Contents
	 	 	52	 
	SECTION 11.9. Successors and Assigns
	 	 	52	 
	SECTION 11.10. Separability
	 	 	52	 
	SECTION 11.11. Benefits of Indenture
	 	 	53	 
	SECTION 11.12. Legal Holidays
	 	 	53	 
	SECTION 11.13. GOVERNING LAW
	 	 	53	 
	SECTION 11.14. Counterparts
	 	 	53	 
	SECTION 11.15. Recording of Indenture
	 	 	53	 
	SECTION 11.16. Trust Obligation
	 	 	53	 
	SECTION 11.17. No Petition
	 	 	54	 
	SECTION 11.18. Inspection
	 	 	54	 
	SECTION 11.19. Submission to Jurisdiction; Waiver of Jury Trial
	 	 	54	 
	SECTION 11.20. Subordination of Claims
	 	 	55	 






-iv-









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 11.21. Maximum Interest Payable
	 	 	56	 
	SECTION 11.22. No Legal Title in Holders
	 	 	56	 
	SECTION 11.23. Third Party Beneficiary
	 	 	56	 
	SECTION 11.24. Information Requests
	 	 	56	 






-v-









 





CROSS REFERENCE TABLE1




	 	 	 	 	 
	TIA	 	 	 	Indenture
	Section	 	 	 	Section
	310
	 	(a)(1)	 	6.11
	 
	 	(a)(2)	 	6.11
	 
	 	(a)(3)	 	6.10; 6.11
	 
	 	(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)	 	7.3
	 
	 	(b)(1)	 	7.3
	 
	 	(b)(2)	 	7.3
	 
	 	(c)	 	7.3
	 
	 	(d)	 	7.3
	314
	 	(a)	 	3.9
	 
	 	(b)	 	11.15, 3.6
	 
	 	(c)(1)	 	11.15
	 
	 	(c)(2)	 	11.1
	 
	 	(c)(3)	 	11.1
	 
	 	(d)	 	11.1
	 
	 	(e)	 	11.1
	 
	 	(f)	 	N.A.
	315
	 	(a)	 	6.1(b)
	 
	 	(b)	 	6.5
	 
	 	(c)	 	6.1(a)
	 
	 	(d)	 	6.1(c)
	 
	 	(e)	 	5.13
	316
	 	(a)(1)(A)	 	5.11
	 
	 	(a)(1)(B)	 	5.12
	 
	 	(a)(2)	 	N.A.
	 
	 	(b)	 	5.7
	 
	 	(c)	 	5.6(b)
	317
	 	(a)(1)	 	5.3(b)
	 
	 	(a)(2)	 	5.3(d)








 




			
	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.




 









 










	 	 	 	 	 
	TIA	 	 	 	Indenture
	Section	 	 	 	Section
	 
	 	(b)	 	3.3
	318
	 	(a)	 	11.7






 









 





          This INDENTURE, dated as of [       ] (as amended, modified or supplemented from time to
time, this “Indenture”), is between DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ], a Delaware
statutory trust (the “Issuer”), and [       ], a [       ] organized
under the laws of the United States, solely as trustee and not in its individual capacity (the
“Indenture Trustee”).




          Each party agrees as follows for the benefit of the other party and the equal and ratable
benefit of the Holders of the Issuer’s Class A-1 [       ]% Auto Loan Asset Backed Notes (the
“Class A-1 Notes”), Class A-2 [       ]% Auto Loan Asset Backed Notes (the “Class
A-2 Notes”), Class A-3 [       ]% Auto Loan Asset Backed Notes (the “Class A-3
Notes”) and Class A-4 [       ]% Auto Loan Asset Backed Notes, (the “Class A-4
Notes”; together with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the
“Notes”).




GRANTING CLAUSE




          The Issuer, to secure the payment of principal of and interest on, and any other amounts owing
in respect of, the Notes, equally and ratably without prejudice, priority or distinction except as
set forth herein, to secure the obligations of the Issuer to the Indenture Secured Parties and to
secure compliance with the provisions of this Indenture, hereby Grants in trust to the Indenture
Trustee on the Closing Date and on each Funding Date, as trustee for the benefit of the Indenture
Secured Parties, all of its right, title and interest, whether now owned or hereafter acquired, in
and to (i) the Trust Estate and (ii) all present and future claims, demands, causes and choses in
action in respect of any or all of the Trust Estate and all payments on or under and all proceeds
of every kind and nature whatsoever in respect of any or all of the Trust Estate, including all
proceeds of the conversion, voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments, securities, financial assets and other
property which at any time constitute all or part of or are included in the proceeds of any of the
Trust Estate (collectively, the “Collateral”).




          The Indenture Trustee, on behalf of the Indenture Secured Parties, acknowledges the foregoing
Grant, accepts the trusts under this Indenture and agrees to perform its duties required in this
Indenture in accordance with the provisions of this Indenture.




          The foregoing Grant is made in trust to secure (i) the payment of principal of and interest
on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice,
priority or distinction except as set forth herein, (ii) the payment by the Issuer of all other
sums payable in accordance with the provisions of this Indenture[, including, but not limited to
Reimbursement Obligations[, all amounts due to each Reserve Account Letter of Credit Bank]] and
(iii) compliance with the provisions of this Indenture, all as provided in this Indenture.




          Without limiting the foregoing Grant, any Contract purchased by the Seller or the Servicer
pursuant to Section 2.3 or Section 3.6, respectively, of the Sale and Servicing Agreement shall be
deemed to be automatically released from the lien of this Indenture without

1









 








any action being taken by the Indenture Trustee upon payment by the Seller or the Servicer, as
applicable, of the related Repurchase Price for such Repurchased Contract.




ARTICLE I.



DEFINITIONS AND INCORPORATION BY REFERENCE




          SECTION 1.1. Definitions. Capitalized terms are used in this Indenture as defined in
Appendix A to the Sale and Servicing Agreement dated as of [           ] (as amended,
modified or supplemented from time to time, the “Sale and Servicing Agreement”), among
Drive Auto Receivables LLC, as seller, the Issuer, Drive Consumer USA Inc., as servicer, and the
Indenture Trustee.




          SECTION 1.2. Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have the following
meanings:




          “Commission” means the Securities and Exchange Commission.




          “indenture securities” means the Notes.




          “indenture security holder” means a Noteholder.




          “indenture to be qualified” means this Indenture.




          “indenture trustee” or “institutional trustee” means the Indenture Trustee.




          “obligor” on the indenture securities means the Issuer and any other obligor on the
indenture securities.




          All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule have the meaning assigned to them by
such definitions.




          SECTION 1.3. Other Interpretive Provisions. All terms defined in this Indenture
shall have the defined meanings when used in any certificate or other document delivered pursuant
hereto unless otherwise defined therein. For purposes of this Indenture and all such certificates
and other documents, unless the context otherwise requires: (a) accounting terms not otherwise
defined in this Indenture, and accounting terms partly defined in this Indenture to the extent not
defined, shall have the respective meanings given to them under GAAP (provided, that, to the extent
that the definitions in this Indenture and GAAP conflict, the definitions in this Indenture shall
control); (b) the words “hereof,” “herein” and “hereunder” and words of similar import refer to
this Indenture as a whole and not to any particular provision of this Indenture; (c) references to
any Article, Section, Schedule or Exhibit are references to Articles, Sections, Schedules and
Exhibits in or to this Indenture and references to any paragraph, subsection, clause or other
subdivision within any Section or definition refer to such paragraph, subsection, clause or other
subdivision of such Section or definition; (d) the term “including” and all variations thereof
means “including without limitation”; (e) except as otherwise expressly provided herein,

2









 








references to any law or regulation refer to that law or regulation as amended from time to
time and include any successor law or regulation; (f) references to any Person include that
Person’s successors and assigns; and (g) headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.




ARTICLE II.



THE NOTES




          SECTION 2.1. Form. The Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and Class
A-4 Notes, in each case together with the Indenture Trustee’s certificate of authentication, shall
be in substantially the form set forth in Exhibit A hereto, 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
the Notes, as evidenced by their execution of the Notes. Any portion of the text of any Note may be
set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.




          Each Note shall be dated the date of its authentication. The terms of the Notes set forth in
Exhibit A hereto are part of the terms of this Indenture.




          SECTION 2.2. Execution, Authentication and Delivery. The Notes shall be executed on
behalf of the Issuer by any of its Authorized Officers. The signature of any such Authorized
Officer on the Notes may be manual or facsimile.




          Notes bearing the manual or facsimile signature of individuals who were at any time Authorized
Officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.




          The Indenture Trustee shall, [upon receipt of the Policy and] upon Issuer Order, authenticate
and deliver Class A-1 Notes for original issue in an Initial Note Balance of $[       ], Class
A-2 Notes for original issue in an Initial Note Balance of $[       ], Class A-3 Notes for
original issue in an Initial Note Balance of $[       ] and Class A-4 Notes for original issue
in an Initial Note Balance of $[       ]. The Note Balance of Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes and Class A-4 Notes Outstanding at any time may not exceed such amounts except as
provided in Section 2.5.




          Each Note shall be dated the date of its authentication. The Notes shall be issuable as
registered Notes in the minimum denomination of $1,000 and in integral multiples of $1,000 in
excess thereof.




          No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose, unless there appears on such Note a certificate of authentication substantially in the
form provided for herein executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive evidence, and the
only evidence, that such Note has been duly authenticated and delivered hereunder.




3









 








          SECTION 2.3. Temporary Notes. Pending the preparation of Definitive Notes, the
Issuer may execute, and upon receipt of an Issuer Order, the Indenture Trustee shall authenticate
and deliver, temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, of the tenor of the Definitive Notes in lieu of which they are issued and with
such variations not inconsistent with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.




          If temporary Notes are issued, the Issuer 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 upon Issuer Order shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Notes of authorized denominations. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits under this Indenture as Definitive
Notes.




          SECTION 2.4. Registration of Transfer and Exchange. The Issuer shall cause to be
kept a register (the “Note Register”) in which, subject to such reasonable regulations as
it may prescribe, the Issuer shall provide for the registration of Notes and the registration of
transfers of Notes. The Indenture Trustee shall initially be “Note Registrar” for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any resignation of any Note
Registrar, the Issuer shall promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of Note Registrar.




          If a Person other than the Indenture Trustee is appointed by the Issuer as Note Registrar, 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, and the
Indenture Trustee shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to conclusively rely upon a
certificate executed on behalf of Note Registrar by a Responsible Officer thereof as to the names
and addresses of the Noteholders and the principal amounts and number of such Notes.




          Upon surrender for registration of transfer of any Note at the office or agency of the Issuer
to be maintained as provided in Section 3.2, if the requirements of Section 8-401 of the
UCC are met, the Issuer shall execute and upon its written request 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, in any authorized denominations, of
the same Class and a like Note Balance.




          At the option of the related Noteholder, Notes may be exchanged for other Notes in any
authorized denominations, of the same Class and a like Note Balance, 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 UCC are met the Issuer shall execute and, upon Issuer Request,
the Indenture Trustee shall authenticate and the related Noteholder shall obtain from the Indenture
Trustee, the Notes which the Noteholder making the exchange is entitled to receive.




4









 








          All Notes issued upon any registration of transfer or exchange of Notes shall be the valid
obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer or exchange.




          Every Note presented or surrendered for registration of transfer or exchange shall be (i) duly
endorsed by, or be accompanied by a written instrument of transfer in form and substance
satisfactory to the Issuer and the Indenture Trustee duly executed by the Noteholder thereof or its
attorney-in-fact duly authorized in writing, with such signature guaranteed by an “eligible grantor
institution” meeting the requirements of the Note Registrar which requirements include membership
or participation in a Securities Transfer Agents Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by the Note Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Exchange Act and (ii) accompanied by such other
documents as the Indenture Trustee may require.




          No service charge shall be made to a Noteholder 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 Section 9.6 not involving
any transfer.




          By acquiring a Note, each purchaser and transferee shall be deemed to represent and warrant
that either (a) it is not acquiring such Note with the plan assets of an “employee benefit plan” as
defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, a “plan” as defined in
Section 4975 of the Code, an entity deemed to hold the plan assets of any of the foregoing or any
other plan that is subject to any law that is substantially similar to ERISA or Section 4975 of the
Code or (b) the acquisition and holding of such Note will not give rise to a non-exempt prohibited
transaction under Section 406(a) of ERISA of Section 4975 of the Code or any substantially similar
applicable law.




          The preceding provisions of this Section notwithstanding, the Issuer shall not be required to
make and the Note Registrar need not register transfers or exchanges of any Notes selected for
redemption or of any Note for a period of 15 days preceding the due date for any payment with
respect to such Note.




          SECTION 2.5. Mutilated, Destroyed, Lost or Stolen Notes. If (i) any mutilated Note
is surrendered to the Indenture Trustee, or the Indenture Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note, and (ii) there is delivered to the
Indenture Trustee [and the Insurer (unless an Insurer Default shall have occurred and be
continuing)] such security or indemnity as may be required by it to hold the Issuer[, the Insurer]
and the Indenture Trustee harmless, then, in the absence of notice to the Issuer, the Note
Registrar or the Indenture Trustee that such Note has been acquired by a “protected purchaser” (as
contemplated by Article 8 of the UCC), and provided that the requirements of Section 8-405 of the
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; provided that if any such destroyed, lost or stolen Note, but not
a mutilated Note, shall have become or within seven days shall be due and payable, or shall have
been called for redemption, instead of issuing a replacement Note, the Issuer may upon delivery

5









 








of the security or indemnity herein required pay such destroyed, lost or stolen Note when so
due or payable or upon the Redemption Date without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note pursuant to the proviso to the
preceding sentence, a “protected purchaser” (as contemplated by Article 8 of the UCC) of the
original Note in lieu of which such replacement Note was issued presents for payment such original
Note, the Issuer[, the Insurer] 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” (as contemplated by Article 8 of the UCC), 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[, the Insurer] or the Indenture Trustee in
connection therewith.




          Upon the issuance of any replacement Note under this Section 2.5, the Issuer or the
Indenture Trustee may require the payment by the Noteholder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Indenture Trustee or the Note Registrar) connected
therewith.




          Every replacement Note issued pursuant to this Section 2.5 in replacement of any
mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual
obligation of the Issuer and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.




          The provisions of this Section 2.5 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes.




          SECTION 2.6. Persons Deemed Owners. Prior to due presentment for registration of
transfer of any Note, the Issuer, the Indenture Trustee[, the Insurer] and any agent of the
Issuer[, the Insurer] or the Indenture Trustee may treat the Person in whose name any Note is
registered (as of the day of determination) as the owner of such Note for the purpose of receiving
payments of principal of and interest, if any, on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and neither the Issuer, the Indenture Trustee[, the Insurer]
nor any agent of the Issuer[, the Insurer] or the Indenture Trustee shall be affected by notice to
the contrary.




          SECTION 2.7. Payment of Principal and Interest; Defaulted Interest.




          (a) Each of the Notes shall accrue interest at its respective Interest Rate, and such interest
shall be due and payable on each Payment Date as specified therein, subject to Sections 3.1
and 8.2. Any installment of interest or principal, if any, due and payable on any Note
which is punctually paid or duly provided for by the Issuer on the applicable Payment Date shall be
paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered on the
Record Date, by check mailed first-class, postage prepaid, to such Person’s address as it appears
on the Note Register on such Record Date, except that, unless Definitive Notes have been issued
pursuant to Section 2.12, with respect to Notes registered on the Record

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Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede &
Co.), payment will be made by wire transfer in immediately available funds to the account
designated by such nominee and except for the final installment of principal payable with respect
to such Note on a Payment Date or on the Final Scheduled Payment Date for such Class (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.




          (b) The principal of each Note shall be payable in installments on each Payment Date as
provided in Section 8.2. Notwithstanding the foregoing, the entire unpaid Note Balance and
all accrued interest thereon shall be due and payable, if not previously paid, on the earlier of
(i) the date on which an Event of Default shall have occurred and is continuing, if the Controlling
Party has declared the Notes to be immediately due and payable in the manner provided in
Section 5.2 and (ii) with respect to any Class of Notes, on the Final Scheduled Payment
Date for that Class. All principal payments on each Class of Notes shall be made pro rata to the
Noteholders of such Class entitled thereto. The Indenture Trustee shall notify the Person in whose
name a Note is registered at the close of business on the Record Date preceding the Payment Date on
which Indenture Trustee expects that the final installment of principal of and interest on such
Note will be paid. Such notice shall be transmitted prior to such final Payment Date and shall
specify that such final installment will be payable only upon presentation and surrender of such
Note and shall specify the place where such Note may be presented and surrendered for payment of
such installment. Notices in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2.




          (c) If the Issuer defaults in a payment of interest on any Class of Notes, the Issuer shall
pay defaulted interest (plus interest on such defaulted interest to the extent lawful at the
applicable Interest Rate for such Class of Notes), which shall be due and payable on the Payment
Date following such default. The Issuer shall pay such defaulted interest to the Persons who are
Noteholders on the Record Date for such following Payment Date.




          SECTION 2.8. 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[;
provided that no Note shall be cancelled if amounts paid in respect of such Note were made from
funds paid by the Insurer under the Policy until the Insurer has received all amounts owed
thereunder]. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as
provided in this Section, except as expressly permitted by this Indenture. All cancelled Notes may
be held or disposed of by the Indenture Trustee in accordance with its standard retention or
disposal policy as in effect at the time unless the Issuer shall direct by an Issuer Order that
they be destroyed or returned to it; provided that such Issuer Order is timely and that such Notes
have not been previously disposed of by the Indenture Trustee.




          SECTION 2.9. Release of Collateral. Subject to Section 11.1, the Indenture
Trustee shall release property from the lien of this Indenture only upon receipt of an Issuer

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Request accompanied by an Officer’s Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA §§ 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 § 304(d) modifying the
Issuer’s obligations under TIA §§ 314(c) and 314(d)(1), subject to Section 11.1 and the
terms of the Transaction Documents, 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 2.10. Book-Entry Notes. The Notes, upon original issuance, will be issued in
the form of typewritten Notes representing the Book-Entry Notes, to be delivered to the Indenture
Trustee, as agent for DTC, the initial Clearing Agency, by, or on behalf of, the Issuer. One fully
registered Note shall be issued with respect to each $500 million in principal amount of each Class
of Notes and any such lesser amount. Such Notes shall initially be registered on the Note Register
in the name of Cede & Co., the nominee of the initial Clearing Agency, and no Note Owner shall
receive a Definitive Note representing such Note Owner’s interest in such Note, except as provided
in Section 2.12. Unless and until definitive, fully registered Notes (the “Definitive
Notes”) have been issued to Note Owners pursuant to Section 2.12:




          (a) the provisions of this Section shall be in full force and effect;




          (b) 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 Noteholders, and
shall have no obligation to the Note Owners;




          (c) to the extent that the provisions of this Section conflict with any other provisions of
this Indenture, the provisions of this Section shall control;




          (d) the rights of Note Owners shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between or among such Note Owners and the
Clearing Agency and/or the Clearing Agency Participants or Persons acting through Clearing Agency
Participants. Pursuant to the Depository Agreement, unless and until Definitive Notes are issued
pursuant to Section 2.12, the initial Clearing Agency will make book-entry transfers among
the Clearing Agency Participants and receive and transmit payments of principal of and interest on
the Notes to such Clearing Agency Participants; and




          (e) whenever this Indenture requires or permits actions to be taken based upon instructions or
directions of Noteholders evidencing a specified percentage of the Note Balance, the Clearing
Agency shall be deemed to represent such percentage only to the extent that it has received
instructions to such effect from Note Owners and/or Clearing Agency Participants or Persons acting
through Clearing Agency Participants owning or representing, respectively, such required percentage
of the beneficial interest in the Notes and has delivered such instructions to the Indenture
Trustee.




          SECTION 2.11. Notices to Clearing Agency. Whenever a notice or other communication
to the Noteholders is required under this Indenture, unless and until Definitive Notes shall have
been issued to Note Owners pursuant to Section 2.12, the Indenture Trustee

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shall give all such notices and communications specified herein to be given to the Noteholders
to the Clearing Agency, and shall have no obligation to the Note Owners.




          SECTION 2.12. Definitive Notes. If (a) the Administrator advises the Indenture
Trustee in writing that the Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Notes, and the Administrator or the Indenture Trustee is
unable to locate a qualified successor, (b) 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
(c) after the occurrence of an Event of Default, Note Owners representing beneficial interests
aggregating at least a majority of the Note Balance, voting together as a single Class, advise the
Indenture Trustee through the Clearing Agency or its successor in writing that the continuation of
a book entry system through the Clearing Agency or its successor is no longer in the best interests
of the Note Owners, then the Clearing Agency shall notify all Note Owners and the Indenture Trustee
of the occurrence of any such event and of the availability of Definitive Notes to Note Owners
requesting the same. Upon surrender to the Indenture Trustee of the typewritten Note or Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by registration instructions,
the Issuer shall execute and the Indenture Trustee shall authenticate the Definitive Notes in
accordance with the instructions of the Clearing Agency. None of the Issuer, Note Registrar or the
Indenture Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of
Definitive Notes, the Indenture Trustee shall recognize the Holders of the Definitive Notes as
Noteholders.




          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.




          SECTION 2.13. Authenticating Agents.




          (a) Upon the request of the Issuer, the Indenture Trustee shall, and if the Indenture Trustee
so chooses, 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,
2.4, 2.5 and 9.6, 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 shall be deemed to be the authentication of Notes “by the Indenture Trustee.” The
Indenture Trustee shall be the Authenticating Agent in the absence of any appointment thereof.




          (b) 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.




9









 








          (c) Any Authenticating Agent may at any time resign by giving written notice of resignation to
the Indenture Trustee and the Issuer. The Indenture Trustee may at any time terminate the agency of
any Authenticating Agent by giving written notice of termination to such Authenticating Agent and
the Issuer. Upon receiving such notice of resignation or upon such termination, the Indenture
Trustee may appoint a successor Authenticating Agent and shall give written notice of any such
appointment to the Issuer.




          (d) The provisions of Section 6.4 shall be applicable to any Authenticating Agent.




          SECTION 2.14. Tax Treatment. The Issuer has entered into this Indenture, and the
Notes shall be issued, with the intention that, solely for federal, state and local income and
franchise tax purposes, the Notes shall qualify as indebtedness 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.




ARTICLE III.



COVENANTS




          SECTION 3.1. Payment of Principal and Interest. The Issuer will duly and punctually
pay the principal of and interest on the Notes in accordance with the terms of the Notes and this
Indenture. Without limiting the foregoing and subject to Section 8.2, on each Payment Date
the Issuer shall cause to be paid all Available Funds in accordance with the Sale and Servicing
Agreement. Amounts properly withheld under the Code by any Person from a payment to any Noteholder
of interest and/or principal shall be considered to have been paid by the Issuer to such Noteholder
for all purposes of this Indenture. Interest accrued on the Notes shall be due and payable on each
Payment Date. The final interest payment on each Class of Notes is due on the earlier of (a) the
Payment Date (including any Redemption Date) on which the principal amount of that Class of Notes
is reduced to zero or (b) the applicable Final Scheduled Payment Date for that Class of Notes.




          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, and the Issuer hereby appoints the
Indenture Trustee as its agent to receive all such surrenders, notices and demands.




          SECTION 3.3. Money for Payments To Be Held in Trust. As provided in Section
8.2 and 5.4, all payments of amounts due and payable with respect to any Notes that are
to be made from amounts withdrawn from the Trust Accounts shall be made on behalf of the

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Issuer by the Indenture Trustee or by another Paying Agent, and no amounts so withdrawn
therefrom for payments on the Notes shall be paid over to the Issuer except as provided in this
Section and Section 4.4 of the Sale and Servicing Agreement.




          On or prior to each Payment Date and Redemption Date, the Issuer shall deposit or cause to be
deposited into the Collection Account an aggregate sum sufficient to pay the amounts then becoming
due under the Notes and other Persons entitled to payment on each Payment Date, and the Paying
Agent shall hold such sum to be held in trust for the benefit of the Persons entitled thereto
pursuant to the Transaction Documents and (unless the Paying Agent is the Indenture Trustee) shall
promptly notify the Indenture Trustee in writing of its action or failure so to act.




          The Issuer shall cause each Paying Agent other than the Indenture Trustee to execute and
deliver to the Indenture Trustee [and the Insurer] 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 to the extent relevant), subject to the provisions of this Section, that such Paying Agent
will:





          (i) hold all sums held by it for the payment of amounts due with respect to the Notes
in trust for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and pay such sums to such Persons
as provided in the Transaction Documents;




          (ii) give the Indenture Trustee written notice of any default by the Issuer (or any
other obligor upon the Notes) of which it has actual knowledge in the making of any payment
required to be made with respect to the Notes;




          (iii) at any time during the continuance of any such default, upon the written request
of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust
by such Paying Agent;




          (iv) immediately resign as a Paying Agent and forthwith pay to the Indenture Trustee
all sums held by it in trust for the payment of Notes if at any time it ceases to meet the
standards required to be met by a Paying Agent at the time of its appointment; and




          (v) comply with all requirements of the Code with respect to the withholding from any
payments made by it on any Notes of any applicable withholding taxes imposed thereon and
with respect to any applicable reporting requirements in connection therewith.



          The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, by Issuer Order direct any Paying Agent to pay to the
Indenture Trustee all sums held in trust by such Paying Agent, such sums to be held by the
Indenture Trustee upon the same trusts as those upon which such sums were held by such Paying
Agent; and upon such a payment by any Paying Agent to the Indenture Trustee, such Paying Agent
shall be released from all further liability with respect to such money.




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          Subject to applicable laws with respect to the escheat of funds, any money held by the
Indenture Trustee or any Paying Agent in trust for the payment of any amount due with respect to
any Note and remaining unclaimed for two years after such amount has become due and payable shall
be discharged from such trust and distributed by the Indenture Trustee to the Issuer on Issuer
Request [with the consent of the Insurer (unless an Insurer Default shall have occurred and is
continuing)] and the Holder of such Note shall thereafter, as an unsecured general creditor, look
only to the Issuer for payment thereof and all liability of the Indenture Trustee or such Paying
Agent with respect to such trust money shall thereupon cease; [provided, however, that if such
money or any portion thereof had been previously deposited by the Insurer with the Indenture
Trustee for the payment of principal or interest of the Notes, to the extent any amounts are owing
to the Insurer, such amounts shall be paid promptly to the Insurer upon the Indenture Trustee’s
receipt of a written request by the Insurer to such effect;] and provided, further, that the
Indenture Trustee or such Paying Agent, before being required to make any such repayment, shall at
the reasonable expense of the Issuer cause to be published once, in a newspaper published in the
English language, customarily published on each Business Day and of general circulation in the City
of New York, notice that such money remains unclaimed and that, after a date specified therein,
which date shall not be less than 30 days from the date of such publication, any unclaimed balance
of such money then remaining shall be paid to the Issuer. The Indenture Trustee may also adopt and
employ, at the written direction of and at the expense of the Issuer, any other reasonable means of
notification of such repayment (including, but not limited to, mailing notice of such repayment to
Holders whose Notes have been called but have not been surrendered for redemption or whose right to
or interest in monies due and payable but not claimed is determinable from the records of the
Indenture Trustee or of any Paying Agent, at the last address of record for each such Noteholder).




          SECTION 3.4. Existence. The Issuer will keep in full effect its existence, rights
and franchises as a statutory trust under the laws of the State of Delaware.




          SECTION 3.5. Protection of Collateral. The Issuer intends the security interest
Granted pursuant to this Indenture in favor of the Indenture Trustee on behalf of the Indenture
Secured Parties to be prior to all other Liens in respect of the Collateral, and the Issuer shall
take all actions necessary to obtain and maintain, for the benefit of the Indenture Trustee on
behalf of the Indenture Secured Parties, a first Lien on and a first priority, perfected security
interest in the Collateral. The Issuer shall from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements, continuation statements,
instruments of further assurance and other instruments, all as prepared by the Administrator and
delivered to the Issuer, and shall take such other action necessary or advisable to:




          (a) Grant more effectively all or any portion of the Collateral;




          (b) maintain or preserve the lien and security interest (and the priority thereof) created by
this Indenture or carry out more effectively the purposes hereof;




          (c) perfect, publish notice of or protect the validity of any Grant made or to be made by this
Indenture;




          (d) enforce any of the Collateral; or




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          (e) preserve and defend title to the Collateral and the rights of the Indenture Trustee and
the Noteholders in the Collateral against the claims of all Persons.




          The Issuer hereby designates the Indenture Trustee as its agent and attorney-in-fact and
hereby authorizes the Indenture Trustee to file all financing statements, continuation statements
or other instruments required to be executed (if any) pursuant to this Section. Notwithstanding any
statement to the contrary contained herein or in any other Transaction Document, the Issuer shall
not be required to notify any insurer with respect to any Insurance Policy about any aspect of the
transactions contemplated by the Transaction Documents.




          SECTION 3.6. Opinions as to Collateral.




          (a) On the Closing Date, the Issuer shall furnish to the Indenture Trustee [and the Insurer]
an Opinion of Counsel either stating (i) that, in the opinion of such counsel, such action has been
taken with respect to the recording and filing of this Indenture, any indentures supplemental
hereto, and any other requisite documents, and with respect to the execution and filing of any
financing statements and continuation statements, as are necessary to perfect and make effective
the first priority lien and security interest of this Indenture and reciting the details of such
action, or (ii) that, in the opinion of such counsel, no such action is necessary to make such lien
and security interest effective.




          (b) Within 90 days after the beginning of each calendar year, beginning with the first
calendar year more than three months after the Closing Date, the Issuer shall furnish to the
Indenture Trustee [and the Insurer] an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any other requisite documents
and with respect to the execution and filing of any financing statements and continuation
statements as are necessary to maintain the 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 will, in the opinion of such counsel, be required to
maintain the lien and security interest of this Indenture until the 90th day to occur in
the following calendar year.




          SECTION 3.7. Performance of Obligations; Servicing of Contracts.




          (a) The Issuer shall not take any action and shall use its best efforts not to permit any
action to be taken by others, including the Administrator, that would release any Person from any
of such Person’s material covenants or obligations under any instrument or agreement included in
the Trust Estate or that would result in the amendment, hypothecation, subordination, termination
or discharge of, or impair the validity or effectiveness of, any such instrument or agreement,
except as ordered by any bankruptcy or other court or as expressly provided in this Indenture, the
Transaction Documents or such other instrument or agreement.




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          (b) The Issuer may contract with other Persons [acceptable to the Insurer (unless an Insurer
Default shall have occurred and is continuing)] to assist it in performing its duties under this
Indenture, and any performance of such duties by a Person identified to the Indenture Trustee [and
the Insurer] 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 Administrator, and the Administrator has
agreed, to assist the Issuer in performing its duties under this Indenture. [The Insurer hereby
consents to such contract.]




          (c) The Issuer shall, and shall cause the Administrator and the Servicer to, punctually
perform and observe all of its respective obligations and agreements contained in this Indenture,
the other Transaction Documents and the instruments and agreements included in the Collateral,
including but not limited to preparing (or causing to prepared) and filing (or causing to be filed)
all UCC financing statements and continuation statements required to be filed by the terms of this
Indenture and the other Transaction Documents in accordance with and within the time periods
provided for herein and therein. Except as otherwise expressly provided therein, the Issuer shall
not waive, amend, modify, supplement or terminate any Transaction Document or any provision thereof
other than in accordance with the amendment provisions set forth in such Transaction Document.




          (d) Upon a Responsible Officer of the Owner Trustee having actual knowledge or receipt of
written notice thereof, the Issuer shall promptly notify the Indenture Trustee[, the Insurer] and
the Rating Agencies of the occurrence of a Servicer Termination Event [or a Servicing Termination
Trigger Event], and shall specify in such notice the action, if any, the Issuer is taking in
respect of such default. If a Servicer Termination Event [or Servicing Termination Trigger Event]
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 Contracts, the Issuer shall take all reasonable
steps available to it to remedy such failure.




          (e) The Issuer agrees that it will not waive timely performance or observance by the Servicer
or the Seller of their respective duties under the Transaction Documents[, prior to the Termination
Date without the prior written consent of the Insurer (so long as the Insurer is the Controlling
Party)], or if the effect thereof would adversely affect the Holders of the Notes.




          SECTION 3.8. Negative Covenants. So long as any Notes are Outstanding, the Issuer
shall not:




          (a) except as expressly permitted by this Indenture or the other Transaction Documents, sell,
transfer, exchange or otherwise dispose of any of the properties or assets of the Issuer, including
those included in the Trust Estate[, unless directed to do so by the Insurer (so long as the
Insurer is the Controlling Party)];




          (b) claim any credit on, or make any deduction from the principal or interest payable in
respect of, the Notes (other than amounts properly withheld from such payments under the Code) or
assert any claim against any present or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Trust Estate; or




14









 








          (c) (i) permit the validity or effectiveness of this Indenture to be impaired, or permit the
lien in favor of the Indenture Trustee created by this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture except as may be expressly permitted
hereby, (ii) permit any Lien to be created on or extend to or otherwise arise upon or burden the
Trust Estate or any part thereof or any interest therein or the proceeds thereof (other than tax
liens, mechanics’ liens and other liens that arise by operation of law, in each case on a Financed
Vehicle and arising solely as a result of an action or omission of the related Obligor), (iii)
permit the lien of this Indenture not to constitute a valid perfected first priority (other than
with respect to any such tax, mechanics’ or other lien) security interest in the Trust Estate, (iv)
change its name, identity, State of organization or structure as a statutory trust in any manner
that would, could or might make any financing statement or continuation statement filed with
respect to it seriously misleading within the meaning of Section 9-506, Section 9-507 or Section
9-508 of the UCC [(so long as the Insurer is the Controlling Party)] or (v) amend, modify or fail
to comply with the provisions of the Transaction Documents[, prior to the Termination Date, without
the prior written consent of the Insurer (so long as the Insurer is the Controlling Party)].




          SECTION 3.9. Annual Compliance Statement.




          (a) The Issuer shall deliver to the Indenture Trustee[, the Insurer] and each Rating Agency,
within 120 days after the end of each calendar year (commencing
with the year ending December 31, [           ]), an Officer’s Certificate stating, as to the Responsible 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 the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officer and the nature and status
thereof.



          (b) The Issuer shall:





          (i) file with the Indenture Trustee, within 15 days after the Issuer is required (if at
all) to file the same with the Commission, copies of the annual reports and such other
information, documents and reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribe) as the Issuer may
be required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
or such other reports required pursuant to TIA § 314(a)(1);




          (ii) file with the Indenture Trustee and the Commission in accordance with rules and
regulations prescribed from time to time by the Commission such other information, documents
and reports with respect to compliance by the Issuer with the



15









 







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 as required by TIA § 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 3.9(b) as may be required pursuant to rules and regulations prescribed from
time to time by the Commission.



          (c) Unless the Issuer otherwise determines, the fiscal year of the Issuer shall be the same as
the fiscal year of the Servicer.




          SECTION 3.10. Issuer May Consolidate, Etc. Only on Certain Terms.




          (a) The Issuer shall not consolidate or merge with or into any other Person, unless:





          (i) the Person (if other than the Issuer) formed by or surviving such consolidation or
merger shall be a Person organized and existing under the laws of the United States or any
State and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form satisfactory to the Indenture Trustee, [and
prior to the Termination Date and so long as the Insurer is the Controlling Party, the
Insurer,] 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 [and the Insurer]) to the effect that such
transaction will not have any material adverse tax consequence to the Trust, any Noteholder
or any Residual Interestholder;




          (v) any action as is necessary to maintain the Lien and security interest created by
this Indenture shall have been taken;




          (vi) [prior to the Termination Date and so long as the Insurer is the Controlling
Party, the Insurer has given its prior written consent;] and




          (vii) the Issuer shall have delivered to the Indenture Trustee [and the Insurer] an
Officer’s Certificate and an Opinion of Counsel each stating that such consolidation or
merger and such supplemental indenture comply with this Section 



16









 







3.10(a) and that all conditions precedent herein provided for relating to such
transaction have been complied with.



          (b) The Issuer shall not convey or transfer all or substantially all of its properties or
assets, including those included in the Trust Estate, to any Person, unless:





          (i) the Person that acquires by conveyance or transfer the properties and assets of the
Issuer the conveyance or transfer of which is hereby restricted shall (A) be a United States
citizen or a Person organized and existing under the laws of the United States or any State,
(B) expressly assume, by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture Trustee[, and prior to the
Termination Date and so long as the Insurer is the Controlling Party, the Insurer], the due
and punctual payment of the principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture and each of the Transaction
Documents on the part of the Issuer to be performed or observed, all as provided herein, (C)
expressly agree by means of such supplemental indenture that all right, title and interest
so conveyed or transferred shall be subject and subordinate to the rights of Holders of the
Notes and (D) unless otherwise provided in such supplemental indenture, expressly agree to
indemnify, defend and hold harmless the Issuer against and from any loss, liability or
expense arising under or related to this Indenture and the Notes;




          (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 [and the Insurer]) to the effect that such
transaction will not have any material adverse tax consequence to the Trust, any Noteholder
or any Residual Interestholder;




          (v) any action as is necessary to maintain the Lien and security interest created by
this Indenture shall have been taken;




          (vi) [prior to the Termination Date and so long as the Insurer is the Controlling
Party, the Insurer shall have given its prior written consent;] and




          (vii) the Issuer shall have delivered to the Indenture Trustee [and the Insurer] an
Officer’s Certificate and an Opinion of Counsel each stating that such conveyance or
transfer and such supplemental indenture comply with this Section 3.10(b) and that
all conditions precedent herein provided for relating to such transaction have been complied
with.



          SECTION 3.11. Restrictions on Certain Other Activities. The Issuer shall not: (i)
engage in any business other than financing, purchasing, owning, selling and managing the Contracts
in the manner contemplated by this Indenture and the Transaction Documents and

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activities incidental thereto and any other activities permitted under the Trust Agreement;
(ii) issue, incur, assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for: (A) the Notes, [(B) obligations owing from time to time to the Insurer,]
and (C) any other indebtedness permitted by or arising under the Transaction Documents. The
proceeds of the Notes and the Residual Interests shall be used exclusively to fund the Issuer’s
purchase of the Contracts and the other assets specified in the Sale and Servicing Agreement, to
fund the Reserve Account, if applicable, the Pre-Funding Account and the Capitalized Interest
Account and to pay the Issuer’s organizational, transactional and start-up expenses; (iii) 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, except as contemplated by the Transaction
Documents; or (iv) make any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).




          SECTION 3.12. Restricted Payments. The Issuer shall not, directly or indirectly, (a)
pay any dividend or make any distribution (by reduction of capital or otherwise), whether in cash,
property, securities or a combination thereof, to the Owner Trustee or any owner of a beneficial
interest in the Issuer or otherwise with respect to any ownership or equity interest or security in
or of the Issuer or to the Servicer or the Administrator, (b) redeem, purchase, retire or otherwise
acquire for value any such ownership or equity interest or security or (c) set aside or otherwise
segregate any amounts for any such purpose; provided that the Issuer may cause to be made
distributions to the Servicer, the Administrator, the Owner Trustee, the Indenture Trustee, the
Noteholders[, the Insurer] and the Residual Interestholders as permitted by, and to the extent
funds are available for such purpose under this Indenture, the Sale and Servicing Agreement, the
Administration Agreement or the Trust Agreement. Other than as set forth in the preceding sentence,
the Issuer will not, directly or indirectly, make distributions from the Trust Accounts except in
accordance with this Indenture and the other Transaction Documents.




          SECTION 3.13. Notice of Events of Default. Upon a Responsible Officer of the Owner
Trustee having actual knowledge or receipt of written notice thereof, the Issuer agrees to give the
Indenture Trustee[, the Insurer] and the Rating Agencies prompt written notice of each Event of
Default hereunder and each default on the part of the Servicer or the Seller of its obligations
under the Sale and Servicing Agreement.




          SECTION 3.14. Further Instruments and Acts. Upon request of the Indenture Trustee
[or the Insurer], 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 3.15. Compliance with Laws. The Issuer shall comply with the requirements of
all applicable laws, the non-compliance with which would, individually or in the aggregate,
materially and adversely affect the ability of the Issuer to perform its obligations under the
Notes, this Indenture or any other Transaction Document.




18









 








          SECTION 3.16. 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 [and the Insurer consents in writing].




          SECTION 3.17. Perfection Representations, Warranties and Covenants. The perfection
representations, warranties and covenants attached hereto as Schedule II shall be deemed to
be part of this Indenture for all purposes.




          SECTION 3.18. Investment Company Act Representation. The Issuer hereby represents
and warrants to the Indenture Trustee [and the Insurer] that it is not an “investment company” that
is registered or required to be registered under, or otherwise subject to the restrictions of, the
Investment Company Act of 1940, as amended.




ARTICLE IV.



SATISFACTION AND DISCHARGE




          SECTION 4.1. Satisfaction and Discharge of Indenture. This Indenture shall cease to
be of further effect with respect to the Notes except as to (a) rights of registration of transfer
and exchange, (b) substitution of mutilated, destroyed, lost or stolen Notes, (c) rights of
Noteholders to receive payments of principal thereof and interest thereon, (d) Sections
3.3, 3.4, 3.5, 3.8, 3.11, 3.12, (e) the rights,
obligations and immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Section 6.7 and the obligations of the Indenture Trustee under
Section 4.2) and (f) the rights of Noteholders as beneficiaries hereof with respect to the
property so deposited with the Indenture Trustee payable to all or any of them, and the Indenture
Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the Notes, when:




          (a) either (i) all Notes theretofore authenticated and delivered (other than (1) Notes that
have been destroyed, lost or stolen and that have been replaced or paid as provided in Section
2.5 and (2) Notes for which payment money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust,
as provided in Section 3.3) have been delivered to the Indenture Trustee for cancellation
[and the Policy has expired and been returned to the Insurer for cancellation] or (ii) all Notes
not theretofore delivered to the Indenture Trustee for cancellation (1) have become due and
payable, (2) will become due and payable at the Final Scheduled Payment Date within one year, or
(3) are to be called for redemption within one year under arrangements satisfactory to the
Indenture Trustee for the giving of notice of redemption by the Indenture Trustee in the name, and
at the expense, of the Issuer, and the Issuer, in the case of clauses (1), (2) or (3), has
irrevocably deposited or caused to be irrevocably deposited with the Indenture Trustee cash or
direct obligations of or obligations guaranteed by the United States of America (which will mature
prior to the date such amounts are payable), in trust for such purpose, in an amount sufficient to
pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Indenture
Trustee for cancellation when due to the Final Scheduled Payment Date or Redemption Date (if Notes
shall have been called for redemption pursuant to Section 10.1), as the case may be;




19









 








          (b) the Issuer has paid or caused to be paid all other sums payable under the Transaction
Documents by the Issuer[, including, without limitation, all amounts owed to the Insurer]; and




          (c) the Issuer has delivered to the Indenture Trustee [and the Insurer] an Officer’s
Certificate, an Opinion of Counsel and (if required by the TIA[, the Insurer (unless an Insurer
Default has occurred and is continuing)] or the Indenture Trustee, a certificate from a firm of
certified public accountants, each meeting the applicable requirements of Section 11.1(a)
and, subject to Section 11.2, and each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have been complied with
(and, in the case of an Officer’s Certificate, stating that the Rating Agency Condition has been
satisfied).




          SECTION 4.2. 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, this Indenture and Article IV of the Sale and Servicing
Agreement. Such monies need not be segregated from other funds except to the extent required
herein, in the Sale and Servicing Agreement or by law.




          SECTION 4.3. 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. The occurrence and continuation 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) shall
constitute a default under this Indenture (each, an “Event of Default”):




          (a) default by the Issuer in the payment of any interest on any Note when the same becomes due
and payable, and such default shall continue for a period of five days [(it being understood that
any payment by the Insurer under the Policy shall not constitute payment by the Issuer)];




          (b) default by the Issuer in the payment of the principal of or any installment of the
principal of any Note on the applicable Final Scheduled Payment Date [(it being understood that any
payment by the Insurer under the Policy shall not constitute payment by the Issuer)];




          (c) default in the observance or performance of any covenant or agreement of the Issuer made
in this Indenture (other than a covenant or agreement, a default in the observance or performance
of which is elsewhere in this Section specifically dealt with), or any representation or warranty
of the Issuer made in this Indenture or in any certificate or other

20









 








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 (a)
materially and adversely affect the interests of the Issuer[, the Insurer] or the Noteholders in
the Contracts and (b) continue or not be cured, or the circumstance or condition in respect of
which such misrepresentation or warranty was incorrect shall not have been eliminated or otherwise
cured, for a period of 30 days after there shall have been given to the Issuer by the Indenture
Trustee or to the Issuer and the Indenture Trustee by the Holders of not less than a majority of
the Note Balance [or the Insurer], a written notice specifying such default or incorrect
representation or warranty and requiring it to be remedied and stating that such notice is a
“Notice of Default” hereunder;




          (d) the filing of a decree or order for relief by a court having jurisdiction in the premises
in respect of the Seller or 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 60 consecutive days;




          (e) 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 action by the Issuer in furtherance of any of the foregoing;




          (f) the occurrence of a Servicer Termination Event; or




          (g) the Trust becoming treated as an association (or publicly traded partnership) taxable as a
corporation for federal or state income tax purposes.




          SECTION 5.2. Acceleration of Maturity; Waiver of Event of Default.




          (a) [Unless an Insurer Default has occurred and is continuing, if an Event of Default shall
have occurred and is continuing, then the Insurer shall have the right, but not the obligation,
upon prior written notice to each Rating Agency, to declare by written notice to the Issuer and the
Indenture Trustee that the Notes are immediately due and payable, and upon any such declaration,
the Note Balance, together with accrued and unpaid interest thereon, shall become immediately due
and payable. The Indenture Trustee will have no discretion with respect to the acceleration of the
Notes under the foregoing circumstances. In the event of any such acceleration of the Notes, the
Indenture Trustee shall continue to make claims under the Policy with respect to the Notes.]




          (b) If [an Insurer Default shall have occurred and is continuing and] an Event of Default
shall have occurred and is continuing, the Indenture Trustee shall, if so requested in

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writing by the Holders of not less than the majority of the Note Balance, and upon written
notice to each Rating Agency, declare that the Notes are immediately due and payable, and upon any
such declaration the Note Balance, together with accrued and unpaid interest thereon, shall become
immediately due and payable.




          (c) [In the event any Notes are accelerated due to an Event of Default, the Insurer shall have
the right (in addition to its obligation to pay Insured Payments as defined in and in accordance
with the Policy on the Notes), but not the obligation, to make payments under the Policy or
otherwise of interest and principal due on such Notes, in whole or in part on any date or dates
following such acceleration as the Insurer, in its sole discretion, shall elect.]




          (d) At any time after such declaration of acceleration of maturity has been made and before a
judgment or decree for payment of the money due has been obtained by the Indenture Trustee as
hereinafter provided for in this Article V, [the Insurer in its sole discretion or if an
Insurer Default has occurred and is continuing,] the Noteholders representing a majority of the
Note Balance, by written notice to the Issuer and the Indenture Trustee, may rescind and annul such
declaration and its consequences if:





          (i) the Issuer has paid or deposited with the Indenture Trustee a sum sufficient to pay
(A) all payments of principal of and interest on all Notes and all other amounts that would
then be due hereunder or upon such Notes if the Event of Default giving rise to such
acceleration had not occurred and (B) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee and its agents and counsel; and




          (ii) all Events of Default, other than the nonpayment of the principal of the Notes
that has become due solely by such acceleration, have been cured or waived as provided in
Section 5.12.



          No such rescission shall affect any subsequent default or impair any right consequent thereto.




          If the Notes have been declared due and payable, the Indenture Trustee may institute
proceedings to collect amounts due, exercise remedies as a secured party (including foreclosure or
sale of the Collateral) or elect to maintain the Collateral and continue to apply the proceeds from
the Collateral as if there had been no declaration of acceleration. Any sale of the Collateral by
the Indenture Trustee will be subject to the terms and conditions of Section 5.4.




          SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by the Indenture
Trustee.




          (a) The Issuer covenants that if (i) default is made in the payment of any interest on any
Note when the same becomes due and payable, and such default continues for a period of five days,
or (ii) default is made in the payment of the principal of or any installment of the principal of
any Note when the same becomes due and payable, the Issuer will, upon demand of the Indenture
Trustee in writing as directed by the Controlling Party, 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, with interest upon the overdue principal, and, to the extent

22









 








payment at such rate of interest shall be legally enforceable, upon overdue installments of
interest, at the applicable Interest Rate and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee and its agents and counsel.




          (b) The Issuer hereby irrevocably and unconditionally appoints the Indenture Trustee as the
true and lawful attorney-in-fact of the Issuer, with full power of substitution, to execute,
acknowledge and deliver any notice, document, certificate, paper, pleading or instrument and to do
in the name of the Indenture Trustee as well as in the name, place and stead of the Issuer, such
acts, things and deeds for or on behalf of and in the name of the Issuer under this Indenture
(including specifically under Section 5.4) and under the other Transaction Documents which
the Issuer could or might do or which may be necessary, desirable or convenient in the Indenture
Trustee’s sole discretion to effect the purposes contemplated hereunder and under the other
Transaction Documents and, without limitation, following the occurrence of an Event of Default,
[acting at the written instruction or with the written consent of the Insurer (so long as the
Insurer is the Controlling Party)] exercise full right, power and authority to take, or defer from
taking, any and all acts with respect to the administration, maintenance or disposition of the
Trust Estate.




          (c) In case the Issuer shall fail forthwith to pay the amounts described in clause (a)
above upon such demand, the Indenture Trustee, in its own name and as trustee of an express trust,
shall, if so directed by the Controlling Party, institute a proceeding for the collection of the
sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect in the manner
provided by law out of the property of the Issuer or other obligor upon such Notes, wherever
situated, the monies adjudged or decreed to be payable.




          (d) If an Event of Default shall have occurred and is continuing, the Indenture Trustee may,
as more particularly provided in Section 5.4, in its discretion but with the consent of the
Controlling Party, and shall at the direction of the Controlling Party, proceed to protect and
enforce its rights and the rights of the Noteholders, by such appropriate proceedings as the
Indenture Trustee or the Controlling Party 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.




          (e) In case there shall be pending, relative to the Issuer or any other obligor upon the Notes
or any Person having or claiming an ownership interest in the Collateral, proceedings under the
Bankruptcy Code or any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken possession of the Issuer or
its property or such other obligor or Person, or in case of any other comparable judicial
proceedings relative to the Issuer or other obligor upon the Notes, or to the creditors or property
of the Issuer or such other obligor, the 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

23









 








demand pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:





          (i) to file and prove a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Notes and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture Trustee (including
any claim for reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and for reimbursement
of all expenses and liabilities incurred, and all advances made, by the Indenture Trustee
and each predecessor Indenture Trustee, except as a result of negligence, bad faith or
willful misconduct) and of the Noteholders allowed in such proceedings;




          (ii) unless prohibited by applicable law and regulations, to vote on behalf of the
Noteholders in any election of a trustee, a standby trustee or person performing similar
functions in any such proceedings;




          (iii) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute all amounts received with respect to the claims of the
Noteholders[, each Reserve Account Letter of Credit Bank][, the Insurer] and of the
Indenture Trustee on their behalf; and




          (iv) to file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee[, each Reserve Account Letter
of Credit Bank][, the Insurer], 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 Noteholder to make payments to the Indenture Trustee, and, in the
event that the Indenture Trustee shall consent to the making of payments directly to such
Noteholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their
respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture Trustee except as a result
of negligence, bad faith or willful misconduct, and any other amounts due the Indenture Trustee
under Section 6.7.




          (f) 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.




          (g) 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

24









 








action or proceedings instituted by the Indenture Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents and attorneys, shall be for the ratable benefit of the Holders of the
Notes[, the Insurer] [and each Reserve Account Letter of Credit Bank].




          (h) 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 is continuing, the Indenture Trustee shall,
at the direction of the Controlling Party, do one or more of the following (subject to Sections
5.2 and 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 other remedies of a secured party under the UCC and take any other
appropriate action to protect and enforce the rights and remedies of the Indenture Trustee
and the Noteholders; and




          (iv) subject to Section 5.17, after an acceleration of the maturity of the
Notes pursuant to Section 5.2, 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 exercise the remedy described in clause
(ii) above following an Event of Default unless (A) the holders of 100% of the Note Balance of
the Outstanding Notes [and the Insurer (so long as the Insurer is the Controlling Party)] have
consented to such liquidation, (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 [and all amounts due to
the Insurer under the Transaction Documents]; (C)(I) [the Insurer is the Controlling Party and so
directs, (II)] the Event of Default relates to the failure to pay interest or principal when due
and payable (a “Payment Default”) and (III) the Indenture Trustee determines [(after
consultation with the Insurer)] (but shall have no obligation to make such determination unless
directed by the Controlling Party) that the collections on the Contracts will not be sufficient on
an ongoing basis to make all payments on the Notes as they would become due if the Notes had not
been declared due and payable or (D)(I) [the Insurer is not the Controlling Party, (II)] the
Holders of at least 66 2/3% of the Note Balance of the Outstanding Notes have consented to such
liquidation, (III) the related Event of Default relates to a Payment Default and (IV) the Indenture
Trustee determines




25









 







(but shall have no obligation to make such determination) that the collections on the Contracts
will not be sufficient on an ongoing basis to make all payments on the Notes as they would become
due if the Notes had not been declared due and payable. In determining such sufficiency or
insufficiency with respect to clauses (C) and (D) of the preceding sentence, the Indenture Trustee
may, but need not, obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.




          (b) If an Event of Default occurs and the Notes have been accelerated, the Indenture Trustee
may exercise any of the remedies specified in Section 5.4(a). Following acceleration of
the Notes, the Indenture Trustee shall pay out such money or property (and other amounts, including
all amounts held on deposit in the Trust Accounts) held as Collateral for the benefit of the
Noteholders (net of liquidation costs associated with the sale of the Trust Estate) in the
following order of priority:





          (i) first, (A) to the Servicer, the Servicing Fee or to any Successor Servicer, the
Successor Servicing Fee, as applicable; to the Indenture Trustee, the Indenture Trustee Fee;
to the Owner Trustee, the Owner Trustee Fee; and to the Backup Servicer, the Backup
Servicer’s Fee for such Payment Date and, in each such case, together with all such unpaid
fees from prior Collection Periods and (B) to any Successor Servicer, any unpaid Transition
Expenses which may be due to it as provided in Section 7.1(d) of the Sale and Servicing
Agreement;




          (ii) [second, to the Insurer, the Premium due pursuant to the Insurance Agreement;]




          (iii) third, to Noteholders for amounts due and unpaid on the Notes for interest,
ratably, without preference or priority of any kind, according to the amounts due and
payable on the Notes for interest;




          (iv) fourth, to Noteholders for amounts due and unpaid on the Notes for principal,
ratably, without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal;




          (v) [fifth, to the Insurer, the Reimbursement Obligations;]




          (vi) sixth, to the Residual Interestholders, any funds available following the payment
in full of all amounts set forth in clauses first through fifth.



          The Indenture Trustee may fix a record date and payment date for any payment to Noteholders
pursuant to this Section. At least 15 days before such record date, the Issuer shall mail to each
Noteholder and the Indenture Trustee a notice that states the record date, the payment date and the
amount to be paid.




          Prior to an acceleration of the Notes after an Event of Default, if the Indenture Trustee
collects any money or property pursuant to this Article V, such amounts shall be deposited
into the Collection Account and distributed in accordance with Section 4.4 of the Sale and
Servicing Agreement and Section 8.2 hereof.




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          (c) Subject to the other provisions of this Indenture, the Indenture Trustee, [prior to the
Termination Date,] may [with the prior written consent of the Insurer (so long as the Insurer is
the Controlling Party) or shall, at the direction of the Insurer (so long as the Insurer is the
Controlling Party), and thereafter may] at its discretion, proceed to protect and enforce its
rights and the rights of the Noteholders [and the Insurer] by such appropriate proceedings as the
Indenture Trustee shall deem most effective to protect and enforce any such rights, whether for
specific performance 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.




          SECTION 5.5. Optional Preservation of the Collateral. 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,
[prior to the Termination Date with the prior written consent of the Insurer, but need not unless
directed by the Insurer (so long as the Insurer is the Controlling Party) prior to the Termination
Date,] elect to direct the Indenture Trustee to maintain possession of the Trust Estate. It is the
desire of the parties hereto and the Noteholders that there be at all times sufficient funds for
the payment of principal of and interest on the Notes, and the Indenture Trustee shall take such
desire into account when determining whether or not to direct the Indenture Trustee to maintain
possession of the Trust Estate. In determining whether to direct the Indenture Trustee to maintain
possession of the Trust Estate, the Indenture Trustee may, [but need not unless directed by the
Insurer (so long as the Insurer is the Controlling Party) prior to the Termination Date,] obtain
and rely upon an opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the sufficiency of the Trust
Estate for such purpose.




          SECTION 5.6. Limitation of Suits.




          (a) No Holder of any Note shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless:





          (i) such Holder has previously given written notice to the Indenture Trustee of a
continuing Event of Default;




          (ii) (A) the Event of Default arises from the Seller’s or the Servicer’s failure to
remit payments under the Sale and Servicing Agreement when due or (B) the Holders of a
majority of the Note Balance shall have made written request to the Indenture Trustee to
institute such proceeding in respect of such Event of Default in its own name as Indenture
Trustee hereunder;




          (iii) such Holder or Holders have offered to the Indenture Trustee indemnity reasonably
satisfactory to it against the costs, expenses and liabilities to be incurred in complying
with such request;




          (iv) the Indenture Trustee for 30 days after its receipt of such notice, request and
offer of indemnity has failed to institute such proceedings;




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          (v) no direction inconsistent with such written request has been given to the Indenture
Trustee during such 30-day period; [and




          (vi) the Insurer (so long as the Insurer is the Controlling Party) has given its prior
written consent;]


it being understood and intended that no one or more Holders of Notes shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all Noteholders.




          In the event the Indenture Trustee shall receive conflicting or inconsistent requests and
indemnity from two or more groups of Noteholders, each representing less than a majority of the
Note Balance, the Indenture Trustee in its sole discretion may determine what action, if any, shall
be taken, notwithstanding any other provisions of this Indenture.




          (b) No Noteholder shall have any right to vote except as provided pursuant to this Indenture
and the Notes, nor any right in any manner to otherwise control the operation and management of the
Issuer. However, in connection with any action as to which Noteholders are entitled to vote or
consent under this Indenture and the Notes, the Issuer may set a record date for purposes of
determining the identity of Noteholders entitled to vote or consent in accordance with TIA §
316(c).




          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, 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
Noteholder.




          SECTION 5.8. Restoration of Rights and Remedies. If the Indenture Trustee[, the
Insurer (so long as the Insurer is the Controlling Party)] 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[, the Insurer] or to such Noteholder, then and in every such case the Issuer, the Indenture
Trustee[, the Insurer] 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[, the Insurer] and the Noteholders shall continue as
though no such proceeding had been instituted.




          SECTION 5.9. Rights and Remedies Cumulative. Except as provided in Section
5.6, no right or remedy herein conferred upon or reserved to the Indenture Trustee[, the
Insurer, each Reserve Account Letter of Credit Bank] 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




28









 




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[, the Insurer, each Reserve Account Letter of Credit Bank] or any Holder of any Note to
exercise any right or remedy accruing upon any Default or Event of Default shall impair any such
right or remedy or constitute a waiver of any such Default or Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Indenture Trustee[, the
Insurer, each Reserve Account Letter of Credit Bank,] or to the Noteholders may be exercised from
time to time, and as often as may be deemed expedient, by the Indenture Trustee, each Reserve
Account Letter of Credit Bank,] [the Insurer] or by the Noteholders, as the case may be.




          SECTION 5.11. Control by Noteholders. [If an Insurer Default shall have occurred and
is continuing, and] subject to the provisions of Sections 5.4, 5.6, 6.2(d)
and 6.2(e), Noteholders holding not less than a majority of the Note Balance, 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 with respect to the exercise of any
trust or power conferred on the Indenture Trustee; provided that




          (a) such direction shall not be in conflict with any rule of law or with this Indenture;




          (b) any such direction to the Indenture Trustee to sell or liquidate the Collateral shall be
subject to the terms of Section 5.4(a);




          (c) if the conditions set forth in Section 5.5 have been satisfied and the Indenture
Trustee elects to retain the Trust Estate pursuant to such Section, then any direction to the
Indenture Trustee by Holders of Notes representing less than 100% of the Note Balance of the
Outstanding Notes to sell or liquidate the Trust Estate shall be of no force and effect;




          (d) the Indenture Trustee may take any other action deemed proper by the Indenture Trustee
that is not inconsistent with such direction, applicable law and the terms of this Indenture; and




          (e) such direction shall be in writing;



provided, further, that, subject to Section 6.1, the Indenture Trustee need not take any
action that it determines might expose it to personal liability or might materially adversely
affect or unduly prejudice 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 Insurer or, if an Insurer
Default shall have occurred and is continuing,] the Holders of Notes of not less than a majority of
the Note Balance may waive any past Default or Event of Default and its consequences except a
Default (a) in payment of principal of or interest on any of the Notes, (b) in respect of a
covenant or provision hereof which cannot be modified or amended without the consent of each




29









 




Noteholder or (c) arising from a Bankruptcy Event with respect to the Issuer. In the case of any
such waiver, the Issuer, the Indenture Trustee and the Noteholders shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereto.




          Upon any such waiver, such 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 prior, 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 attorneys’ fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to (a) any suit instituted by the Indenture Trustee, (b) any suit
instituted by any Noteholder, or group of Noteholders, in each case holding in the aggregate more
than 10% of the Note Balance of the Outstanding Notes or (c) any suit instituted by any Noteholder
for the enforcement of the payment of principal of or interest on any Note on or after the
respective due dates expressed in such Note and in this Indenture (or, in the case of redemption,
on or after the Redemption Date).




          SECTION 5.14. Waiver of Stay or Extension Laws. The Issuer covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead or in any manner
whatsoever, claim or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not 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), if the maturity of the Notes has been accelerated pursuant to
Section 5.2, or Section 4.4 of the Sale and Servicing Agreement and Section 8.2 of
this Indenture, if the maturity of the Notes has not been accelerated.




30









 





          SECTION 5.16. Performance and Enforcement of Certain Obligations.




          (a) Promptly following a request from the Indenture Trustee [or, prior to the Termination Date
and so long as the Insurer is the Controlling Party, the Insurer,] to do so and at the Seller’s
expense, the Issuer agrees to take all such lawful action as the Indenture Trustee [or the Insurer]
may request to compel or secure the performance and observance by the Seller and the Servicer, as
applicable, of each of their obligations to the Issuer under or in connection with the Sale and
Servicing Agreement in accordance with the terms thereof, and to exercise any and all rights,
remedies, powers and privileges lawfully available to the Issuer under or in connection with the
Sale and Servicing Agreement to the extent and in the manner directed by the Indenture Trustee, [or
prior to the Termination Date and so long as the Insurer is the Controlling Party, the Insurer,]
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, the Indenture Trustee may, [with the prior written
consent of the Insurer (so long as the Insurer is the Controlling Party) or at the written
direction of the Insurer (so long as the Insurer is the Controlling Party), shall,] exercise all
rights, remedies, powers, privileges and claims of the Issuer against the Seller or the Servicer
under or in connection with the Sale and Servicing Agreement, including the right or power to take
any action to compel or secure performance or observance by the Seller or the Servicer of each of
their obligations to the Issuer thereunder and to give any consent, request, notice, direction,
approval, extension or waiver under the Sale and Servicing Agreement, and any right of the Issuer
to take such action shall be suspended.




          SECTION 5.17. Sale of Collateral. If the Indenture Trustee acts to sell the
Collateral or any part thereof, pursuant to Section 5.4(a), the Indenture Trustee shall
publish a notice in an Authorized Newspaper stating that the Indenture Trustee intends to effect
such a sale in a commercially reasonable manner and on commercially reasonable terms, which shall
include the solicitation of competitive bids. Following such publication, the Indenture Trustee
shall, unless otherwise prohibited by applicable law from any such action, sell the Collateral or
any part thereof, in such manner and on such terms as provided above to the highest bidder,
provided, however, that the Indenture Trustee may from time to time postpone any sale by public
announcement made at the time and place of such sale. The Indenture Trustee shall give notice to
the Seller and the Servicer of any proposed sale, and the Seller, the Servicer or any Affiliate
thereof shall be permitted to bid for the Collateral at any such sale. The Indenture Trustee may
obtain a prior determination from a conservator, receiver or trustee in bankruptcy of the Issuer
that the terms and manner of any proposed sale are commercially reasonable. The power to effect any
sale of any portion of the Collateral pursuant to Section 5.4 and this Section 5.17
shall not be exhausted by any one or more sales as to any portion of the Collateral remaining
unsold, but shall continue unimpaired until the entire Collateral shall have been sold or all
amounts payable on the Notes shall have been paid.




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ARTICLE VI.

THE INDENTURE TRUSTEE




          SECTION 6.1. Duties of the Indenture Trustee.




          (a) If an Event of Default has occurred and is continuing, the Indenture Trustee shall
exercise the rights and powers vested in it by this Indenture and shall 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) Prior to the occurrence 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 the other Transaction Documents to which it is
a part and no implied covenants or obligations shall be read into this Indenture or the
other Transaction Documents against the Indenture Trustee; and




          (ii) in the absence of bad faith, the Indenture Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture and the other Transaction Documents; provided, however, the
Indenture Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture and the other Transaction Documents.



          (c) The Indenture Trustee shall not be relieved from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct, except that:





          (i) this paragraph does not limit the effect of paragraph (b) of this Section;




          (ii) the Indenture Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Indenture Trustee unless it is proved that the
Indenture Trustee was negligent in ascertaining the pertinent facts; and




          (iii) the Indenture Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant to
Section 5.11.



          (d) Every provision of this Indenture that in any way relates to the Indenture Trustee is
subject to paragraphs (a), (b) and (c).




          (e) 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.




          (f) 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




32









 




grounds to believe that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.




          (g) 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.




          (h) The Indenture Trustee shall take all actions required to be taken by the Indenture Trustee
under the Sale and Servicing Agreement.




          (i) Without limiting the generality of this Section, the Indenture Trustee shall have no duty
(i) to see to any recording, filing or depositing of this Indenture or any agreement referred to
herein or any financing statement or continuation statement evidencing a security interest in the
Financed Vehicles, or to see to the maintenance of any such recording or filing or depositing or to
any rerecording, refiling or redepositing of any thereof, (ii) to see to any insurance on the
Financed Vehicles or Obligors or to effect or maintain any such insurance, (iii) to see to the
payment or discharge of any tax, assessment or other governmental charge or any Lien or encumbrance
of any kind owing with respect to, assessed or levied against any part of the Trust, (iv) to
confirm or verify the contents of any reports or certificates delivered to the Indenture Trustee
pursuant to this Indenture or the Sale and Servicing Agreement believed by the Indenture Trustee to
be genuine and to have been signed or presented by the proper party or parties, or (v) to inspect
the Financed Vehicles at any time or ascertain or inquire as to the performance or observance of
any of the Issuer’s, the Seller’s or the Servicer’s representations, warranties or covenants or the
Servicer’s duties and obligations as Servicer and as custodian of the original certificates of
title to the Financed Vehicles under the Sale and Servicing Agreement.




          (j) In no event shall [               ], in any of its capacities hereunder, be deemed to
have assumed any duties of the Owner Trustee under the Statutory Trust Act, common law or the Trust
Agreement.




          (k) [The Indenture Trustee shall, upon reasonable prior notice to the Indenture Trustee by the
Insurer, permit any representative of the Insurer, during the Indenture Trustee’s normal business
hours, to examine all books of account, records, reports and other papers of the Indenture Trustee
relating to the Notes, to make copies and extracts therefrom and to discuss the Indenture Trustee’s
affairs and actions, as such affairs and actions relate to the Indenture Trustee’s duties with
respect to the Notes, with the Indenture Trustee’s officers and employees responsible for carrying
out the Indenture Trustee’s duties with respect to the Notes.]




          SECTION 6.2. Rights of the Indenture Trustee. Except as otherwise provided in
Section 6.1:




          (a) before the Indenture Trustee acts or refrains from acting, it may require an Officer’s
Certificate and/or an Opinion of Counsel; the Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of
Counsel;




33









 





          (b) 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;




          (c) 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
the Indenture Trustee’s conduct does not constitute willful misconduct, negligence or bad faith;




          (d) the Indenture Trustee may consult with counsel, and the written advice or Opinion of
Counsel with respect to legal matters relating to this Indenture and the Notes shall be full and
complete authorization and protection from liability in respect to any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the written advice or opinion of such
counsel;




          (e) the Indenture Trustee shall be under no obligation to exercise any of the rights and
powers vested in it by this Indenture or the other Transaction Documents, or to institute, conduct
or defend any litigation under this Indenture or in relation to this Indenture, at the request,
order or direction of any of the Holders of Notes, pursuant to the provisions of this Indenture,
unless such Holders of Notes shall have offered to the Indenture Trustee reasonable security or
indemnity reasonably satisfactory to the Indenture Trustee against the costs, expenses and
liabilities that may be incurred therein or thereby; provided, however, that the Indenture Trustee
shall, upon the occurrence of an Event of Default (that has not been cured), exercise the rights
and powers vested in it by this Indenture with the same degree of care and skill in its exercise as
a prudent person would exercise or use under the circumstances in the conduct of such person’s own
affairs;




          (f) prior to the occurrence of an Event of Default, the Indenture Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by the Holders of a majority of the Note
Balance [or the Insurer (so long as the Insurer is the Controlling Party)]; provided, however, that
if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is, in the opinion of
the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to
it by the terms of this Indenture, the Indenture Trustee may require indemnity reasonably
satisfactory to the Indenture Trustee against such cost, expense or liability as a condition to so
proceeding; the reasonable expense of every such examination shall be paid by the requesting
Holders [or the Insurer, as applicable,] or, if paid by the Indenture Trustee, shall be reimbursed
by the requesting Holders [or the Insurer, as applicable,] upon demand; and




          (g) delivery of any reports, information and documents to the Indenture Trustee provided for
herein is for informational purposes only (unless otherwise expressly stated herein) and the
Indenture Trustee’s receipt of such shall not constitute constructive knowledge of any information
contained therein or determinable from information contained therein, including the Issuer’s
compliance with any of its representations, warranties or covenants hereunder (as to which the
Indenture Trustee is entitled to rely exclusively on Officers’ Certificates).




34









 





          SECTION 6.3. Individual Rights of the Indenture Trustee. Subject to § 310 of the
TIA, the Indenture Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or its Affiliates with the same rights it would
have if it were not Indenture Trustee. Any Paying Agent, Note Registrar, co-registrar or co-paying
agent may do the same with like rights. The Indenture Trustee, however, must comply with
Section 6.11.




          SECTION 6.4. Indenture Trustee’s Disclaimer. The Indenture Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of this Indenture, the
Trust Estate or the Notes, shall not be accountable for the Issuer’s use of the proceeds from the
Notes and shall not be responsible for any statement of the Issuer in the Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other than the Indenture
Trustee’s certificate of authentication.




          SECTION 6.5. Notice of Event of Default. If a Default occurs and is continuing and
if it is either actually known or written notice of the existence thereof has been delivered to a
Responsible Officer of the Indenture Trustee, the Indenture Trustee shall mail to each Noteholder
and the Rating Agencies notice of the Default within 5 days after such knowledge or notice occurs.
Except in the case of a Default in payment of principal of or interest on any Note (including
payments pursuant to the mandatory redemption provisions of such Note), the Indenture Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Noteholders.




          SECTION 6.6. Reports by Indenture Trustee to Holders. The Indenture Trustee shall, on
behalf of the Issuer, deliver to each Noteholder such information as may be reasonably required to
enable such Holder to prepare its federal and state income tax returns.




          SECTION 6.7. Compensation.




          (a) The Issuer shall cause the Servicer to pay to the Indenture Trustee from time to time
compensation for its services. The Indenture Trustee’s compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Issuer shall cause the Servicer 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, except any such
expense as may be attributable to its willful misconduct, negligence or bad faith. Such expenses
shall include securities transaction charges relating to the investment of funds (net of investment
earnings) on behalf of the Indenture Trustee on deposit in the Trust Accounts (except for the
Residual Interest Account) and the reasonable compensation and reasonable expenses, disbursements
and advances of the Indenture Trustee’s counsel and of all persons not regularly in its employ;
provided, however, that the securities transaction charges referred to above shall, in the case of
certain Eligible Investments selected by the Servicer, be waived for a particular investment in the
event that any amounts are received by the Indenture Trustee from a financial institution in
connection with the purchase of such Eligible Investments.




          (b) The Issuer’s payment obligations to the Indenture Trustee pursuant to this Section shall
survive the discharge of this Indenture. When the Indenture Trustee incurs expenses after the
occurrence of an Event of Default specified in Section 5.1(d) or (e) with




35









 




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. Notwithstanding anything else set forth in this Indenture or the other
Transaction Documents, the Indenture Trustee agrees that the obligations of the Issuer (but not the
Servicer) to the Indenture Trustee hereunder and under the other Transaction Documents shall not be
recourse to the assets of the Issuer or any Noteholder.




          SECTION 6.8. Removal, Resignation and Replacement of the Indenture Trustee. The
Indenture Trustee may resign at any time by so notifying the Issuer[, the Insurer], the
Administrator, the Servicer and each Rating Agency. The Controlling Party may remove the Indenture
Trustee without cause by so notifying the Indenture Trustee and the Issuer, and following that
removal may appoint a successor to the Indenture Trustee. The Issuer shall remove the Indenture
Trustee if:




          (a) the Indenture Trustee fails to comply with Section 6.11;




          (b) a Bankruptcy Event occurs with respect to the Indenture Trustee;




          (c) a receiver or other public officer takes charge of the Indenture Trustee or its property;
or




          (d) the Indenture Trustee otherwise becomes incapable of acting.




          (e) [The Insurer (so long as it is the Controlling Party) may remove the Indenture Trustee for
any reason.]




          (f) 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), [prior to the Termination Date and so long as the Insurer is the
Controlling Party, the Insurer may appoint a successor Indenture Trustee and if it fails to,] the
Issuer shall promptly appoint a successor Indenture Trustee [acceptable to the Insurer. After the
Termination Date, the Issuer may appoint a successor Indenture Trustee without the consent of the
Insurer]. A successor Indenture Trustee shall deliver a written acceptance of its appointment to
the retiring Indenture Trustee and to the Issuer. Thereupon the resignation or removal of the
retiring Indenture Trustee shall become effective, and the successor Indenture Trustee shall have
all the rights, powers and duties of the retiring Indenture Trustee under this Indenture subject to
satisfaction of the Rating Agency Condition. The successor Indenture Trustee shall mail a notice
of its succession to Noteholders[, the Insurer] and the Rating Agency. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee.




          If a successor Indenture Trustee [that is, prior to the Termination Date, acceptable to the
Insurer] does not take office within 60 days after the retiring Indenture Trustee resigns or is
removed, the retiring Indenture Trustee, the Issuer or the Holders of a majority of Note Balance of
the Notes may petition any court of competent jurisdiction for the appointment of a successor
Indenture Trustee [that is, prior to the Termination Date and so long as it is the Controlling
Party, acceptable to the Insurer]. If the Indenture Trustee fails to comply with Section
6.13, any Noteholder, [prior to the Termination Date with the prior written consent of the




36









 




Insurer (so long as it is the Controlling Party),] may petition any court of competent
jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee [acceptable to the Insurer].




          Any resignation or removal of the Indenture Trustee and appointment of a successor Indenture
Trustee pursuant to any of the provisions of this Section shall not become effective until
acceptance of appointment by the successor Indenture Trustee [acceptable to the Insurer (so long as
it is the Controlling Party)] pursuant to this Section and payment of all fees and expenses owed to
the outgoing Indenture Trustee by the Servicer. Notwithstanding the replacement of the Indenture
Trustee pursuant to this Section, the Issuer’s and the Servicer’s obligations under Section
6.7 shall continue for the benefit of the retiring Indenture Trustee.




          The Indenture Trustee shall not be liable for the acts or omissions of any successor Indenture
Trustee.




          SECTION 6.9. Successor Indenture Trustee by Merger. If the Indenture Trustee
consolidates with, merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation or banking association, the resulting, surviving
or transferee corporation, provided it meets the eligibility requirements of Section 6.11,
without any further act shall be the successor Indenture Trustee. The Indenture Trustee shall
provide the Rating Agencies [and the Insurer] prior written notice of any such transaction. In
case at the time such successor or successors by merger, conversion or consolidation to the
Indenture Trustee shall succeed to the trusts created by this Indenture any of the Notes shall have
been authenticated but not delivered, any such successor to the Indenture Trustee may adopt the
certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated;
and in case at that time any of the Notes shall not have been authenticated, any successor to the
Indenture Trustee may authenticate such Notes either in the name of any predecessor hereunder or in
the name of the successor to the Indenture Trustee; and in all such cases such certificates shall
have the full force 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, after delivering
written notice to the Administrator, 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 and the Administrator acting jointly, [prior to the Termination Date and so long as the
Insurer is the Controlling Party, with the consent of the Insurer,] shall have the power and may
execute and deliver all instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the Trust Estate, and
to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders [and the
Insurer], such title to the Trust Estate, or any part thereof, and, subject to the other provisions
of this Section, such powers, duties, obligations, rights and trusts as the Indenture Trustee and
the Administrator 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




37









 




notice to Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 6.8.




          (b) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed
and act subject to the following provisions and conditions:





          (i) all rights, powers, duties and obligations conferred or imposed upon the Indenture
Trustee shall be conferred or imposed upon and exercised or performed by the Indenture
Trustee and such separate trustee or co-trustee jointly (it being intended that such
separate trustee or co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed the Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Collateral or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Indenture Trustee;




          (ii) no separate trustee or co-trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder, including acts or omissions of
predecessor or successor trustees; and




          (iii) the Indenture Trustee and the Administrator may at any time accept the
resignation of or remove any separate trustee or co-trustee.



          (c) Any notice, request or other writing given to the Indenture Trustee shall be deemed to
have been given to each of the then separate trustees and co-trustees, as effectively as if given
to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to
this 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 and a copy thereof given to the Administrator.




          (d) Any separate trustee or co-trustee may at any time constitute the Indenture Trustee, its
agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do
any lawful act under or in respect of this Indenture on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be exercised by the
Indenture Trustee, to the extent permitted by law, without the appointment of a new or successor
trustee. Notwithstanding anything to the contrary in this Indenture, the appointment of any
separate trustee or co-trustee shall not relieve the Indenture Trustee of its obligations and
duties under this Indenture.




          SECTION 6.11. Eligibility. The Indenture Trustee shall at all times satisfy the
requirements of TIA § 310(a) and, in addition, shall have a combined capital and surplus of at




38









 




least $250,000,000 as set forth in its most recent published annual report of condition and
shall have a long term debt rating of investment grade or better by each Rating Agency or shall
otherwise be acceptable to each Rating Agency. [The Indenture Trustee shall provide copies of such
reports to the Insurer upon request.] The Indenture Trustee shall also satisfy the requirements of
TIA § 310(b). Neither the Issuer nor any Affiliate of the Issuer may serve as Indenture Trustee.




          SECTION 6.12. Preferential Collection of Claims Against the Issuer. The Indenture
Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b).
Any Indenture Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the
extent indicated.




          SECTION 6.13. Representations and Warranties of the Indenture Trustee. The Indenture
Trustee represents and warrants to the Issuer as follows:





          (i) The Indenture Trustee is a national banking association, duly organized and validly
existing under the laws of the United States and is authorized to conduct and engage in a
banking and trust business under such laws.




          (ii) The Indenture Trustee has full corporate power, authority, and legal right to
execute, deliver, and perform this Indenture, and shall have taken all necessary action to
authorize the execution, delivery and performance by it of this Indenture.




          (iii) This Indenture has been duly executed and delivered by the Indenture Trustee.




          (iv) This Indenture is a legal, valid and binding obligation of the Indenture Trustee
enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors’ rights
generally and to general principles of equity.



ARTICLE VII.

NOTEHOLDERS’ LISTS AND REPORTS




          SECTION 7.1. The Issuer to Furnish the 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 days after each Record Date, a list, in such form as the Indenture Trustee may
reasonably require, of the names and addresses of the Noteholders as of such Record Date, and (b)
at such other times as the Indenture Trustee may request in writing, within 30 days after receipt
by the Issuer of any such request, a list of similar form and content as of a date not more than
ten days prior to the time such list is furnished; provided, however, that so long as (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 to the Indenture Trustee. [The Indenture Trustee or, if the
Indenture Trustee is not the Note Registrar, the Issuer shall furnish such list to the Insurer in
writing at such times as the Insurer may reasonably request.]




39









 





          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 Noteholders contained in the most recent list furnished to the
Indenture Trustee as provided in Section 7.1 and the names and addresses of Noteholders
received by the Indenture Trustee in its capacity as the Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.1 upon receipt of a new list
so furnished; provided, however, that so long as the Indenture Trustee is the Note Registrar or the
Notes are issued as Book-Entry Notes, no such list shall be required to be preserved or maintained.




          (b) The Noteholders may communicate pursuant to TIA § 312(b) with other Noteholders with
respect to their rights under this Indenture or under the Notes. Upon receipt by the Indenture
Trustee of any request by three or more Noteholders or by one or more Noteholders evidencing not
less than 25% of the Note Balance to receive a copy of the current list of Noteholders (whether or
not made pursuant to TIA § 312(b)), the Indenture Trustee shall promptly notify the Administrator
thereof by providing to the Administrator a copy of such request and a copy of the list of
Noteholders produced in response thereto.




          (c) The Issuer, the Indenture Trustee and Note Registrar shall have the protection of TIA §
312(c).




          SECTION 7.3. Reports by the Indenture Trustee. If required by TIA § 313(a), within 60
days after each March 31, beginning with March 31, [           ], the Indenture Trustee shall mail to
each Noteholder as required by TIA § 313(c), a brief report dated as of such date that complies
with TIA § 313(a). The Indenture Trustee also shall comply with TIA § 313(b). A copy of each report
at the time of its mailing to Noteholders shall be filed by the Indenture Trustee with the
Commission and each stock exchange, if any, on which the Notes are listed. The Issuer shall notify
the Indenture Trustee if and when the Notes are listed on any stock exchange.




ARTICLE 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 Trust Estate, the Indenture Trustee may take such
action as may be appropriate to enforce such payment or performance, including the institution and
prosecution of appropriate proceedings. Any such action shall be without prejudice to any right to
claim a Default or Event of Default under this Indenture and any right to proceed thereafter as
provided in Article V.




40









 





          SECTION 8.2. Trust Accounts.




          (a) [Reserved].




          (b) On or before each Payment Date, the Issuer shall cause the Servicer to deposit all
Available Funds with respect to the Collection Period preceding such Payment Date in the Collection
Account as provided in Sections 4.2 and 4.3 of the Sale and Servicing Agreement. On or before each
Payment Date, all amounts required to be withdrawn from the Reserve Account and deposited in the
Collection Account pursuant to Section 4.3 of the Sale and Servicing Agreement shall be withdrawn
by the Indenture Trustee from the Reserve Account and deposited to the Collection Account.




          (c) Prior to the acceleration of the Notes pursuant to Section 5.2 of this Indenture,
on each Payment Date and the Redemption Date, the Indenture Trustee shall distribute all amounts on
deposit in the Principal Distribution Account sequentially to the Class A-1 Noteholders until the
Class A-1 Notes are paid in full, to the Class A-2 Noteholders until the Class A-2 Notes are paid
in full, to the Class A-3 Noteholders until the Class A-3 Notes are paid in full and to the Class
A-4 Noteholders until the Class A-4 Notes are paid in full[; provided, however, that if a Trigger
Event has occurred and is continuing as of such Payment Date or Redemption Date, the Indenture
Trustee shall distribute all amounts on deposit in the Principal Distribution Account [pro rata, to
the Class A-1 Noteholders, the Class A-2 Noteholders, Class A-3 Noteholders and Class A-4
Noteholders until the Note Balances of the Class A-1 Notes, the Class A-2 Notes, Class A-3 Notes
and Class A-4 Notes have been reduced to zero.]]




          (d) On the first Payment Date following the termination of the Funding Period, the Indenture
Trustee shall, based on the information set forth in the related Servicer’s Certificate, withdraw
any remaining funds on deposit in the Pre-Funding Account (excluding investment earnings or income)
and pay to the Noteholders an amount equal to the amount of such funds as follows:





          (i) if the aggregate amount of such funds is greater than $100,000, to the Noteholders,
their pro rata portion of such funds (based on the Initial Note Balance of each Class of
Notes as a fraction of the Initial Note Balance of all Classes of Notes); or




          (ii) if the aggregate amount of such funds is less than or equal to $100,000, to the
Noteholders, the portion of such funds in sequential order of priority beginning with the
Class A-1 Notes.



          (e) [The Indenture Trustee shall make claims under the Policy pursuant to Section 9.1 of the
Sale and Servicing Agreement and in accordance with the Policy. In making such claim, the Indenture
Trustee shall comply with all terms and conditions of the Policy. Upon receipt of the Insured
Payment, the Indenture Trustee shall distribute the Insured Payment pursuant to the Sale and
Servicing Agreement.]




          SECTION 8.3. General Provisions Regarding Accounts.




          (a) The funds on deposit in the Collection Account, the Pre-Funding Account, the Reserve
Account and the Capitalized Interest Account shall each be invested in Eligible




41









 




Investments in accordance with and subject to Section 4.1(b) of the Sale and Servicing
Agreement and all interest and investment income (net of losses and investment expenses) on funds
on deposit in such Trust Accounts shall constitute Available Funds and shall be distributed in
accordance with the provisions of Section 4.4 of the Sale and Servicing Agreement. The Indenture
Trustee shall not be directed to make any investment of any funds or to sell any investment held in
any of the Trust Accounts unless the security interest Granted and perfected in such account will
continue to be perfected in such investment or the proceeds of such sale, in either case without
any further action by any Person, and, in connection with any direction to the Indenture Trustee to
make any such investment or sale, if requested by the Indenture Trustee, the 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), the Indenture Trustee shall not in any way be held
liable by reason of any insufficiency in any of the Trust Accounts resulting from any loss on any
Eligible Investment included therein, except for losses attributable to the Indenture Trustee’s
failure to make payments on any such Eligible Investments issued by the Indenture Trustee in its
commercial capacity as principal obligor and not as trustee, in accordance with their terms.




          (c) If (i) investment directions shall not have been given in writing by the Servicer in
accordance with Section 4.1(b) of the Sale and Servicing Agreement for any funds on deposit in the
Trust Accounts to the Indenture Trustee by 11:00 a.m., New York City time (or such other time as
may be agreed by the Servicer and the Indenture Trustee), on any Business Day or (ii) a Default or
Event of Default shall have occurred and is continuing with respect to the Notes but the Notes
shall not have been declared due and payable pursuant to Section 5.2 or (iii) if the Notes
shall have been declared due and payable following a Default and amounts collected or received from
the Trust Estate are being applied in accordance with Section 5.4 as if there had not been
such a declaration, then the Indenture Trustee shall, to the fullest extent practicable, invest and
reinvest funds in the Trust Accounts in one or more Eligible Investments in accordance with the
standing instructions most recently given by the Servicer.




          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 if permitted and in accordance with the terms hereof, and when required by
the provisions of this Indenture shall, execute instruments to release property from the lien of
this Indenture, 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 to the Indenture Trustee pursuant to Section 6.7 [and all amounts due to the Insurer
under the Transaction Documents] have been paid, release any remaining portion of the Collateral
from the lien of this Indenture and release to the Issuer or any other Person entitled thereto any
funds then on deposit in the Trust Accounts. Such release shall include release of the lien of this
Indenture and transfer of dominion and control over the Trust




42









 




Accounts to the Issuer or its designee. The Indenture Trustee shall release property from the
lien of this Indenture pursuant to this Section 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 §§ 314(c) and 314(d)(1) meeting the applicable requirements of
Section 11.1.




          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, acknowledges that from time to time the Indenture Trustee shall
release the lien of this Indenture on any Contract to be sold to (i) the Seller in accordance with
Section 2.3 of the Sale and Servicing Agreement, (ii) to the Servicer in accordance with Section
3.6 of the Sale and Servicing Agreement and (iii) to the Originator in accordance with Section 3.3
of the Contribution Agreement.




          SECTION 8.5. Opinion of Counsel. The Indenture Trustee shall receive at least seven
days’ notice when requested by Issuer to take any action pursuant to Section 8.4(a),
accompanied by copies of any instruments involved, and the Indenture Trustee may also require as a
condition 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 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[, prior to the Termination Date, with
the prior written consent of the Insurer so long as it is the Controlling Party, and] with prior
notice to the Rating Agencies by the Issuer, as evidenced to the Indenture Trustee, the Issuer and
the Indenture Trustee, when authorized by an Issuer Order, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to the Indenture
Trustee[, and prior to the Termination Date, the Insurer so long as it is the Controlling Party],
for any of the following purposes; provided, however, if any party to this Indenture is unable to
sign any amendment due to its dissolution, winding up or comparable circumstances, then the consent
of the Holders of Notes representing no less than a majority of the Outstanding Note Balance [and
the consent of the Insurer] shall be sufficient to amend this Agreement without such party’s
signature:





          (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;



43









 






          (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 Indenture Secured
Parties, or to surrender any right or power herein conferred upon the Issuer;




          (iv) to convey, transfer, assign, mortgage or pledge any property to or with the
Indenture Trustee;




          (v) to cure any ambiguity, to correct or supplement any provision herein or in any
supplemental indenture which may be inconsistent with any other provision herein or in any
supplemental indenture or to add any other provisions with respect to matters or questions
arising under this Indenture or in any supplemental indenture; provided that such action
shall not adversely affect the interests of the Holders of the Notes;




          (vi) to evidence and provide for the acceptance of the appointment hereunder by a
successor Indenture 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 Indenture Trustee, pursuant to the requirements of
Article VI;




          (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; or




          (viii) to add, modify or eliminate such provisions as may be necessary or advisable in
order to enable (a) the transfer to the Issuer of all or any portion of the Receivables to
be derecognized under GAAP by the Seller to the Issuer, (b) the Issuer to avoid becoming a
member of the Seller’s consolidated group under GAAP or (c) the Seller or any of its
Affiliates to otherwise comply with or obtain more favorable treatment under any law or
regulation or any accounting rule or principle; it being a condition to any such amendment
under this Section 9.1(a)(viii) that the Rating Agency Condition be satisfied.


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 provided that such action shall not adversely affect the interests of the Holders of the
Notes.




          (b) The Issuer and the Indenture Trustee, when authorized by an Issuer Order, may, also
without the consent of any of the Holders of the Notes but[, prior to the Termination Date with the
prior written consent of the Insurer, and] with prior notice to the Rating Agencies by the Issuer,
as evidenced to the Indenture Trustee, enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing in any manner or




44









 




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 (i) that the Rating Agency Condition
shall have been satisfied with respect to such action, and (ii) that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect the interests of any
Noteholder.




          SECTION 9.2. 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 majority of the Holders of not less than a majority of the
Notes, by Act of such Holders delivered to the Issuer and the Indenture Trustee, [and prior to the
Termination Date so long as the Insurer is the Controlling Party, with the consent of the
Insurer,] enter into an indenture or indentures supplemental hereto for the purpose of modifying in
any manner the rights of the Holders of the Notes under this Indenture; provided, however, if any
party to this Indenture is unable to sign any amendment due to its dissolution, winding up or
comparable circumstances, then the consent of Noteholders representing not less than a majority of
the Outstanding Note Balance[, and the consent of the Insurer (so long as it is the Controlling
Party)] shall be sufficient to amend this Agreement without such party’s signature; provided
further, however, that, no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Note affected thereby:





          (i) change the time 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 provision of this Indenture relating to the
application of collections on, or the proceeds of the sale of, the Trust Estate to payment
of principal of or interest on the Notes;




          (ii) 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);




          (iii) reduce the percentage of the Note Balance, 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;




          (iv) modify or alter the provisions of the proviso to the definition of the term
“Outstanding”;




          (v) reduce the percentage of the Note Balance required to direct the Indenture Trustee
to direct the Issuer to sell or liquidate the Trust Estate pursuant to Section 5.4;




          (vi) modify any provision of this Section except to increase any percentage specified
herein or to provide that certain additional provisions of this



45









 






Indenture or the Transaction 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
calculation) 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 Trust Estate or, except as otherwise
permitted or contemplated herein or in any of the other Transaction Documents, terminate the
Lien of this Indenture on any property at any time subject hereto or deprive the Holder of
any Note of the security provided by the Lien of this Indenture.



          Any such supplemental indenture shall be executed only upon delivery of an Opinion of Counsel
to the same effect as in Section 9.1(b)(ii).




          It shall not be necessary for any Act of Noteholders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.




          Promptly after the execution by the Issuer and the Indenture Trustee of any supplemental
indenture pursuant to this Section, the Indenture Trustee shall mail to [the Insurer and] the
Holders of the Notes to which such amendment or supplemental indenture relates a notice to be
provided by the Issuer and at the Issuer’s expense setting forth in general terms the substance of
such supplemental indenture. Any failure of the Indenture Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of any such
supplemental indenture.




          SECTION 9.3. Execution of Supplemental Indentures. In executing, or permitting the
additional trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, [the Insurer and] the Indenture
Trustee shall be entitled to receive, and subject to Sections 6.1 and 6.2, shall be
fully protected in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Indenture Trustee may,
but shall not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee’s own rights, duties, liabilities or immunities under this Indenture or
otherwise.




          SECTION 9.4. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to
be modified and amended in accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer and the Holders of the Notes shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental




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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 may, and if
required by the Indenture Trustee shall, bear a notation in form approved by the Indenture Trustee
as to any matter provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Indenture
Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by the
Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes.




ARTICLE X.

REDEMPTION OF NOTES




          SECTION 10.1. Redemption.




          (a) Each of the Notes is subject to redemption in whole, but not in part, at the direction of
the Servicer pursuant to Section 8.1 of the Sale and Servicing Agreement, on any Payment Date on
which the Servicer exercises its option to purchase the Trust Estate pursuant to said Section 8.1,
for a purchase price equal to the Optional Purchase Price, which amount shall be deposited by the
Servicer into the Collection Account on the Redemption Date.




          (b) Each of the Notes is subject to redemption in whole, but not in part, on any Payment Date
occurring after the end of the Funding Period on which the sum of the amounts in the Reserve
Account and the remaining Available Funds after the payments under clauses first through [seventh]
of Section 4.4(a) of the Sale and Servicing Agreement would be sufficient to pay in full the Note
Balance of all of the Outstanding Notes as determined by the Servicer. On such Payment Date, (i)
the Indenture Trustee upon written direction from the Servicer shall transfer all amounts on
deposit in the Reserve Account to the Collection Account and (ii) the Outstanding Notes shall be
redeemed in whole, but not in part.




          (c) If the Notes are to be redeemed pursuant to Sections 10.1(a) or 10.1(b),
the Administrator or the Issuer shall provide at least 20 days’ prior notice of the redemption of
the Notes to the Indenture Trustee[, the Insurer] and the Owner Trustee, and the Indenture Trustee
shall provide prompt (but not later than 10 days prior to the applicable Redemption Date) notice
thereof to the Noteholders [and the Insurer].




          SECTION 10.2. Form of Redemption Notice. Notice of redemption under Section
10.1 shall be given by the Indenture Trustee by facsimile or by first-class mail, postage
prepaid, transmitted or mailed prior to the applicable Redemption Date to each Holder of Notes as
of the close of business on the Record Date preceding the applicable Redemption Date, at such
Holder’s address appearing in the Note Register.





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          All notices of redemption shall state:





          (i) the Redemption Date;




          (ii) the Redemption Price;




          (iii) that the Record Date otherwise applicable to such Redemption Date is not
applicable and that payments shall be made only upon presentation and surrender of such
Notes, and 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); and




          (iv) that interest on the Notes shall cease to accrue on the Redemption Date.



          Notice of redemption of the Notes shall be given by the Indenture Trustee in the name and at
the expense of the Issuer. In addition, the Issuer shall notify each Rating Agency upon redemption
of the Notes. Failure to give notice of redemption, or any defect therein, to any Noteholder shall
not impair or affect the validity of the redemption of any 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 (in the case of redemption
pursuant to Section 10.1), 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 [or the Insurer] to the Indenture Trustee to
take any action under any provision of this Indenture, the Issuer shall furnish to the Indenture
Trustee [and the Insurer] (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 that
satisfies TIA § 314(c)(1), (ii) an Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with that satisfies TIA § 314(c)(2) and
(iii) if required by the TIA in the case of condition precedent compliance with which is subject to
verification by accountants, a certificate or opinion of an accountant that satisfies TIA §
314(c)(3), except that, in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.




          Every certificate or opinion in accordance with TIA § 314(e) with respect to compliance with a
condition or covenant provided for in this Indenture shall include:




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          (i) a statement that each signatory of such certificate or opinion has read or has
caused to be read such covenant or condition and the definitions herein relating thereto;




          (ii) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




          (iii) a statement that, in the opinion of each such signatory, such signatory has made
such examination or investigation as is necessary to enable such signatory to express an
informed opinion as to whether or not such covenant or condition has been complied with; and




          (iv) a statement as to whether, in the opinion of each such signatory such condition or
covenant has been complied with.



          (b)      (i) Prior to the deposit of any Collateral or other property or securities with the
Indenture Trustee that is to be made the basis for the release of any property or securities
subject to the lien of this Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.1(a) or elsewhere in this Indenture, furnish to the Indenture Trustee [and the
Insurer] an Officer’s Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value in accordance with TIA § 314(d) (within 90 days of such deposit)
to the Issuer of the Collateral or other property or securities to be so deposited.





          (ii) Whenever the Issuer is required to furnish to each of the Indenture Trustee [and
the Insurer] 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
each of the Indenture Trustee [and the Insurer] an Independent Certificate as to the same
matters, if the fair value in accordance with TIA § 314(d) to the Issuer of the property or
securities to be so deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then-current fiscal year of the Issuer,
as set forth in the certificates delivered pursuant to clause (i) and this clause (ii), is
10% or more of the Note Balance, but such a certificate need not be furnished with respect
to any securities so deposited, if the fair value thereof to the Issuer as set forth in the
related Officer’s Certificate is less than $25,000 or less than one percent of the Note
Balance.




          (iii) Other than as contemplated by Section 11.1(b)(v), whenever any property
or securities are to be released from the lien of this Indenture, the Issuer shall also
furnish to each of the Indenture Trustee [and the Insurer] an Officer’s Certificate
certifying or stating the opinion of each person signing such certificate as to the fair
value (within 90 days of such release) of the property or securities proposed to be released
and stating that in the opinion of such person the proposed release will not impair the
security under this Indenture in contravention of the provisions hereof.




          (iv) Whenever the Issuer is required to furnish to each of the Indenture Trustee [and
the Insurer] an Officer’s Certificate certifying or stating the opinion of any



49









 






signer thereof as to the matters described in clause (iii) above, the Issuer shall also
furnish to each of the Indenture Trustee [and the Insurer] an Independent Certificate as to
the same matters if the fair value of the property or securities and of all other property
other than Repurchased Contracts or Charged-Off Contracts, 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 10% or
more of the Note Balance, but such certificate need not be furnished in the case of any
release of property or securities if the fair value thereof as set forth in the related
Officer’s Certificate is less than $25,000 or less than one percent of the then Note
Balance.




          (v) Notwithstanding Section 2.9 or any other provision of this Section, the
Issuer may (A) collect, liquidate, sell or otherwise dispose of Contracts and Financed
Vehicles as and to the extent permitted or required by the Transaction Documents and (B)
make cash payments out of the Trust Accounts as and to the extent permitted or required by
the Transaction Documents.



          SECTION 11.2. Form of Documents Delivered to the Indenture Trustee. In any case
where several matters are required to be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.




          Any certificate or opinion of an Authorized Officer of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his or her certificate or opinion
is based are erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Servicer, the Seller, 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 counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.




          Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.




          Whenever in this Indenture, in connection with any application or certificate or report to the
Indenture Trustee, it is provided that the Issuer shall deliver any document as a condition of the
granting of such application, or as evidence of the Issuer’s compliance with any term hereof, it is
intended that the truth and accuracy, at the time of the granting of such application or at the
effective date of such certificate or report (as the case may be), of the facts and opinions stated
in such document shall in such case be conditions precedent to the right of

50









 








the Issuer to have such application granted or to the sufficiency of such certificate or
report. The foregoing shall not, however, be construed to affect the Indenture Trustee’s right to
rely upon the truth and accuracy of any statement or opinion contained in any such document as
provided in Article VI.




          SECTION 11.3. Acts of Noteholders.




          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Noteholders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Noteholders in person or by
agents duly appointed in writing; and except as herein otherwise expressly provided such action
shall become effective when such instrument or instruments are delivered to the Indenture Trustee,
and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of the Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 6.1) conclusive in favor of the Indenture Trustee
and the Issuer, if made in the manner provided in this Section.




          (b) The fact and date of the execution by any person of any such instrument or writing may be
proved in any manner that the Indenture Trustee deems sufficient.




          (c) The ownership of Notes shall be proved by the Note Register.




          (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by
any Noteholder shall bind the Holder of every Note issued upon the registration thereof or in
exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done
by the Indenture Trustee or the Issuer in reliance thereon, whether or not notation of such action
is made upon such Note.




          SECTION 11.4. Notices. All demands, notices and communications hereunder shall be in
writing and shall be delivered or mailed by registered or certified first-class United States mail,
postage prepaid, hand delivery, prepaid courier service, or by telecopier, and addressed in each
case as set forth in Schedule I or at such other address as shall be designated by any of the
foregoing in a written notice to the other parties hereto. Delivery shall occur only upon receipt
or reported tender of such communication by an officer of the recipient entitled to receive such
notices located at the address of such recipient for notices hereunder.




          SECTION 11.5. Notices to Noteholders; Waiver. Where this Indenture provides for
notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class, postage prepaid or via Electronic
Transmission 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.




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          Where this Indenture provides for notice in any manner, such notice may be waived in writing
by any Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the
Indenture Trustee but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.




          In case, by reason of the suspension of regular mail service as a result of a strike, work
stoppage or similar activity, it shall be impractical to mail notice of any event to Noteholders
when such notice is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.




          Where this Indenture provides for notice to 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 an 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 Noteholder providing for a method of payment, or notice by the Indenture Trustee or any Paying
Agent to such Noteholder, that is different from the methods provided for in this Indenture for
such payments or notices, provided that such methods are reasonable and consented to by the
Indenture Trustee (which consent shall not be unreasonably withheld). The Issuer will furnish to
the Indenture Trustee a copy of each such agreement and the Indenture Trustee will cause payments
to be made and notices to be given in accordance with such agreements.




          SECTION 11.7. Conflict with Trust Indenture Act. If any provision hereof limits,
qualifies or conflicts with another provision hereof that is required to be included in this
Indenture by any of the provisions of the Trust Indenture Act, such required provision shall
control.




          The provisions of TIA §§ 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.




          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.




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          SECTION 11.11. Benefits of Indenture. Nothing in this Indenture or in the Notes,
express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder, and the Noteholders, and any other party secured hereunder, and any other person with an
ownership interest in any part of the Trust Estate, any benefit or any legal or equitable right,
remedy or claim under this Indenture.




          SECTION 11.12. Legal Holidays. In any case where the date on which any payment is
due shall not be a Business Day, then (notwithstanding any other provision of the Notes or this
Indenture) payment need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the date on which nominally due, and no interest
shall accrue for the period from and after any such nominal date.




          SECTION 11.13. GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, INCLUDING, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW BUT EXCLUDING TO THE MAXIMUM EXTENT PERMITTED BY LAW ALL OTHER CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.




          SECTION 11.14. Counterparts. This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.




          SECTION 11.15. Recording of Indenture. If this Indenture is subject to recording in
any appropriate public recording offices, such recording is to be effected by the Issuer and at its
expense accompanied by an Opinion of Counsel (which may be counsel to the Indenture Trustee or any
other counsel reasonably acceptable to each of the Indenture Trustee [and the Insurer]) 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. Each Noteholder or Note Owner, by acceptance of a
Note, or, in the case of a Note Owner or a beneficial interest in a Note, by accepting the benefits
of this Agreement, covenants and agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes
or under this Indenture or any certificate or other writing delivered in connection herewith or
therewith, against (i) the Indenture Trustee or the Owner Trustee in their respective individual
capacities, (ii) any Residual Interestholder or any other owner of a beneficial interest in the
Issuer, (iii) the Servicer, the Administrator or the Seller or (iv) any partner, owner,
beneficiary, agent, officer, director, employee, successor or assign of any Person described in
clauses (i), (ii) and (iii) above, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for
stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
For all purposes of this Indenture, in the performance of any duties or




53









 







obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles Six, Seven and Eight of the Trust Agreement.




          SECTION 11.17. No Petition. Each of the Indenture Trustee, by entering into this
Indenture, and each Noteholder and Note Owner, by accepting a Note or, in the case of a Note Owner,
a beneficial interest in a Note, hereby covenants and agrees that prior to the date which is one
year and one day after payment in full of all obligations of each Bankruptcy Remote Party in
respect of all securities issued by the Bankruptcy Remote Parties, (i) such party shall not
authorize any Bankruptcy Remote Party to commence a voluntary winding-up or other voluntary case or
other proceeding seeking liquidation, reorganization or other relief with respect to such
Bankruptcy Remote Party or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect in any jurisdiction or seeking the appointment of an administrator, a trustee,
receiver, liquidator, custodian or other similar official with respect to such Bankruptcy Remote
Party or any substantial part of its property or to consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case or other proceeding
commenced against such Bankruptcy Remote Party, or to make a general assignment for the benefit of,
its creditors generally, any party hereto or any other creditor of such Bankruptcy Remote Party,
and (ii) none of the parties hereto shall commence, join or institute against, with any other
Person, any proceeding against such Bankruptcy Remote Party under any bankruptcy, reorganization,
arrangement, liquidation or insolvency law or statute now or hereafter in effect in any
jurisdiction.




          SECTION 11.18. Inspection. The Issuer agrees that, on reasonable prior notice, it
will permit any representative of the Indenture Trustee [or the Insurer], 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) or in
connection with litigation, and except to the extent that the Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.




          SECTION 11.19. Submission to Jurisdiction; Waiver of Jury Trial. Each of the parties
hereto hereby irrevocably and unconditionally:




          (a) submits for itself and its property in any legal action or proceeding relating to this
Agreement or any documents executed and delivered in connection herewith, or for recognition and
enforcement of any judgment in respect thereof, to the nonexclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for the Southern
District of New York and appellate courts from any thereof;




          (b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of such action or

54









 








proceeding in any such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;




          (c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Person at its address determined in accordance with Section 11.4 of this
Agreement;




          (d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and




          (e) to the extent permitted by applicable law, waives all right of trial by jury in any
action, proceeding or counterclaim based on, or arising out of, under or in connection with this
Indenture, any other Transaction Document, or any matter arising hereunder or thereunder.




          SECTION 11.20. Subordination of Claims. The Issuer’s obligations under this
Indenture are obligations solely of the Issuer and will not constitute a claim against the Seller
to the extent that the Issuer does not have funds sufficient to make payment of such obligations.
In furtherance of and not in derogation of the foregoing, each of the Owner Trustee (in its
individual capacity and as the Owner Trustee), by accepting the benefits of this agreement, a
Certificateholder, by accepting a Certificate, and Indenture Trustee (in its individual capacity
and as Indenture Trustee), by entering into this Indenture, and each Noteholder and each Note
Owner, by accepting the benefits of this Indenture, hereby acknowledges and agrees that such Person
has no right, title or interest in or to the Other Assets of the Seller. To the extent that,
notwithstanding the agreements and provisions contained in the preceding sentence, each of the
Owner Trustee, the Indenture Trustee, each Noteholder or Note Owner and any Certificateholder
either (i) asserts an interest or claim to, or benefit from, Other Assets, or (ii) is deemed to
have any such interest, claim to, or benefit in or from Other Assets, whether by operation of law,
legal process, pursuant to applicable provisions of insolvency laws or otherwise (including by
virtue of Section 1111(b) of the Bankruptcy Code or any successor provision having similar effect
under the Bankruptcy Code), then such Person further acknowledges and agrees that any such
interest, claim or benefit in or from Other Assets is and will be expressly subordinated to the
indefeasible payment in full, which, under the terms of the relevant documents relating to the
securitization or conveyance of such Other Assets, are entitled to be paid from, entitled to the
benefits of, or otherwise secured by such Other Assets (whether or not any such entitlement or
security interest is legally perfected or otherwise entitled to a priority of distributions or
application under applicable law, including insolvency laws, and whether or not asserted against
the Seller), including the payment of post-petition interest on such other obligations and
liabilities. This subordination agreement will be deemed a subordination agreement within the
meaning of Section 510(a) of the Bankruptcy Code. Each of the Indenture Trustee (in its individual
capacity and as the Indenture Trustee), by entering into or accepting this agreement, a
Certificateholder, by accepting a Certificate, and the Owner Trustee[, the Insurer,] and each
Noteholder or Note Owner, by accepting the benefits of this Indenture, hereby further acknowledges
and agrees that no adequate remedy at law exists for a breach of this Section and the terms of this
Section may be enforced by an action for specific performance. The provisions of this Section will
be for the third party benefit of those entitled to rely thereon and will survive the termination
of this Indenture.




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          SECTION 11.21. Maximum Interest Payable. The Issuer, the Indenture Trustee and the
Holders of the Notes specifically intend and agree to limit contractually the amount of interest
payable under this Indenture, the Notes and all other instruments and agreements related hereto and
thereto to the maximum amount of interest lawfully permitted to be charged under applicable law.
Therefore, none of the terms of this Indenture, the Notes or any instrument pertaining to or
relating to or executed in connection with this Indenture or the Notes shall ever be construed to
create a contract to pay interest (or amounts deemed to be interest under applicable law) at a rate
in excess of the maximum rate permitted to be charged under applicable law, and neither the Issuer
nor any other party liable or to become liable hereunder, under the Notes or under any other
instruments and agreements related hereto and thereto shall ever be liable for interest in excess
of the amount determined at such maximum rate, and the provisions of this Section shall control
over all other provisions of this Indenture, the Notes or any other instrument pertaining to or
relating to the transactions herein or therein contemplated. If any amount of interest taken or
received by the Indenture Trustee or any Holder of a Note shall be in excess of said maximum amount
of interest which, under applicable law, could lawfully have been collected by the Indenture
Trustee or such Holder incident to such transactions, then such excess shall be deemed to have been
the result of a mathematical error by all parties hereto and shall be automatically applied to the
reduction of the principal amount owing under the Notes or if such excessive interest exceeds the
unpaid principal balance of the Notes, such excess shall be refunded promptly by the Person
receiving such amount to the party paying such amount. All amounts paid or agreed to be paid in
connection with such transactions which would under applicable law be deemed “interest” shall, to
the extent permitted by such applicable law, be amortized, prorated, allocated and spread
throughout the stated term of the Indenture. “Applicable law” as used in this paragraph means that
law in effect from time to time which permits the charging and collection of the highest
permissible lawful, nonusurious rate of interest on the transactions herein contemplated including
laws of each State which may be held to be applicable and of the United States, and “maximum rate”
as used in this paragraph means, with respect to each of the Notes, the maximum lawful, nonusurious
rates of interest (if any) which under applicable law may be charged to the Issuer from time to
time with respect to such Notes.




          SECTION 11.22. No Legal Title in Holders. No Holder of a Note shall have legal
title to any part of the Trust Estate. No transfer, by operation of law or otherwise, of any Note
or other right, title and interest of any Holder of a Note in and to the Trust Estate or hereunder
shall operate to terminate this Indenture or the trusts hereunder or entitle any successor or
transferee of such Holder to an accounting or to the transfer to it of legal title to any part of
the Trust Estate.




          SECTION 11.23. Third Party Beneficiary. Subject to Section 5.6, the parties
hereto acknowledge and agree that [the Insurer and its successors and assigns and] the Noteholders
are express third party beneficiaries of this Indenture.




          SECTION 11.24. Information Requests. The parties hereto shall provide any
information available and deliverable without undue expense as requested by the Servicer, the
Issuer, the Seller or any of their Affiliates, in order to comply with or obtain more favorable
treatment under any current or future law, rule, regulation, accounting rule or principle.




[Remainder of Page Intentionally Left Blank]




56









 








          IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Indenture to be duly
executed by their respective officers, thereunto duly authorized, all as of the day and year first
above written.




	 	 	 	 	 
	 	 	DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]
	 
	 	 	 	 
	 

	 	By:
	 	[               ], not in its individual
	 

	 	 	 	capacity but solely as Owner Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	 	 	[                ], a [                
]organized under 

the laws of the United States, not
in its individual 

capacity but solely as the
Indenture Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






 









 





SCHEDULE I




NOTICE ADDRESSES




If to the Issuer:

Drive Auto Receivables Trust 200[ ]-[ ]

c/o [                      ]

[                      ]

[                      ]

Facsimile: [                      ]




If to Drive Consumer, the Servicer or the Administrator:

Attention: Drive Consumer USA Inc.

8585 North Stemmons Freeway

Suite 1100-N

Dallas, Texas 75247

Facsimile: [                      ]




If to the Seller:

Attention: Drive Auto Receivables LLC

8585 North Stemmons Freeway

Suite 1100-N

Dallas, Texas 75247

Facsimile: [                      ]




If to the Indenture Trustee:

[                      ]

[                      ]

Facsimile: [                      ]




If to the Owner Trustee:

[                      ]

[                      ]

[                      ]

Facsimile: [                      ]




If to Moody’s:

Moody’s Investors Service, Inc.

99 Church Street

New York, New York 10007

Facsimile: [                      ]




If to S&P:

Standard & Poor’s Ratings Services

25 Broadway

New York, New York 10004

Facsimile: [                      ]




 









 





[If to the Insurer:

                     ]




I-3









 





SCHEDULE II




PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS




          In addition to the representations, warranties and covenants contained in the Indenture, the
Issuer hereby represents, warrants, and covenants to the Indenture Trustee as follows on the
Closing Date and on each Funding Date:




General



1. This Indenture creates a valid and continuing security interest (as defined in the applicable
UCC) in the Contracts and the other Collateral in favor of the Indenture Trustee, which security
interest is prior to all other Liens, and is enforceable as such against creditors of and
purchasers from the Issuer.



2. Each Contract (A) constitutes “tangible chattel paper” or a “payment intangible,” each as
defined in the UCC and (B) if such Contract is “tangible chattel paper,” shall be maintained in its
original “tangible” form[, unless the Insurer has consented in writing to such chattel paper being
maintained in another form or medium].



3. Immediately prior to the sale, assignment and transfer thereof pursuant to the Sale and
Servicing Agreement, each Contract was secured by a validly perfected first priority security
interest in the Financed Vehicle for the benefit of the Originator as secured party or all
necessary and appropriate actions had been commenced (including the filing of the related
applications for certificates of title with the related department of motor vehicles) that would
result in the valid perfection of a first priority security interest in the Financed Vehicle in
favor of the Indenture Trustee for the benefit of the Originator as secured party. Immediately
after the sale, assignment and transfer thereof to the Issuer, although the related Certificates of
Title will not indicate the Issuer or Owner Trustee as secured party, each Contract will be secured
by an enforceable and perfected security interest in the Financed Vehicle in favor of the Indenture
Trustee which security interest is prior to all other Liens in such Financed Vehicle.



4. Each Trust Account constitutes either a “deposit account” or a “securities account” within the
meaning of the UCC.




Creation 



5. No Contract has been sold, transferred, assigned, or pledged by the Seller to any Person other
than the Issuer and the Indenture Trustee. Immediately prior to the transfer and assignment of
each Contract herein contemplated, the Seller had good and marketable title to such Contract free
and clear of all Liens and rights of others and, immediately upon the transfer thereof, the Issuer
shall have good and marketable title to such Contract, free and clear of all Liens and rights of
others other than the pledge to the Indenture Trustee; and each such transfer and pledge has been
perfected under the UCC.




 









 








Perfection 



6. All filings (including, without limitation, UCC filings) necessary in any jurisdiction to give
the Issuer and the Indenture Trustee a first priority perfected ownership interest in the Contracts
have been made, and all financing statements referenced in this paragraph shall contain a statement
that: “A purchase of or security interest in any collateral described in this financing statement
will violate the rights of the Secured Party”.



7. There is only one original executed copy of each Contract and such original has been delivered
to the Indenture Trustee. The Servicer has received from the Indenture Trustee a written
acknowledgment dated as of the Closing Date and each Funding Date, as applicable, confirming that
it has received and is in possession of the original of each Contract listed on the applicable
Schedule of Contracts.



8. With respect to the Trust Accounts that constitute deposit accounts, either:





(i) the Issuer has delivered to the Indenture Trustee a fully executed agreement pursuant to
which the bank maintaining the deposit accounts has agreed to comply with all instructions
originated by the Indenture Trustee directing disposition of the funds in such Trust
Accounts without further consent by the Issuer; or




(ii) the Issuer has taken all steps necessary to cause the Indenture Trustee to become the
account holder of such Trust Accounts.


9. With respect to the Trust Accounts that constitute securities accounts or securities
entitlements, either:





(i) the Issuer has delivered to the Indenture Trustee a fully executed agreement pursuant to
which the securities intermediary has agreed to comply with all instructions originated by
the Indenture Trustee relating to such Trust Accounts without further consent by the Issuer;
or




(ii) the Issuer has taken all steps necessary to cause the securities intermediary to
identify in its records the Indenture Trustee as the person having a security entitlement
against the securities intermediary in each of such Trust Accounts.



Priority



10. To the best of the Issuer’s knowledge, no liens or claims have been filed for work, labor,
materials, taxes or liens that arise out of operation of law relating to a Financed Vehicle that
are prior to, or equal or coordinate with, the security interest in the Financed Vehicle granted by
the Contract.



11. None of the instruments, tangible chattel paper or electronic chattel paper that constitute or
evidence the Contracts has any marks or notations indicating that they have been pledged, assigned
or otherwise conveyed to any Person other than the Issuer or the Indenture Trustee.




II-2 









 







12. No Trust Account that constitutes a securities account or securities entitlement is in the name
of any person other than the Issuer or the Indenture Trustee. The Issuer has not consented to the
securities intermediary of any such Trust Account to comply with entitlement orders of any person
other than the Indenture Trustee.



13. No Trust Account that constitutes a deposit account is in the name of any person other than the
Issuer or the Indenture Trustee. The Issuer has not consented to the bank maintaining such Trust
Account to comply with instructions of any person other than the Indenture Trustee.




Survival of Perfection Representations



14. Notwithstanding any other provision of this Indenture or any other Transaction Document, the
perfection representations, warranties and covenants contained in this Schedule II shall be
continuing, and remain in full force and effect until such time as all obligations under this
Indenture have been finally and fully paid and performed.




No Waiver



15. The parties to this Indenture shall provide the Rating Agencies with prompt written notice of
any breach of the perfection representations, warranties and covenants contained in this
Schedule II, and shall not, without satisfying the Rating Agency Condition, waive a breach
of any of such perfection representations, warranties or covenants.




Issuer to Maintain Perfection and Priority



16. The Issuer covenants that, in order to evidence the interests of the Indenture Trustee under
this Indenture, the Issuer shall take such action, or execute and deliver such instruments as may
be necessary or advisable (including, without limitation, such actions as are requested by the
Indenture Trustee) to maintain and perfect, as a first priority interest, the Indenture Trustee’s
security interest in the Contracts. The Issuer shall, from time to time and within the time limits
established by law, prepare and file, all financing statements, amendments, continuations, initial
financing statements in lieu of a continuation statement, terminations, partial terminations,
releases or partial releases, or any other filings necessary or advisable to continue, maintain and
perfect the Indenture Trustee’s security interest in the Contracts as a first-priority interest.





II-3 









 








FORMS OF NOTES




[Attached]




 









 





FORM OF

CLASS A-1 NOTE




	 	 	 
	 

	 	$
[•]1
	REGISTERED

	 	CUSIP NO.
	No. R-[•]

	 	ISIN.






          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.




DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]




[ ]% CLASS A-1 AUTO LOAN ASSET BACKED NOTE




          Drive Auto Receivables Trust 200[ ]-[ ], a statutory trust organized and existing under the
laws of the State of Delaware (including any successor, the “Issuer”), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of [•] DOLLARS
($[•]), in monthly installments on the 15th of each month, or if such day is not a Business Day, on
the immediately succeeding Business Day, commencing on [                      ] (each, a “Payment
Date”) until the principal of this Note is paid or made available for payment, and to pay
interest due and payable on each Payment Date on the Class A-1 Note Balance as of the preceding
Payment Date (after giving effect to all payments of principal made on the preceding Payment Date),
or as of the Closing Date in the case of the first Payment Date, at the rate per annum shown above
(the “Interest Rate”), in each case as and to the extent set forth in the Indenture and the
Sale and Servicing Agreement; provided, however, that the entire Class A-1 Note Balance shall be
due and payable on the earliest of the [                      ] Payment Date (the “Final Scheduled
Payment Date”), (ii) the Redemption Date, if any, pursuant to the Indenture and (iii) the date
the Notes are accelerated after an Event of Default pursuant to the Indenture. Interest on this
Note will accrue for each Payment Date from and including the preceding






 




			
	1	 	Denominations of $1,000 and integral multiples of
$1,000 in excess thereof.




 









 









Payment Date (or, in the case of the initial Payment Date, from and including 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] [a 360-day year of twelve 30-day months]. Such principal of and
interest on this Note shall be paid in the manner specified on the reverse hereof.




          The principal of and interest on this Note are payable in such coin or currency of the United
States as at the time of payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this Note.




          [This Note is entitled to the benefits of the Policy issued by the Insurer to the Indenture
Trustee for the benefit of the Noteholders.]




          Reference is made to the further provisions of this Note set forth on the reverse hereof,
which shall have the same effect as though fully set forth on the face of this Note.




          Unless the certificate of authentication hereon has been executed by the Indenture Trustee the
name of which appears below by manual signature, this Note shall not be entitled to any benefit
under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.




A-I-2 









 








          IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually, by its
Authorized Officer.




Dated:                     , 20[ ]




	 	 	 	 	 
	 	 	DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]
	 
	 	 	 	 
	 

	 	By:
	 	[                    ], not in its individual
	 

	 	 	 	capacity but solely as Owner Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





A-I-3 









 






INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION




     This is one of the Notes designated above and referred to in the within-mentioned Indenture.



Dated:                     , 20[ ]




	 	 	 	 	 
	 	 	[                     ], a [                     ] organized


under the laws of the United States, not in its


individual capacity but solely as Indenture Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory






A-I-4 









 





[REVERSE OF NOTE]




          This Note is one of a duly authorized issue of Notes of the Issuer, designated as its [
]% Class A-1 Auto Loan Asset-Backed Notes (herein called the “A-1 Notes” or the
“Notes”), all issued under an Indenture dated as of [                      ], 20[ ] (such
Indenture, as supplemented or amended, is herein called the “Indenture”), between the
Issuer and [                      ], a [                      ] organized under the
laws of the United States, not in its individual capacity but solely as trustee (the “Indenture
Trustee”), which term includes any successor Indenture Trustee under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the Indenture and the Sale and Servicing
Agreement. All terms used in this Note that are not otherwise defined herein and that are defined
in the Indenture or the Sale and Servicing Agreement, by and between the Issuer, Drive Auto
Receivables LLC (the “Seller”), Drive Consumer USA Inc. (the “Servicer”) and the
Indenture Trustee (such Sale and Servicing Agreement, as supplemented or amended, is herein called
the “Sale and Servicing Agreement”) shall have the meanings assigned to them in Appendix A
of the Sale and Servicing Agreement.




          The Class A Notes are and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture. All covenants and agreements made by the Issuer in
the Indenture are for the benefit of the Holders of the Class A Notes.




          Principal payable on the Notes will be paid on each Payment Date in the amount specified in
the Indenture and in the Sale and Servicing Agreement. As described above, that the entire Class
A-1 Note Balance shall be due and payable on the earliest of (i) the [                     ] Payment
Date (the “Final Scheduled Payment Date”), (ii) the Redemption Date, if any, pursuant to
the Indenture and (iii) the date the Notes are accelerated after an Event of Default pursuant to
the Indenture. All principal payments on the Class A-1 Notes shall be made pro rata to the Class
A-1 Noteholders entitled thereto.




          Payments of principal of and interest on this Note due and payable on each Payment Date,
Redemption Date or upon acceleration shall be made by check mailed to the Person whose name appears
as the registered Holder of this Note (or one or more Predecessor Notes) on the Note Register as of
the close of business on the related Record Date, except that with respect to Notes registered on
the Record Date in the name of the nominee of the Depository (initially, such nominee to be Cede &
Co.), payments will be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable Record Date without
requiring that this Note be submitted for notation of payment. Any reduction in the principal
amount of this Note (or any one or more Predecessor Notes) affected by any payments made on any
Payment Date or Redemption Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as provided in the Indenture,
for payment in full of the remaining unpaid principal amount of this Note on a Payment Date or
Redemption Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will
notify the Person who was the registered Holder hereof as of the Record Date preceding such Payment
Date or Redemption Date by notice


A-I-5 









 







mailed prior to such Payment Date or Redemption Date and the amount then due and payable shall
be payable only upon presentation and surrender of this Note at the Corporate Trust Office of the
Indenture Trustee or at the office of the Indenture Trustee’s agent appointed for such purposes
located in The City of New York.




          Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of a Note Owner, a
beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Seller, the Servicer, the Owner
Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other
writing delivered in connection herewith or therewith, against (i) the Seller, the Servicer, the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee
or agent of the Seller, the Servicer, the Indenture Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer, the Seller, the Servicer, the Owner
Trustee or the Indenture Trustee or of any successor or assign of the Seller, the Servicer, the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no
such obligations in their individual capacity) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity.




          It is the intent of the Seller, the Servicer, the Noteholders and the Note Owners that, for
purposes of federal and state income tax and any other tax measured in whole or in part by income,
the Notes will qualify as indebtedness of the Issuer. The Noteholders, by acceptance of a Note,
agree to treat, and to take no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Issuer.




          Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of a Note Owner, a
beneficial interest in a Note, covenants and agrees that, prior to the date which is one year and
one day after payment in full of all obligations of each Bankruptcy Remote Party in respect of all
securities issued by any Bankruptcy Remote Party (i) such party shall not authorize any Bankruptcy
Remote Party to commence a voluntary winding-up or other voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to such Bankruptcy Remote Party or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in effect in any
jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator,
custodian or other similar official with respect to such Bankruptcy Remote Party or any substantial
part of its property or to consent to any such relief or to the appointment of or taking possession
by any such official in any involuntary case or other proceeding commenced against such Bankruptcy
Remote Party, or to make a general assignment for the benefit of, its creditors generally, any
party hereto or any other creditor of such Bankruptcy Remote Party, and (ii) none of the parties
hereto shall commence or join with any other Person in commencing any proceeding against such
Bankruptcy Remote Party under any bankruptcy, reorganization, liquidation or insolvency law or
statute now or hereafter in effect in any jurisdiction.




A-I-6 









 








          This Note and the Indenture shall be construed in accordance with the laws of the State of New
York, without reference to its conflict of law provisions, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with such laws.




          No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the
principal of and interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.





A-I-7 









 








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:
	 
	 	 
	 	 	 
	 

	 	Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of
the Note Registrar, which requirements include
membership or participation in STAMP or such other
“signature guarantee program” as may be determined by
the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.








 




			
	*/	 	NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every particular without
alteration, enlargement or any change whatsoever.




A-I-8 









 










FORM OF

CLASS A-2 NOTE




	 	 	 
	 

	 	$[•]
	REGISTERED

	 	CUSIP NO.
	No. R-[•]

	 	ISIN.






          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.




DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]




[ ]% CLASS A-2 AUTO LOAN ASSET BACKED NOTE




          Drive Auto Receivables Trust 20[ ]-[ ], a statutory trust organized and existing under the
laws of the State of Delaware (including any successor, the “Issuer”), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of [•] DOLLARS
($[•]), in monthly installments on the 15th of each month, or if such day is not a Business Day, on
the immediately succeeding Business Day, commencing on [                      ] (each, a “Payment
Date”) until the principal of this Note is paid or made available for payment, and to pay
interest due and payable on each Payment Date on the Class A-2 Note Balance as of the preceding
Payment Date (after giving effect to all payments of principal made on the preceding Payment Date),
or as of the Closing Date in the case of the first Payment Date, at the rate per annum shown above
(the “Interest Rate”), in each case as and to the extent set forth in the Indenture and the
Sale and Servicing Agreement; provided, however, that the entire Class A-2 Note Balance shall be
due and payable on the earliest of (i) the [                      ] Payment Date (the “Final Scheduled
Payment Date”), (ii) the Redemption Date, if any, pursuant to the Indenture and (iii) the date
the Notes are accelerated after an Event of Default pursuant to the Indenture. Interest on this
Note will accrue for each Payment Date from and including the preceding Payment Date (or, in the
case of the initial Payment Date, from and including the Closing Date) to but excluding such
Payment Date. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
Such principal of and interest on this Note shall be paid in the manner specified on the reverse
hereof.




 









 








          The principal of and interest on this Note are payable in such coin or currency of the United
States as at the time of payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this Note.




          [This Note is entitled to the benefits of the Policy issued by the Insurer to the Indenture
Trustee for the benefit of the Noteholders.]




          Reference is made to the further provisions of this Note set forth on the reverse hereof,
which shall have the same effect as though fully set forth on the face of this Note.




          Unless the certificate of authentication hereon has been executed by the Indenture Trustee the
name of which appears below by manual signature, this Note shall not be entitled to any benefit
under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.




A-2-2 









 








          IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually, by its
Authorized Officer.




Dated:                     , 20[ ]




	 	 	 	 	 
	 	 	DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]
	 
	 	 	 	 
	 

	 	By:
	 	[                     ], not in its individual


capacity but solely as Owner Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





A-2-3 









 





INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION




          This is one of the Notes designated above and referred to in the within-mentioned Indenture.




Dated:                     , 20[ ]




	 	 	 	 	 
	 	 	[                    ], a [                      ] organized


under the laws of the United States, not in its


individual capacity but solely as Indenture Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory






A-2-4 









 





[REVERSE OF NOTE]




          This Note is one of a duly authorized issue of Notes of the Issuer, designated as its [ ]%
Class A-2 Auto Loan Asset-Backed Notes (herein called the “A-2 Notes” or the
“Notes”), all issued under an Indenture dated as of [                      ], 20[ ] (such
Indenture, as supplemented or amended, is herein called the “Indenture”), between the
Issuer and [                      ], a [                      ] organized under the
laws of the United States, not in its individual capacity but solely as trustee (the “Indenture
Trustee”), which term includes any successor Indenture Trustee under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the Indenture and the Sale and Servicing
Agreement. All terms used in this Note that are not otherwise defined herein and that are defined
in the Indenture or the Sale and Servicing Agreement, by and between the Issuer, Drive Auto
Receivables LLC (the “Seller”), Drive Consumer USA Inc. (the “Servicer”) and the
Indenture Trustee (such Sale and Servicing Agreement, as supplemented or amended, is herein called
the “Sale and Servicing Agreement”) shall have the meanings assigned to them in Appendix A
of the Sale and Servicing Agreement.




          The Class A Notes are and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture. All covenants and agreements made by the Issuer in
the Indenture are for the benefit of the Holders of the Class A Notes.




          Principal payable on the Notes will be paid on each Payment Date in the amount specified in
the Indenture and in the Sale and Servicing Agreement. As described above, that the entire Class
A-2 Note Balance shall be due and payable on the earliest of (i) the [                      ] Payment Date
(the “Final Scheduled Payment Date”), (ii) the Redemption Date, if any, pursuant to the
Indenture and (iii) the date the Notes are accelerated after an Event of Default pursuant to the
Indenture. All principal payments on the Class A-2 Notes shall be made pro rata to the Class A-2
Noteholders entitled thereto.




          Payments of principal of and interest on this Note due and payable on each Payment Date,
Redemption Date or upon acceleration shall be made by check mailed to the Person whose name appears
as the registered Holder of this Note (or one or more Predecessor Notes) on the Note Register as of
the close of business on the related Record Date, except that with respect to Notes registered on
the Record Date in the name of the nominee of the Depository (initially, such nominee to be Cede &
Co.), payments will be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable Record Date without
requiring that this Note be submitted for notation of payment. Any reduction in the principal
amount of this Note (or any one or more Predecessor Notes) affected by any payments made on any
Payment Date or Redemption Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as provided in the Indenture,
for payment in full of the remaining unpaid principal amount of this Note on a Payment Date or
Redemption Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will
notify the Person who was the registered Holder hereof as of the Record Date preceding such Payment
Date or Redemption Date by notice


A-2-5 









 







mailed prior to such Payment Date or Redemption Date and the amount then due and payable shall
be payable only upon presentation and surrender of this Note at the Corporate Trust Office of the
Indenture Trustee or at the office of the Indenture Trustee’s agent appointed for such purposes
located in The City of New York.




          Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of a Note Owner, a
beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Seller, the Servicer, the Owner
Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other
writing delivered in connection herewith or therewith, against (i) the Seller, the Servicer, the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee
or agent of the Seller, the Servicer, the Indenture Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer, the Seller, the Servicer the Owner
Trustee or the Indenture Trustee or of any successor or assign of the Seller, the Servicer, the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no
such obligations in their individual capacity) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity.




          It is the intent of the Seller, the Servicer, the Noteholders and the Note Owners that, for
purposes of federal and state income tax and any other tax measured in whole or in part by income,
the Notes will qualify as indebtedness of the Issuer. The Noteholders, by acceptance of a Note,
agree to treat, and to take no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Issuer.




          Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of a Note Owner, a
beneficial interest in a Note, covenants and agrees that prior to the date which is one year and
one day after payment in full of all obligations of each Bankruptcy Remote Party in respect of all
securities issued by any Bankruptcy Remote Party (i) such party shall not authorize any Bankruptcy
Remote Party to commence a voluntary winding-up or other voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to such Bankruptcy Remote Party or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in effect in any
jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator,
custodian or other similar official with respect to such Bankruptcy Remote Party or any substantial
part of its property or to consent to any such relief or to the appointment of or taking possession
by any such official in any involuntary case or other proceeding commenced against such Bankruptcy
Remote Party, or to make a general assignment for the benefit of, its creditors generally, any
party hereto or any other creditor of such Bankruptcy Remote Party, and (ii) none of the parties
hereto shall commence or join with any other Person in commencing any proceeding against such
Bankruptcy Remote Party under any bankruptcy, reorganization, liquidation or insolvency law or
statute now or hereafter in effect in any jurisdiction.




A-2-6 









 








          This Note and the Indenture shall be construed in accordance with the laws of the State of New
York, without reference to its conflict of law provisions, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with such laws.




          No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the
principal of and interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.




A-2-7 









 








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:
	 
	 	 
	 

	 	 
	 

	 	Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of
the Note Registrar, which requirements include
membership or participation in STAMP or such other
“signature guarantee program” as may be determined by
the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.








 




			
	*/	 	NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every particular without
alteration, enlargement or any change whatsoever.




A-2-8 









 










FORM OF

CLASS A-3 NOTE




	 	 	 
	 

	 	$[•]
	REGISTERED

	 	CUSIP NO.
	No. R-[•]

	 	ISIN.






          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.




DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]




[ ]% CLASS A-3 AUTO LOAN ASSET BACKED NOTE




          Drive Auto Receivables Trust 20[ ]-[ ], a statutory trust organized and existing under the
laws of the State of Delaware (including any successor, the “Issuer”), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of [•] DOLLARS
($[•]), in monthly installments on the 15th of each month, or if such day is not a Business Day, on
the immediately succeeding Business Day, commencing on [                      ] (each, a “Payment
Date”) until the principal of this Note is paid or made available for payment, and to pay
interest due and payable on each Payment Date on the Class A-3 Note Balance as of the preceding
Payment Date (after giving effect to all payments of principal made on the preceding Payment Date),
or as of the Closing Date in the case of the first Payment Date, at the rate per annum shown above
(the “Interest Rate”), in each case as and to the extent set forth in the Indenture and the
Sale and Servicing Agreement; provided, however, that the entire Class A-3 Note Balance shall be
due and payable on the earliest of the [                      ] Payment Date (the “Final Scheduled
Payment Date”), (ii) the Redemption Date, if any, pursuant to the Indenture and (iii) the date
the Notes are accelerated after an Event of Default pursuant to the Indenture. Interest on this
Note will accrue for each Payment Date from and including the preceding Payment Date (or, in the
case of the initial Payment Date, from and including the Closing Date) to but excluding such
Payment Date. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
Such principal of and interest on this Note shall be paid in the manner specified on the reverse
hereof.




 









 








          The principal of and interest on this Note are payable in such coin or currency of the United
States as at the time of payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this Note.




          [This Note is entitled to the benefits of the Policy issued by the Insurer to the Indenture
Trustee for the benefit of the Noteholders.]




          Reference is made to the further provisions of this Note set forth on the reverse hereof,
which shall have the same effect as though fully set forth on the face of this Note.




          Unless the certificate of authentication hereon has been executed by the Indenture Trustee the
name of which appears below by manual signature, this Note shall not be entitled to any benefit
under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.




A-3-2 









 








          IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually, by its
Authorized Officer.




Dated:                     , 20[ ]




	 	 	 	 	 
	 	 	DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]
	 
	 	 	 	 
	 

	 	By:
	 	[                    ], not in its individual

capacity but solely as Owner Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





A-3-3 









 






INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION




          This is one of the Notes designated above and referred to in the within-mentioned Indenture.




Dated:                     , 20[ ]




	 	 	 	 	 
	 	 	[                     ], a [                     ] organized


under the laws of the United States, not in its


individual capacity but solely as Indenture Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory






A-3-4 









 






[REVERSE OF NOTE]




          This Note is one of a duly authorized issue of Notes of the Issuer, designated as its [ ]%
Class A-3 Auto Loan Asset-Backed Notes (herein called the “A-3 Notes” or the
“Notes”), all issued under an Indenture dated as of [                      ], 20[ ] (such
Indenture, as supplemented or amended, is herein called the “Indenture”), between the
Issuer and [                      ], a [                      ] organized under the
laws of the United States, not in its individual capacity but solely as trustee (the “Indenture
Trustee”), which term includes any successor Indenture Trustee under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the Indenture and the Sale and Servicing
Agreement. All terms used in this Note that are not otherwise defined herein and that are defined
in the Indenture or the Sale and Servicing Agreement, by and between the Issuer, Drive Auto
Receivables LLC (the “Seller”), Drive Consumer USA Inc. (the “Servicer”) and the
Indenture Trustee (such Sale and Servicing Agreement, as supplemented or amended, is herein called
the “Sale and Servicing Agreement”) shall have the meanings assigned to them in Appendix A
of the Sale and Servicing Agreement.




          The Class A Notes are and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture. All covenants and agreements made by the Issuer in
the Indenture are for the benefit of the Holders of the Class A Notes.




          Principal payable on the Notes will be paid on each Payment Date in the amount specified in
the Indenture and in the Sale and Servicing Agreement. As described above, that the entire Class
A-3 Note Balance shall be due and payable on the earliest of (i) the [ ] Payment Date
(the “Final Scheduled Payment Date”), (ii) the Redemption Date, if any, pursuant to the
Indenture and (iii) the date the Notes are accelerated after an Event of Default pursuant to the
Indenture. All principal payments on the Class A-3 Notes shall be made pro rata to the Class A-3
Noteholders entitled thereto.




          Payments of principal of and interest on this Note due and payable on each Payment Date,
Redemption Date or upon acceleration shall be made by check mailed to the Person whose name appears
as the registered Holder of this Note (or one or more Predecessor Notes) on the Note Register as of
the close of business on the related Record Date, except that with respect to Notes registered on
the Record Date in the name of the nominee of the Depository (initially, such nominee to be Cede &
Co.), payments will be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable Record Date without
requiring that this Note be submitted for notation of payment. Any reduction in the principal
amount of this Note (or any one or more Predecessor Notes) affected by any payments made on any
Payment Date or Redemption Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as provided in the Indenture,
for payment in full of the remaining unpaid principal amount of this Note on a Payment Date or
Redemption Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will
notify the Person who was the registered Holder hereof as of the Record Date preceding such Payment
Date or Redemption Date by notice

A-3-5 









 








mailed prior to such Payment Date or Redemption Date and the amount then due and payable shall
be payable only upon presentation and surrender of this Note at the Corporate Trust Office of the
Indenture Trustee or at the office of the Indenture Trustee’s agent appointed for such purposes
located in The City of New York.




          Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of a Note Owner, a
beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Seller, the Servicer, the Owner
Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other
writing delivered in connection herewith or therewith, against (i) the Seller, the Servicer, the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee
or agent of the Seller, the Servicer, the Indenture Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer, the Seller, the Servicer, the Owner
Trustee or the Indenture Trustee or of any successor or assign of the Seller, the Servicer, the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no
such obligations in their individual capacity) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity.




          It is the intent of the Seller, the Servicer, the Noteholders and the Note Owners that, for
purposes of federal and state income tax and any other tax measured in whole or in part by income,
the Notes will qualify as indebtedness of the Issuer. The Noteholders, by acceptance of a Note,
agree to treat, and to take no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Issuer.




          Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of a Note Owner, a
beneficial interest in a Note, covenants and agrees that, prior to the date which is one year and
one day after payment in full of all obligations of each Bankruptcy Remote Party in respect of all
securities issued by any Bankruptcy Remote Party (i) such party shall not authorize any Bankruptcy
Remote Party to commence a voluntary winding-up or other voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to such Bankruptcy Remote Party or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in effect in any
jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator,
custodian or other similar official with respect to such Bankruptcy Remote Party or any substantial
part of its property or to consent to any such relief or to the appointment of or taking possession
by any such official in any involuntary case or other proceeding commenced against such Bankruptcy
Remote Party, or to make a general assignment for the benefit of, its creditors generally, any
party hereto or any other creditor of such Bankruptcy Remote Party, and (ii) none of the parties
hereto shall commence or join with any other Person in commencing any proceeding against such
Bankruptcy Remote Party under any bankruptcy, reorganization, liquidation or insolvency law or
statute now or hereafter in effect in any jurisdiction.




A-3-6 









 








          This Note and the Indenture shall be construed in accordance with the laws of the State of New
York, without reference to its conflict of law provisions, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with such laws.




          No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the
principal of and interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.




A-3-7 









 








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:
	 
	 	 
	 	 	 
	 

	 	Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of
the Note Registrar, which requirements include
membership or participation in STAMP or such other
“signature guarantee program” as may be determined by
the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.








 




			
	*/ 	 	NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every particular without
alteration, enlargement or any change whatsoever.




A-3-8 









 










FORM OF

CLASS A-4 NOTE




	 	 	 
	 

	 	$[•]
	REGISTERED

	 	CUSIP NO.
	No. R-[•]

	 	ISIN.






          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.




DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]




[       ]% CLASS A-4 AUTO LOAN ASSET BACKED NOTE




          Drive Auto Receivables Trust 20[ ]-[ ], a statutory trust organized and existing under the
laws of the State of Delaware (including any successor, the “Issuer”), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of [•] DOLLARS
($[•]), in monthly installments on the 15th of each month, or if such day is not a Business Day, on
the immediately succeeding Business Day, commencing on [                      ] (each, a “Payment
Date”) until the principal of this Note is paid or made available for payment, and to pay
interest due and payable on each Payment Date on the Class A-4 Note Balance as of the preceding
Payment Date (after giving effect to all payments of principal made on the preceding Payment Date),
or as of the Closing Date in the case of the first Payment Date, at the rate per annum shown above
(the “Interest Rate”), in each case as and to the extent set forth in the Indenture and the
Sale and Servicing Agreement; provided, however, that the entire Class A-4 Note Balance shall be
due and payable on the earliest of the [                      ] Payment Date (the “Final Scheduled
Payment Date”), (ii) the Redemption Date, if any, pursuant to the Indenture and (iii) the date
the Notes are accelerated after an Event of Default pursuant to the Indenture. Interest on this
Note will accrue for each Payment Date from and including the preceding Payment Date (or, in the
case of the initial Payment Date, from and including 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 Note shall be paid in the manner specified on the reverse
hereof.




 









 








          The principal of and interest on this Note are payable in such coin or currency of the United
States as at the time of payment is legal tender for payment of public and private debts. All
payments made by the Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this Note.




          [This Note is entitled to the benefits of the Policy issued by the Insurer to the Indenture
Trustee for the benefit of the Noteholders.]




          Reference is made to the further provisions of this Note set forth on the reverse hereof,
which shall have the same effect as though fully set forth on the face of this Note.




          Unless the certificate of authentication hereon has been executed by the Indenture Trustee the
name of which appears below by manual signature, this Note shall not be entitled to any benefit
under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.




A-4-2 









 








          IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually, by its
Authorized Officer.




Dated:                     , 20[ ]




	 	 	 	 	 
	 	 	DRIVE AUTO RECEIVABLES TRUST 20[ ]-[ ]
	 
	 	 	 	 
	 

	 	By:
	 	[                    ], not in its individual

capacity but solely as Owner Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





A-4-3 









 






INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION




          This is one of the Notes designated above and referred to in the within-mentioned Indenture.




Dated:                     , 20[ ]




	 	 	 	 	 
	 	 	[                      ]; a [                      ] organized


under the laws of the United States, not in
its 

individual capacity but solely as Indenture Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory






A-4-4 









 






[REVERSE OF NOTE]




          This Note is one of a duly authorized issue of Notes of the Issuer, designated as its [
]% Class A-4 Auto Loan Asset-Backed Notes (herein called the “A-4 Notes” or the
“Notes”), all issued under an Indenture dated as of [                      ], 20[ ] (such
Indenture, as supplemented or amended, is herein called the “Indenture”), between the
Issuer and [                      ], a [                      ] organized under the
laws of the United States, not in its individual capacity but solely as trustee (the “Indenture
Trustee”), which term includes any successor Indenture Trustee under the Indenture, to which
Indenture and all indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Noteholders. The Notes are subject to all terms of the Indenture and the Sale and Servicing
Agreement. All terms used in this Note that are not otherwise defined herein and that are defined
in the Indenture or the Sale and Servicing Agreement, by and between the Issuer, Drive Auto
Receivables LLC (the “Seller”), Drive Consumer USA Inc. (the “Servicer”) and the
Indenture Trustee (such Sale and Servicing Agreement, as supplemented or amended, is herein called
the “Sale and Servicing Agreement”) shall have the meanings assigned to them in Appendix A
of the Sale and Servicing Agreement.




          The Class A Notes are and will be equally and ratably secured by the collateral pledged as
security therefor as provided in the Indenture. All covenants and agreements made by the Issuer in
the Indenture are for the benefit of the Holders of the Class A Notes.




          Principal payable on the Notes will be paid on each Payment Date in the amount specified in
the Indenture and in the Sale and Servicing Agreement. As described above, that the entire Class
A-4 Note Balance shall be due and payable on the earliest of (i) the [ ] Payment Date
(the “Final Scheduled Payment Date”), (ii) the Redemption Date, if any, pursuant to the
Indenture and (iii) the date the Notes are accelerated after an Event of Default pursuant to the
Indenture. All principal payments on the Class A-4 Notes shall be made pro rata to the Class A-4
Noteholders entitled thereto.




          Payments of principal of and interest on this Note due and payable on each Payment Date,
Redemption Date or upon acceleration shall be made by check mailed to the Person whose name appears
as the registered Holder of this Note (or one or more Predecessor Notes) on the Note Register as of
the close of business on the related Record Date, except that with respect to Notes registered on
the Record Date in the name of the nominee of the Depository (initially, such nominee to be Cede &
Co.), payments will be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable Record Date without
requiring that this Note be submitted for notation of payment. Any reduction in the principal
amount of this Note (or any one or more Predecessor Notes) affected by any payments made on any
Payment Date or Redemption Date shall be binding upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted hereon. If funds are expected to be available, as provided in the Indenture,
for payment in full of the remaining unpaid principal amount of this Note on a Payment Date or
Redemption Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will
notify the Person who was the registered Holder hereof as of the Record Date preceding such Payment
Date or Redemption Date by notice

A-4-5 









 








mailed prior to such Payment Date or Redemption Date and the amount then due and payable shall
be payable only upon presentation and surrender of this Note at the Corporate Trust Office of the
Indenture Trustee or at the office of the Indenture Trustee’s agent appointed for such purposes
located in The City of New York.




          Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of a Note Owner, a
beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Seller, the Servicer, the Owner
Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other
writing delivered in connection herewith or therewith, against (i) the Seller, the Servicer, the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee
or agent of the Seller, the Servicer, the Indenture Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer, the Seller, the Servicer, the Owner
Trustee or the Indenture Trustee or of any successor or assign of the Seller, the Servicer, the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no
such obligations in their individual capacity) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity.




          It is the intent of the Seller, the Servicer, the Noteholders and the Note Owners that, for
purposes of federal and state income tax and any other tax measured in whole or in part by income,
the Notes will qualify as indebtedness of the Issuer. The Noteholders, by acceptance of a Note,
agree to treat, and to take no action inconsistent with the treatment of, the Notes for such tax
purposes as indebtedness of the Issuer.




          Each Noteholder or Note Owner, by acceptance of a Note, or, in the case of a Note Owner, a
beneficial interest in a Note, covenants and agrees that, prior to the date which is one year and
one day after payment in full of all obligations of each Bankruptcy Remote Party in respect of all
securities issued by any Bankruptcy Remote Party (i) such party shall not authorize any Bankruptcy
Remote Party to commence a voluntary winding-up or other voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to such Bankruptcy Remote Party or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in effect in any
jurisdiction or seeking the appointment of an administrator, a trustee, receiver, liquidator,
custodian or other similar official with respect to such Bankruptcy Remote Party or any substantial
part of its property or to consent to any such relief or to the appointment of or taking possession
by any such official in any involuntary case or other proceeding commenced against such Bankruptcy
Remote Party, or to make a general assignment for the benefit of, its creditors generally, any
party hereto or any other creditor of such Bankruptcy Remote Party, and (ii) none of the parties
hereto shall commence or join with any other Person in commencing any proceeding against such
Bankruptcy Remote Party under any bankruptcy, reorganization, liquidation or insolvency law or
statute now or hereafter in effect in any jurisdiction.




A-4-6 









 








          This Note and the Indenture shall be construed in accordance with the laws of the State of New
York, without reference to its conflict of law provisions, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with such laws.




          No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the
principal of and interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.




A-4-7 









 








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:
	 
	 	 
	 	 	 
	 

	 	Signatures must be guaranteed by an “eligible
guarantor institution” meeting the requirements of
the Note Registrar, which requirements include
membership or participation in STAMP or such other
“signature guarantee program” as may be determined by
the Note Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.








 




			
	*/	 	NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every particular without
alteration, enlargement or any change whatsoever.






A-4-8