**Exhibit 10.115**

 

**EXECUTION COPY**

 

 

 

FIRST INVESTORS AUTO OWNER TRUST 2005-AAs Issuer,

 

WELLS FARGO BANK, NATIONAL ASSOCIATIONAs Indenture Trustee and Custodian

 

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INDENTURE

Dated as of May 5, 2005

 

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$69,000,000 3.57% Class A-1 Asset-Backed Notes

$106,493,000 4.23% Class A-2 Asset-Backed Notes

$5,427,618.68 Class B Asset-Backed Notes

 

 

 

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**TABLE OF CONTENTS**

 
| Article I     | Definitions                                          |   |
|--------------------|------------------------------------------------------|--------|
| Section 1.1.  | Definitions                                          |   |
| Section 1.2.  | Rules of  Construction                          |   |
| Article II    | The  Notes                                           |   |
| Section 2.1.  | Form                                                 |   |
| Section 2.2.  | Execution,  Authentication and Delivery              |   |
| Section 2.3.  | Temporary  Class A Notes                        |   |
| Section 2.4.  | Tax  Treatment                                       |   |
| Section 2.5.  | Registration;  Registration of Transfer and Exchange |   |
| Section 2.6.  | Mutilated,  Destroyed, Lost or Stolen Notes          |   |
| Section 2.7.  | Persons  Deemed Owners                               |   |
| Section 2.8.  | Payments  of Interest and Principal                  |   |
| Section 2.9.  | Cancellation                                         |   |
| Section 2.10. | Release  of Collateral                               |   |
| Section 2.11. | Book-Entry                                           |   |
| Section 2.12. | Notices  to Clearing Agency                          |   |
| Section 2.13. | Definitive  Notes                                    |   |
| Section 2.14. | Authenticating  Agents                               |   |
| Section 2.15. | Restrictions  on Transfers of Class A Notes     |   |
| Section 2.16. | Restrictions  on Transfers of Class B Notes     |   |
| Article III   | Covenants                                            |   |
| Section 3.1.  | Payment Covenant                                     |   |
| Section 3.2.  | Maintenance  of Office or Agency                     |   |
| Section 3.3.  | Money  for Payments to be Held in Trust              |   |
| Section 3.4.  | Existence                                            |   |
| Section 3.5.  | Protection  of Trust Estate                          |   |
| Section 3.6.  | Opinions as to Trust Estate                          |   |
| Section 3.7.  | Performance of Obligations                           |   |
| Section 3.8.  | Negative Covenants                                   |   |
|                    |                                                      |        |  |

 

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| Section 3.9.  | Annual Statement as to Compliance                                          |   |
|--------------------|----------------------------------------------------------------------------|--------|
| Section 3.10. | Issuer May Not Merge                                                  |   |
| Section 3.11. | [Reserved]                                                                 |   |
| Section 3.12. | Successor                                                                  |   |
| Section 3.13. | Servicer’s Obligation                                                 |   |
| Section 3.14. | Guarantees, Loans, Advances and Other  Liabilities                         |   |
| Section 3.15. | Capital Expenditures                                                       |   |
| Section 3.16. | Restricted Payments                                                        |   |
| Section 3.17. | Notice of Events of Default                                                |   |
| Section 3.18. | Removal of Administrator                                                   |   |
| Section 3.19. | Further Instruments and Acts                                               |   |
| Section 3.20. | Rule 144A Information                                                 |   |
| Section 3.21. | Perfection Representations, Warranties  and Covenants                      |   |
| Article IV    | Satisfaction and Discharge                                                 |   |
| Section 4.1.  | Satisfaction and Discharge of Indenture                                    |   |
| Section 4.2.  | Satisfaction, Discharge and Defeasance  of the Notes                       |   |
| Section 4.3.  | Application of Trust Money                                                 |   |
| Section 4.4.  | Repayment of Monies Held by Paying Agent                                   |   |
| Section 4.5.  | Continuing Obligations of Indenture  Trustee                               |   |
| Article V     | Remedies                                                                   |   |
| Section 5.1.  | Events of Default                                                          |   |
| Section 5.2.  | Acceleration of Maturity; Rescission and  Annulment                        |   |
| Section 5.3.  | Collection of Indebtedness and Suits for  Enforcement by Indenture Trustee |   |
| Section 5.4.  | Remedies                                                                   |   |
| Section 5.5.  | Optional Preservation of the Contracts                                     |   |
| Section 5.6.  | Limitation of Suits                                                        |   |
| Section 5.7.  | Unconditional Rights of Noteholders to  Receive Principal and Interest     |   |
| Section 5.8.  | Restoration of Rights and Remedies                                         |   |
| Section 5.9.  | Rights and Remedies Cumulative Rights                                      |   |
| Section 5.10. | Delay or Omission Not a Waiver                                             |   |
| Section 5.11. | Control by Noteholders                                                     |   |
|                    |                                                                            |        |  |

 

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| Section 5.12. | Waiver of Past Defaults                                                 |   |
|--------------------|-------------------------------------------------------------------------|--------|
| Section 5.13. | Undertaking for Costs                                                   |   |
| Section 5.14. | Waiver of Stay or Extension Laws                                        |   |
| Section 5.15. | Action on Notes                                                         |   |
| Section 5.16. | Performance and Enforcement of Certain  Obligations                     |   |
| Article VI    | The Indenture Trustee                                                   |   |
| Section 6.1.  | Duties of Indenture Trustee                                             |   |
| Section 6.2.  | Rights of Indenture Trustee                                             |   |
| Section 6.3.  | Individual Rights of Indenture Trustee                                  |   |
| Section 6.4.  | Indenture Trustee’s Disclaimer                                     |   |
| Section 6.5.  | Notice of Default                                                       |   |
| Section 6.6.  | Reports by Indenture Trustee to Holders                                 |   |
| Section 6.7.  | Compensation and Indemnity                                              |   |
| Section 6.8.  | Replacement of Indenture Trustee                                        |   |
| Section 6.9.  | Successor Indenture Trustee                                             |   |
| Section 6.10. | Eligibility; Disqualification                                           |   |
| Article VI-A  |                                                                    |   |
| Section 6A.1  | Possession of Contract Files by the  Custodian.                         |   |
| Section 6A.2  | Release of Contract Files by the  Custodian.                            |   |
| Section 6A.3  | Regarding the Custodian.                                                |   |
| Article VII   | Noteholders’ Lists and Reports                                     |   |
| Section 7.1.  | Issuer to Furnish Indenture Trustee  Names and Addresses of Noteholders |   |
| Section 7.2.  | Preservation of Information;  Communications to Noteholders             |   |
| Section 7.3.  | Fiscal Year                                                             |   |
| Article VIII  | Accounts, Disbursements and Releases                                    |   |
| Section 8.1.  | Collection of Money Collection                                          |   |
| Section 8.2.  | Trust Accounts                                                          |   |
| Section 8.3.  | General Provisions Regarding Accounts                                   |   |
| Section 8.4.  | Release of Trust Estate                                                 |   |
| Section 8.5.  | Opinion of Counsel                                                      |   |
| Article IX    | Supplemental Indentures                                                 |   |
| Section 9.1.  | Supplemental Indentures Without Consent  of Noteholders                 |   |
|                    |                                                                         |        |  |

 

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| Section 9.2.   | Supplemental Indentures with Consent of  Noteholders   |   |
|---------------------|--------------------------------------------------------|--------|
| Section 9.3.   | Execution of Supplemental Indentures                   |   |
| Section 9.4.   | Effect of Supplemental Indenture                       |   |
| Section 9.5.   | Reference in Notes to Supplemental  Indentures         |   |
| Article X      | Redemption of Notes                                    |   |
| Section 10.1.  | Redemption                                             |   |
| Section 10.2.  | Form of Redemption Notice                         |   |
| Section 10.3.  | Notes Payable on Redemption Date                       |   |
| Article XI     | Miscellaneous                                          |   |
| Section 11.1.  | Compliance Certificates and Opinions,  etc             |   |
| Section 11.2.  | Form of Documents Delivered to  Indenture Trustee |   |
| Section 11.3.  | Acts of Noteholders                                    |   |
| Section 11.4.  | Notices, etc. to Indenture Trustee                     |   |
| Section 11.5.  | Notices to Noteholders; Waiver Notices  to Noteholders |   |
| Section 11.6.  | Alternate Payment and Notice Provisions                |   |
| Section 11.7.  | Effect of Headings and Table of  Contents              |   |
| Section 11.8.  | Successors and Assigns                                 |   |
| Section 11.9.  | Severability                                           |   |
| Section 11.10. | Benefits of Indenture                                  |   |
| Section 11.11. | Legal Holiday                                          |   |
| Section 11.12. | Governing Law                                          |   |
| Section 11.13. | Counterparts                                           |   |
| Section 11.14. | Recording of Indenture                                 |   |
| Section 11.15. | Trust Obligation                                       |   |
| Section 11.16. | No Petition                                            |   |
| Section 11.17. | Inspection                                             |   |
| Section 11.18. | Certain Matters Regarding the Insurer                  |   |
| Section 11.19. | Acknowledgment of Multiple Roles                       |   |
|                     |                                                        |        |  |

 

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| Schedules        |                                                  |   |
|------------------|-------------------------------------------------------|--------|
|             |                                                  |   |
| Schedule A  | Perfection Representations, Warranties and  Covenants |   |
|             |                                                  |   |
| Exhibits         |                                                  |   |
|             |                                                  |   |
| Exhibit A-1 | Form of Class A-1 Notes                     |   |
| Exhibit A-2 | Form of Class A-2 Notes                     |   |
| Exhibit B   | Form of Class B Notes                       |   |
| Exhibit C   | [Reserved]                                            |   |
| Exhibit D   | Request for Release of Contract                       |   |

 

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INDENTURE, dated as of May 5,2005 (as amended, supplemented or otherwise modified and in effect from time totime, this “*Indenture*”), between FIRSTINVESTORS AUTO OWNER TRUST 2005-A, a Delaware statutory trust (the “*Issuer*”), and WELLS FARGO BANK,NATIONAL ASSOCIATION, a national banking association, not in its individualcapacity but solely as indenture trustee and as custodian (in such capacities,the “*Indenture Trustee*” and the “*Custodian*”).

 

Each party agrees asfollows for the benefit of the other party and for the benefit of theNoteholders:

 

**GRANTINGCLAUSE**

 

The Issuer hereby Grantsto the Indenture Trustee on the Closing Date, for the benefit of theNoteholders and the Insurer, all of the Issuer’s right, title and interest in,to and under, whether now owned or existing or hereafter acquired orarising:  (i) the Contracts listedin the Contract Schedule as of the Closing Date (the “Initial Contracts”)and the Additional Contracts; (ii) all amounts received on or in respectof the Contracts after the applicable Cutoff Dates (except interest receivedwhich accrued before such Cutoff Dates); (iii) the security interests inthe Financed Vehicles granted by the Obligors pursuant to the Contracts; (iv) allproceeds from claims on or refunds of premiums with respect to any physicaldamage, credit life or credit disability insurance policies covering theFinanced Vehicles or the Obligors; (v) any Liquidation Proceeds; (vi) allof the Issuer’s rights to the Contract Files; (vii) the CollectionAccount, the Reserve Account, the Prefunding Account, the Class A NotePayment Account and the Class B Note Payment Account and all amounts,securities, financial assets, investments and other property deposited in orcredited to any of the foregoing and all proceeds thereof; (viii) all ofthe Issuer’s rights under the Sale and Allocation Agreement, the ContributionAgreement and the Servicing Agreement, including the right of the Issuer tocause the Depositor, Seller or the Servicer, as applicable, to repurchaseContracts from the Issuer; and (ix) all present and future claims,demands, causes of action and choses in action in respect of any or all of theforegoing and all payments on or under and all proceeds of every kind andnature whatsoever in respect of any or all of the foregoing, including allproceeds of the conversion thereof, voluntary or involuntary, into cash orother liquid property, all cash proceeds, accounts, accounts receivable, notes,drafts, acceptances, chattel paper, checks, deposit accounts, insuranceproceeds, condemnation awards, rights to payment of any and every kind andother forms of obligations and receivables, instruments and other propertywhich at any time constitute all or part of or are included in the proceeds ofany of the foregoing (collectively, the “*Collateral*”).

 

The foregoing Grant ismade in trust to secure the payment of principal of and interest on, and anyother amounts owing in respect of, the Notes, equally and ratably withoutprejudice, priority or distinction, and to secure compliance with theprovisions of this Indenture, all as provided in this Indenture.

 

The Indenture Trustee, asIndenture Trustee on behalf of the Noteholders, acknowledges such Grant,accepts the trusts under this Indenture in accordance with the provisions ofthis Indenture and agrees to perform its duties required in this Indenture tothe best of its ability to the 

 

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end that theinterests of the Noteholders and the Insurer may be adequately and effectivelyprotected.

 

**Article IDefinitions**

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**Section 1.1.**                                Definitions.

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(a)                                  Exceptas otherwise specified herein or as the context may otherwise require, thefollowing terms shall have the respective meanings set forth below for allpurposes of this Indenture.

 

Act:  As defined in Section 11.3(a).

 

Administration Agreement:  The Administration Agreement, dated as of thedate hereof, by and among the Administrator, the Issuer and the IndentureTrustee, as the same may from time to time be amended, supplemented orotherwise modified and in effect.

 

Administrator:  First Investors or any successorAdministrator under the Administration Agreement.

 

Authenticating Agent:  As defined in Section 2.14.

 

Authorized Officer:  With respect to the Issuer, any officer ofthe Owner Trustee who is authorized to act for or on behalf of the OwnerTrustee in matters relating to the Issuer and who is identified on the list ofAuthorized Officers delivered by the Owner Trustee to the Indenture Trustee onthe Closing Date (as such list may be modified or supplemented from time totime thereafter) and, for so long as the Administration Agreement is in fullforce and effect, any officer of the Administrator who is authorized to act forthe Administrator in matters relating to the Issuer and to be acted upon by theAdministrator pursuant to the Administration Agreement.

 

Book-Entry Notes:  A beneficial interest in the Class ANotes, ownership and transfers of which shall be made through book entries by aClearing Agency as described in Section 2.11.

 

Certificate of Trust:  As defined in the Trust Agreement.

 

Certificate Registrar:  As defined in the Trust Agreement.

 

Class:  Any class of Notes of the Issuer.

 

Class A Holderor Class A Noteholder:  ThePerson in whose name a Class A Note is registered in the Note Register.

 

Class A Notes:  Collectively, the Class A-1 Notes andthe Class A-2 Notes.

 

Class A-1 Notes:The Class A-1 Asset-Backed Notes issued by the Issuer pursuant to thisIndenture in the initial aggregate principal amount of $69,000,000.

 

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Class A-2 Notes:The Class A-2 Asset-Backed Notes issued by the Issuer pursuant to thisIndenture in the initial aggregate principal amount of $106,493,000.

 

Class A Note PaymentAccount:  As defined inthe Sale and Allocation Agreement.

 

Class B Holder or Class BNoteholder:  The Personin whose name a Class B Note is registered in the Note Register.

 

Class B Notes:  The Class B Asset-Backed Notes issued bythe Issuer pursuant to this Indenture in the initial aggregate principal amountof $5,427,618.68.

 

Clearing Agency:  An organization registered as a “clearingagency” pursuant to Section 17A of the Exchange Act.

 

Clearing AgencyParticipant:  A broker,dealer, bank, other financial institution or other Person for whom from time totime a Clearing Agency effects book-entry transfers and pledges of securitiesdeposited with the Clearing Agency.

 

Closing Date:  May 5, 2005.

 

Code:  The Internal Revenue Code of 1986, as amendedfrom time to time, and the Treasury Regulations promulgated thereunder.

 

Collateral:  As defined in the Granting Clause ofthis Indenture.

 

Commission:  The Securities and Exchange Commission.

 

Custodian:  Wells Fargo Bank, National Association, notin its individual capacity but solely as custodian, as specified herein.

 

Default:  Any event that, with notice or the lapse oftime or both, would become an Event of Default.

 

Definitive Notes:  As defined in Section 2.11.

 

Depositor:  As defined in the Trust Agreement.

 

Depositor Account:  As defined in the Trust Agreement.

 

Event of Default:  As defined in Section 5.1.

 

Excess Prefunding Amount:  The funds, if any, remaining in thePrefunding Account on the Prefunding Account Ending Date.

 

Exchange Act:  The Securities Exchange Act of 1934, asamended.

 

Executive Officer:  With respect to any corporation, the ChiefExecutive Officer, the Chief Operating Officer, the Chief Financial Officer,the President, any Executive Vice President, any 

 

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Senior Vice President,any Vice President, the Secretary or the Treasurer of such corporation and withrespect to any partnership, any general partner of such partnership.

 

File Numbers:  As defined Section 6A.1(f).

 

File Number List:  As defined in Section 6A.1(f).

 

Final Note Payment Date:  With respect to the Class A-1 Notes, December 17,2007, with respect to the to the Class A-2 Notes, July 16, 2012 andwith respect to the Class B Notes, July 16, 2012.

 

First Investors:  First Investors Financial Services, Inc.

 

FISC:  First Investors Servicing Corporation,together with its successors and assigns.

 

Fiscal Year:  The period commencing on May 1 of eachcalendar year and ending on April 30 of the following year.

 

Grant:  To mortgage, pledge, bargain, sell, warrant,alienate, remise, release, convey, assign, transfer, create, and to grant alien upon and a security interest in and right of set-off against, and todeposit, set over and confirm pursuant to this Indenture.  A Grant of the Collateral or of any otheragreement or instrument shall include all rights, powers and options (but noneof the obligations) of the granting party thereunder, including the immediateand continuing right to claim for, collect, receive and give receipt forprincipal and interest payments in respect of the Collateral and all othermonies payable thereunder, to give and receive notices and othercommunications, to make waivers or other agreements, to exercise all rights andoptions, to bring Proceedings in the name of the granting party or otherwise,and generally to do and receive anything that the granting party is or may beentitled to do or receive thereunder or with respect thereto.

 

Guaranty:  The guaranty entered into as of the datehereof by the Seller, FISC, the Back-up Servicer and the Indenture Trustee.

 

Holderor Noteholder:  A Class AHolder or Class B Holder or a Class A Noteholder or Class BNoteholder, respectively.

 

Indemnification Agreement:  The Indemnification Agreement dated as of April 27,2005 among the Insurer, the Seller and Wachovia Capital Markets.

 

Indenture Trustee:  Wells Fargo Bank, National Association, anational banking association, not in its individual capacity but solely asIndenture Trustee under this Indenture, and any successor indenture trusteeunder this Indenture.

 

Independent:  When used with respect to any specifiedPerson, that such Person (i) is in fact independent of the Trust, anyother obligor on the Notes, the Seller, the Servicer and any Affiliate of anyof the foregoing Persons, (ii) does not have any direct financial interestor any material indirect financial interest in the Trust, any such otherobligor, the Seller, the Servicer or any Affiliate (other than a specialpurpose securitization vehicle whose rating is based in part on 

 

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its beingbankruptcy-remote) of any of the foregoing Persons and (iii) is notconnected with the Trust, any such other obligor, the Seller, the Servicer orany Affiliate of any of the foregoing Persons as an officer, employee,promoter, underwriter, trustee, partner, director or person performing similarfunctions.

 

Indemnitees:  As defined in Section 6A.3(d).

 

Independent Certificate:  A certificate or opinion to be delivered tothe Indenture Trustee under the circumstances described in, and otherwisecomplying with, the applicable requirements of Section 11.1, made by anIndependent appraiser or other expert appointed by an Issuer Order and approvedby the Indenture Trustee in the exercise of reasonable care, and such opinionor certificate shall state that the signer has read the definition of “Independent”in this Indenture and that the signer is Independent within the meaningthereof.

 

Initial Contracts:  As defined in the Granting Clause.

 

Initial Cutoff Date:  March 31, 2005.

 

Issuer:  First Investors Auto Owner Trust 2005-A orany successor to First Investors Auto Owner Trust 2005-A.

 

Issuer Order:  A written order signed in the name of theIssuer by an Authorized Officer of the Issuer and delivered to the Indenture Trustee.

 

Issuer Request:  A written request signed in the name of theIssuer by an Authorized Officer of the Issuer and delivered to the IndentureTrustee.

 

Issuer’s Certificate:  A certificate signed by an Authorized Officerof the Issuer and delivered to the Indenture Trustee, which certificate shallcomply with the applicable requirements of Section 11.1.

 

Losses:  As defined in Sections 6.7(a) and6A.3(d).

 

Monthly Note Principal:  The Class A Monthly Note Principaland/or the Class B Monthly Note Principal, as the context may require.

 

Note Balance:  At any time, the sum of the Class A NoteBalance and the Class B Note Balance.

 

Note Depository Agreement:  The agreement dated May 4, 2005, betweenthe Issuer and The Depository Trust Company, as the initial Clearing Agency,relating to the Class A Notes.

 

Note Payment Account:  The Class A Note Payment Account or the Class BNote Payment Account, as the case may be.

 

Note Owner:  With respect to any Class A Noteholderof a Book-Entry Note, the Person who is the beneficial owner of such Book-EntryNote as reflected on the books of the Clearing Agency or on the books of aPerson maintaining an account with such Clearing Agency (directly as a 

 

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Clearing AgencyParticipant or as an indirect participant, in each case in accordance with the rules ofsuch Clearing Agency).

 

Note Rate:  With respect to the Class A-1 Notes,3.57% per annum and with respect to the Class A-2 Notes, 4.23% per annum.

 

Note Register:  As defined in Section 2.5.

 

Note Registrar:  As defined in Section 2.5.

 

Noteholders:  Collectively, the Class A Noteholdersand the Class B Noteholders, it being understood that with regards tovoting prior to the payment in full of the Class A Notes and the paymentin full of all amounts owed to the Insurer, a majority of Class ANoteholders will not include Class B Noteholders.

 

Notes:  Collectively, the Class A Notes and the Class BNotes, it being understood that with regards to voting prior to the payment infull of the Class A Notes and the payment in full of all amounts owed tothe Insurer, a majority of Class A Notes will not include Class BNotes.

 

Opinion of Counsel:  One or more written opinions of counsel whomay, except as otherwise expressly provided in this Indenture, be outsidecounsel to the Issuer, the Seller or the Servicer and who shall be acceptableto the Indenture Trustee and the Insurer (provided that no Insurer Defaultshall have occurred and is continuing), which opinion or opinions shall beaddressed to and delivered to the Indenture Trustee as Indenture Trustee andthe Insurer (provided that no Insurer Default shall have occurred and iscontinuing), shall comply with any applicable requirements of Section 11.1and shall be in form and substance satisfactory to the Indenture Trustee.

 

Outstanding:  As of the date of determination, all Notestheretofore authenticated and delivered under this Indenture except:

 

(i)                                     Notestheretofore canceled by the Note Registrar or delivered to the Note Registrarfor cancellation;

 

(ii)                                  Notesor portions thereof the payment for which money in the necessary amount hasbeen theretofore deposited with the Indenture Trustee or any Paying Agent intrust for the Holders of such Notes; provided, however, that if such Notes areto be redeemed, notice of such redemption must have been duly given pursuant tothis Indenture or provision for such notice must have been made in a mannersatisfactory to the Indenture Trustee; and

 

(iii)                               Notesin exchange for or in lieu of which other Notes have been authenticated anddelivered pursuant to this Indenture unless proof satisfactory to the IndentureTrustee is presented that any such Notes are held by a protected purchaser;

 

provided,however, that in determining whether the Holders of the requisite NoteBalance have given any request, demand, authorization, direction, notice,consent or waiver hereunder or under any Transaction Document, Notes owned bythe Issuer, the Seller, the Servicer or any Affiliate 

 

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of any of the foregoingPersons shall be disregarded and deemed not to be Outstanding, except that, indetermining whether the Indenture Trustee shall be protected in relying on anysuch request, demand, authorization, direction, notice, consent or waiver, onlyNotes that a Responsible Officer knows to be so owned shall be sodisregarded.  Notes so owned that havebeen pledged in good faith may be regarded as Outstanding if the pledgeeestablishes to the satisfaction of the Indenture Trustee the pledgee’s right soto act with respect to such Notes and that the pledgee is not the Issuer, anyother obligor upon the Notes, the Seller, the Servicer or any Affiliate of anyof the foregoing Persons.

 

Owner Trustee:  Wells Fargo Bank Delaware Trust Company, aDelaware limited purpose trust company, not in its individual capacity butsolely as Owner Trustee under the Trust Agreement, and any successor ownertrustee under the Trust Agreement.

 

Pass-Through Entity:  As defined in Section 2.16.

 

Paying Agent:  The Indenture Trustee or any other Personthat meets the eligibility standards for the Indenture Trustee specified in Section 6.10and is authorized by the Issuer to make payments to and distributions from theCollection Account, the Prefunding Account, the Reserve Account and each NotePayment Account, including payment of principal of or interest on the Notes, onbehalf of the Issuer.

 

Predecessor Note:  With respect to any particular Note, everyprevious Note evidencing all or a portion of the same debt as that evidenced bysuch particular Note.  Any Noteauthenticated and delivered under Section 2.6 in lieu of a mutilated,lost, destroyed or stolen Note shall be deemed, for purposes of thisdefinition, to evidence the same debt as the mutilated, lost, destroyed orstolen Note.

 

Prefunding Account EndingDate:  June 30,2005.

 

Premium Side LetterAgreement:  As definedin the Insurance Agreement.

 

Proceeding:  Any suit in equity, action at law or otherjudicial or administrative proceeding.

 

Purchase Agreement:  That Purchase Agreement, dated April 27,2005, among the Issuer, the Seller and Wachovia Capital Markets.

 

Record Date:  With respect to any Payment Date orRedemption Date, the close of business on the Business Day preceding suchPayment Date or Redemption Date; provided, however, that if Definitive Noteshave been issued pursuant to Section 2.13, Record Date shall mean,with respect to any Payment Date or Redemption Date, the last day of thepreceding Collection Period.

 

Redemption Date:  The Payment Date specified by the Servicerpursuant to Section 10.1 on which date the Indenture Trustee shallwithdraw any amount remaining in the Reserve Account and deposit the portion ofsuch amount payable to the Noteholders in the Note Payment Account.

 

Redemption Price:  As defined in Section 5.16 of the Saleand Allocation Agreement.

 

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Rule 144A:  Rule 144A under the Securities Act.

 

Rule 144AInformation:  Suchinformation as is specified pursuant to Rule 144A(d)(4) under theSecurities Act (or any successor provision thereto).

 

Sale and AllocationAgreement:  The Saleand Allocation Agreement, dated as of the date hereof, by and among the Issuer,the Servicer, the Indenture Trustee, the Securities Intermediary and theDepositor as the same may be amended, supplemented or otherwise modified and ineffect from time to time.

 

Securities Act:  Securities Act of 1933, as amended.

 

Seller:  First Investors Financial Services, Inc.a Texas corporation, in its capacity as seller under the ContributionAgreement, and its successors in such capacity.

 

Servicer:  FISC, in its capacity as servicer under theServicing Agreement, and any Successor Servicer.

 

State:  Any of the fifty states of the United Statesof America or the District of Columbia.

 

Successor Servicer:  As defined in the Servicing Agreement.

 

Transaction Documents:  The Servicing Agreement, the Sale andAllocation Agreement, the Contribution Agreement, the Premium Side LetterAgreement, the Trust Agreement, the Indemnification Agreement, the Certificateof Trust, this Indenture, the Administration Agreement, the Purchase Agreement,the Note Depository Agreement, the Insurance Agreement, the Policy, theGuaranty and the other documents and certificates delivered in connectiontherewith, in each case as the same may from time to time be amended,supplemented or otherwise modified and in effect.

 

Trust Accounts:  The Collection Account, the Class A NotePayment Account, the Class B Note Payment Account, the Prefunding Account,the Depositor Account and the Reserve Account.

 

Trust Estate:  All money, instruments, rights and otherproperty that are subject or intended to be subject to the lien and securityinterest of this Indenture for the benefit of the Noteholders and the Insurer(including, but not limited to, all property and interests Granted to theIndenture Trustee), including all proceeds thereof.

 

Wachovia Capital Markets:  Wachovia Capital Markets, LLC.

 

(b)                                 Exceptas otherwise specified herein or as the context may otherwise require,capitalized terms used but not otherwise defined herein have the respectivemeanings set forth in, or incorporated by reference into, the Sale andAllocation Agreement for all purposes of this Indenture.

 

**Section 1.2.**                                Rules ofConstruction.

** **

Unless the contextotherwise requires:

 

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(a)                                  aterm has the meaning assigned to it;

 

(b)                                 anaccounting term not otherwise defined has the meaning assigned to it in accordancewith generally accepted accounting principles as in effect from time to time;

 

(c)                                  “or”is not exclusive;

 

(d)                                 “including”means including without limitation;

 

(e)                                  wordsin the singular include the plural and words in the plural include the singularand the masculine as well as the feminine and neuter genders of such terms;

 

(f)                                    anyagreement, instrument or statute defined or referred to herein or in anyinstrument or certificate delivered in connection herewith means suchagreement, instrument or statute as from time to time amended, modified orsupplemented and includes (in the case of agreements or instruments) referencesto all attachments thereto and instruments incorporated therein; and

 

(g)                                 referencesto a Person are also to its permitted successors and assigns.

 

**Article IIThe Notes**

** **

**Section 2.1.**                                Form.

** **

(a)                                  TheClass A-1 Notes, the Class A-2 Notes and the Class B Notes,together with the Indenture Trustee’s certificates of authentication, shall besubstantially in the form set forth in Exhibits A-1, A-2 and B,respectively, with such appropriate insertions, omissions, substitutions andother variations as are required or permitted by this Indenture, and may havesuch letters, numbers or other marks of identification and such legends orendorsements placed thereon as may, consistently herewith, be determined by theofficers executing such Notes, as evidenced by their execution thereof.  Any portion of the text of any Note may beset forth on the reverse thereof, with an appropriate reference thereto on theface of the Note.

 

(b)                                 TheDefinitive Notes shall be typewritten, printed, lithographed or engraved, orproduced by any combination of these methods (with or without steel engravedborders), all as determined by the officers executing such Notes, as evidencedby their execution of such Notes.

 

(c)                                  EachNote shall be dated the date of its authentication.  The terms of the Class A-1 Notes, Class A-2Notes and Class B Notes set forth in Exhibits A-1, A-2 and B,respectively, hereto are part of the terms of this Indenture and areincorporated herein by reference.

 

**Section 2.2.**                                Execution,Authentication and Delivery.

** **

(a)                                  TheNotes shall be executed on behalf of the Issuer by any of its AuthorizedOfficers.  The signatures of any suchAuthorized Officer on the Notes may be manual or facsimile.

 

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(b)                                 Notesbearing the manual or facsimile signature of individuals who were at any timeAuthorized Officers of the Issuer shall bind the Issuer, notwithstanding thatsuch individuals or any of them have ceased to hold such offices prior to theauthentication and delivery of such Notes or did not hold such offices on thedate of such Notes.

 

(c)                                  TheIndenture Trustee shall, upon Issuer Order, authenticate and deliver the Class A-1Notes, Class A-2 Notes and Class B Notes for original issue in anaggregate principal amount of $69,000,000, $106,493,000 and $5,427,618.68,respectively.  The Class A NoteBalance and the Class B Note Balance at any time may not exceed suchrespective amounts.

 

(d)                                 EachNote shall be dated the date of its authentication.  The Class A Notes shall be issuable asregistered Notes in minimum denominations of $250,000 and integral multiples of$1,000 in excess thereof.  The Class BNotes shall be issued in definitive form only.

 

(e)                                  NoNote shall be entitled to any benefit under this Indenture or be valid orobligatory for any purpose unless there appears on such Note a certificate ofauthentication substantially in the form provided for herein executed by theIndenture Trustee by the manual signature of one of its authorized signatories,and such certificate upon any Note shall be conclusive evidence, and the onlyevidence, that such Note has been duly authenticated and delivered hereunder.

 

**Section 2.3.**                                Temporary Class ANotes.

** **

(a)                                  Pendingthe preparation of Definitive Notes, if Definitive Notes are to be prepared inaccordance with Section 2.13, the Issuer may execute, and uponreceipt of an Issuer Order the Indenture Trustee shall authenticate anddeliver, temporary Notes that are printed, lithographed, typewritten,mimeographed or otherwise produced of the tenor of the Definitive Notes in lieuof which they are issued and with such variations not inconsistent with theterms of this Indenture as the officers executing such Notes may determine, asevidenced by their execution of such Notes.

 

(b)                                 Iftemporary Class A Notes are issued, the Issuer shall cause DefinitiveNotes to be prepared without unreasonable delay.  After the preparation of Definitive Notes inaccordance with Section 2.13, the temporary Class A Notesshall be exchangeable for Definitive Notes upon surrender of the temporary Class ANotes at the office or agency of the Issuer to be maintained as provided in Section 3.2,without charge to the Class A Holder. Upon surrender for cancellation of any one or more temporary Class ANotes, the Issuer shall execute, and the Indenture Trustee shall authenticateand deliver in exchange therefor, a like principal amount of Definitive Notes ofauthorized denominations.  Until soexchanged, the temporary Class A Notes shall in all respects be entitledto the same benefits under this Indenture as Definitive Notes.

 

**Section 2.4.**                                Tax Treatment.

** **

The Issuer has enteredinto this Indenture, and the Notes shall be issued, with the intention that,for federal, state and local income and franchise tax purposes, the Notes shallqualify as indebtedness of the Issuer secured by the Trust Estate.  The Issuer, by entering into this Indenture,and each Noteholder, by its acceptance of a Note (and each Note Owner of a Class ANote by its acceptance of an interest in the applicable Book-Entry Note), agreeto treat 

 

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the Notes asindebtedness of the Issuer for federal, state and local income and franchisetax purposes.

 

**Section 2.5.**                                Registration;Registration of Transfer and Exchange.

** **

(a)                                  TheIssuer shall cause to be kept a register (the “Note Register”) in which,subject to such reasonable regulations as it may prescribe, the Issuer shallprovide for the registration of Notes and the registration of transfers ofNotes.  The Indenture Trustee initiallyshall be the registrar (the “*Note Registrar*”)for the purpose of registering Notes and transfers of Notes as hereinprovided.  Upon any resignation of anyNote Registrar, the Issuer shall promptly appoint a successor or, if it electsnot to make such an appointment, assume the duties of Note Registrar.  In addition, the Indenture Trustee herebyaccepts its appointment as Certificate Registrar, as defined in and pursuant toSection 3.4 of the Trust Agreement.

 

(b)                                 Ifa Person other than the Indenture Trustee is appointed by the Issuer as NoteRegistrar, (i) the Issuer shall give the Indenture Trustee prompt writtennotice of the appointment of such Note Registrar and of the location, or anychange in the location, of the Note Register, (ii) the Indenture Trusteeshall have the right to inspect the Note Register at all reasonable times andto obtain copies thereof and (iii) the Indenture Trustee shall have theright to rely upon a certificate executed on behalf of the Note Registrar by anExecutive Officer thereof as to the names and addresses of the Noteholders andthe principal amounts and number of such Notes.

 

(c)                                  Uponsurrender for registration of transfer of any Note at the office or agency ofthe Issuer to be maintained as provided in Section 3.2, if therequirements of Section 8-401 of the Relevant UCC are met, the Issuershall execute, and the Indenture Trustee shall authenticate and deliver to theNoteholder making such surrender, in the name of the designated transferee ortransferees, one or more new Notes in any authorized denomination, of a likeaggregate principal amount.  TheIndenture Trustee may rely upon the Administrator with respect to thedetermination of whether the requirements of Section 8-401 of the RelevantUCC are met.

 

(d)                                 Atthe option of the Noteholder, Notes may be exchanged for other Notes of thesame class in any authorized denominations, of a like aggregate principalamount, upon surrender of the Notes to be exchanged at such office oragency.  Whenever any Notes are sosurrendered for exchange, if the requirements of Section 8-401 theRelevant UCC are met, the Issuer shall execute, and the Indenture Trustee shallauthenticate and deliver to the Noteholder making such exchange, the Noteswhich such Noteholder is entitled to receive. The Indenture Trustee may rely upon the Administrator with respect tothe determination of whether the requirements of Section 8-401 of theRelevant UCC are met.

 

(e)                                  AllNotes issued upon any registration of transfer or exchange of Notes shall bethe valid obligations of the Issuer, evidencing the same debt, and entitled tothe same benefits under this Indenture, as the Notes surrendered upon suchregistration of transfer or exchange.

 

(f)                                    AllNotes presented or surrendered for registration of transfer or exchange shallbe duly endorsed by, or be accompanied by a written instrument of transfer inthe form of the Assignment attached to Exhibits A-1, A-2, or B,as the case may be, satisfactory to the Indenture Trustee duly executed by, theHolder thereof or such Holder’s attorney duly authorized in 

 

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writing,with such signature guaranteed by an “eligible guarantor institution” meetingthe requirements of the Note Registrar.

 

(g)                                 Noservice charge shall be made to a Holder for any registration of transfer orexchange of Notes, but the Issuer may require payment by such Holder of a sumsufficient to cover any tax or other governmental charge that may be imposed inconnection with any registration of transfer or exchange of Notes, other thanexchanges pursuant to Section 2.3 or 9.5 not involving any transfer.

 

(h)                                 TheIssuer shall not be required to make, and the Note Registrar need not register,transfers or exchanges of Notes selected for redemption or Notes with respectto which the due date for any payment will occur within 15 days.

 

**Section 2.6.**                                Mutilated, Destroyed,Lost or Stolen Notes.

** **

(a)                                  If(i) any mutilated Note is surrendered to the Indenture Trustee, or theIndenture Trustee receives evidence to its satisfaction of the destruction,loss or theft of any Note, and (ii) there is delivered to the IndentureTrustee such security or indemnity as may be required by it to hold the Issuerand the Indenture Trustee harmless, then, in the absence of notice to theIssuer, the Note Registrar or the Indenture Trustee that such Note has beenacquired by a protected purchaser, and provided that the requirements of Section 8-405of the Relevant UCC are met, the Issuer shall execute and the Indenture Trusteeshall authenticate and deliver, in exchange for or in lieu of any suchmutilated, destroyed, lost or stolen Note, a replacement Note; provided,however, that if any such destroyed, lost or stolen Note, but not a mutilatedNote, shall have become or within seven (7) days of the Indenture Trustee’sreceipt of evidence to its satisfaction of such destruction, loss or theft shallbe due and payable, or shall have been called for redemption in whole pursuantto Section 10.1, instead of issuing a replacement Note, the Issuermay pay such destroyed, lost or stolen Note when so due or payable or upon theRedemption Date without surrender thereof. The Indenture Trustee may rely upon the Administrator with respect tothe determination of whether the requirements of Section 8-405 of theRelevant UCC are met.  If, after thedelivery of such replacement Note or payment of a destroyed, lost or stolenNote pursuant to the proviso to the preceding sentence, a protected purchaserof the original Note in lieu of which such replacement Note was issued presentsfor payment such original Note, the Issuer and the Indenture Trustee shall beentitled to recover such replacement Note (or such payment) from the Person towhom such replacement Note was delivered or any Person taking such replacementNote from such Person to whom such replacement Note was delivered or anyassignee of such Person, except a protected purchaser, and shall be entitled torecover upon the security or indemnity provided therefor to the extent of anyloss, damage, cost or expense incurred by the Issuer or the Indenture Trusteein connection therewith.

 

(b)                                 Uponthe issuance of any replacement Note under this Section 2.6, the Issuermay require the payment by the Holder of such Note of a sum sufficient to coverany tax or other governmental charge that may be imposed in connection withsuch issuance and any other reasonable expenses (including the fees andexpenses of the Indenture Trustee) related thereto.

 

(c)                                  Everyreplacement Note issued pursuant to this Section 2.6 in replacement of anymutilated, destroyed, lost or stolen Note shall constitute an originaladditional contractual 

 

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obligationof the Issuer, whether or not the mutilated, destroyed, lost or stolen Noteshall be at any time enforceable by anyone, and shall be entitled to all thebenefits of this Indenture equally and proportionately with any and all otherNotes duly issued hereunder.

 

(d)                                 Theprovisions of this Section 2.6 are exclusive and shall preclude (tothe extent lawful) all other rights and remedies with respect to thereplacement or payment of mutilated, destroyed, lost or stolen Notes.

 

**Section 2.7.**                                Persons DeemedOwners.

** **

Prior to due presentationof a Note for registration of transfer, the Issuer, the Indenture Trustee andany agent of the Issuer or the Indenture Trustee may treat the Person in whosename such Note is registered in the Note Register (as of the day ofdetermination) as the owner of such Note for the purpose of receiving paymentsof principal of and interest on such Note and for all other purposeswhatsoever, whether or not such Note shall be overdue, and none of the Issuer,the Indenture Trustee or any agent of the Issuer or the Indenture Trustee shallbe affected by any notice to the contrary.

 

**Section 2.8.**                                Payments of Interestand Principal.

** **

(a)                                  [Reserved.]

 

(b)                                 Theprincipal of each Class of Notes shall be payable in installments on eachPayment Date (unless the Notes have been declared immediately due and payablein accordance with Section 5.2 following the occurrence of an Event ofDefault) in an aggregate amount equal to the applicable Monthly Note Principalfor such Payment Date in accordance with Section 3.5 of the Sale andAllocation Agreement.  The outstandingprincipal balance of any Class of Notes shall be due and payable on theFinal Note Payment Date relating to such Class of Notes.  On each Payment Date (unless the Notes havebeen declared immediately due and payable in accordance with Section 5.2following the occurrence of an Event of Default), upon receipt of instructionsfrom the Servicer pursuant to Section 3.5(d) and (e) of the Saleand Allocation Agreement, the Indenture Trustee shall:

 

(i)                                     applyor cause to be applied the amount on deposit in the Class A Note PaymentAccount on such Payment Date to make the following payments in the followingorder of priority:

 

(A)                              to eachClass of Class A Notes, prorata, based on therespective amounts then due to each Class of Class A Notes in respectof interest, the Total Note Interest payable for such Payment Date; 

 

(B)                                tothe Class A-1 Noteholders (i) the Class A Monthly Note Principalfor that Payment Date until the principal amount of the Class A-1 Noteshas been paid in full and (ii) any Excess Prefunding Amount payable to theClass A-1 Noteholders in accordance with Section 3.7(d) of theSale and Allocation Agreement; and

 

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(C)                                tothe Class A-2 Noteholders (i) any Excess Prefunding Amount payable tothe Class A-2 Noteholders in accordance with Section 3.7(d) ofthe Sale and Allocation Agreement and (ii) after the Class A-1 Noteholdershave been paid in full, the Class A Monthly Note Principal for thatPayment Date, until the principal amount of the Class A-2 Notes has beenpaid in full.

 

(ii)                                  applyor cause to be applied the amount on deposit in the Class B Note PaymentAccount on such Payment Date to the Class B Noteholders, for the paymentof any Excess Prefunding Amount payable to the Class B Noteholders inaccordance with Section 3.7(d) of the Sale and Allocation Agreementand the Class B Monthly Note Principal for that Payment Date until theprincipal amount of the Class B Notes has been paid in full.

 

(c)                                  Theoutstanding principal balance of each Class of Class A Notes, to theextent not previously paid, shall be due and payable on the Final Note PaymentDate for such Class of Class A Notes.

 

(d)                                 TheClass A-1 Notes shall accrue interest at 3.57% per annum and the Class A-2Notes shall accrue interest at 4.23% per annum and such interest shall be dueand payable on each Payment Date.  The Class BNotes shall not accrue interest. Interest on the Class A-1 Notes and Class A-2 Notes shall becalculated on the basis a 360-day year consisting of twelve 30-day months.  Subject to Section 3.1, anyinstallment of interest or principal, if any, payable on any Class A Notethat is punctually paid or duly provided for by the Issuer on the applicablePayment Date shall be paid to the Person in whose name such Note (or one ormore Predecessor Notes) is registered on the related Record Date by checkmailed first-class postage prepaid to such Person’s address as it appears onthe Note Register on such Record Date; provided, however, that,unless Definitive Notes have been issued pursuant to Section 2.13,with respect to Class A Notes registered on the Record Date in the name ofthe nominee of the Clearing Agency (initially, such nominee to be Cede &Co.), payment shall be made by wire transfer in immediately available funds tothe account designated by such nominee, and except for the final installment ofprincipal payable with respect to such Class A Note on a Payment Date oron the related Final Note Payment Date (and except for the Redemption Price forany Note called for redemption in whole pursuant to Section 10.1),which shall be payable as provided below. The funds represented by any such checks returned undelivered shall beheld in accordance with Section 3.3.  The Indenture Trustee shall pay all TotalNote Interest for any Payment Date to the Noteholders as of the related RecordDate even if a portion of such Total Note Interest relates to an earlierPayment Date.

 

(e)                                  Allpayments of principal on each Class of Notes and, with respect to each Class ofClass A Notes, interest payments, shall be made prorata tothe Noteholders of each Class of Notes. The Indenture Trustee shall, before the Payment Date on which the Issuerexpects to pay the final installment of principal of each Class of Notesand, with respect to each Class of Class A Notes, interest on anyNote, notify the Holder of such Note as of the related Record Date of such finalinstallment.  Such notice shall be mailedor transmitted by facsimile and shall specify that such final installment shallbe payable only upon presentation and surrender of such Note and shall specifythe place where such Note may be presented and surrendered for payment of 

 

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suchinstallment.  Notices in connection withredemption of Notes shall be mailed to Noteholders as provided in Section 10.2.

 

(f)                                    Notwithstandingthe foregoing, the entire unpaid principal amount of the Notes shall be due andpayable, if not previously paid, on the date on which the Notes have beendeclared or have automatically become immediately due and payable in accordancewith Section 5.2 following the occurrence of an Event ofDefault.  On each Payment Date followingacceleration of the Notes, upon receipt of instructions from the Servicerpursuant to Section 3.5(f) and Section 3.5(g) of the Saleand Allocation Agreement, the Indenture Trustee shall:

 

(i)                                     Applyor cause to be applied the amount on deposit in the Class A Note PaymentAccount (including amounts deposited therein from the Reserve Account inaccordance with Section 3.5(f) of the Sale and Allocation Agreement)on such Payment Date to make the following payments in the following order ofpriority:

 

(A)                              toeach Class of Class A Notes, pro rata, without priority or preferenceof any kind, according to the amounts due and payable on the Class A Notesin respect of interest, the Total Note Interest payable for such Payment Date;and

 

(B)                                toeach Class of Class A Notes, the amount remaining on deposit in the Class ANote Payment Account on such Payment Date to be distributed pro rata based onthe respective outstanding principal balance of each Class of Class ANotes.

 

(ii)                                  Followingthe payment in full of the entire Class A Note Balance, the Total NoteInterest and all amounts due the Insurer, to pay or cause to be paid the amounton deposit in the Class B Note Payment Account (including amountsdeposited therein from the Reserve Account in accordance with Section 3.5(g) ofthe Sale and Allocation Agreement) on such Payment Date to the Class BNoteholders, the amount remaining on deposit in the Class B Note PaymentAccount on such Payment Date up to the Class B Note Balance.

 

**Section 2.9.**                                Cancellation.

** **

All Notes surrendered forpayment, registration of transfer, exchange or redemption in whole pursuant to Section 10.1shall, if surrendered to any Person other than the Indenture Trustee, bedelivered to the Indenture Trustee and shall be promptly canceled by theIndenture Trustee.  The Issuer may at anytime deliver to the Indenture Trustee for cancellation any Notes previouslyauthenticated and delivered hereunder which the Issuer may have acquired in anymanner whatsoever, and all Notes so delivered shall be promptly canceled by theIndenture Trustee.  No Notes shall beauthenticated in lieu of or in exchange for any Notes canceled as provided inthis Section 2.9, except as expressly permitted by thisIndenture.  All canceled Notes may beheld or disposed of by the Indenture Trustee in accordance with its standardretention or disposal policy as in effect at the time unless the Issuer shalldirect by an Issuer Order that they be destroyed or returned to it, providedthat such Issuer Order is timely and the Notes have not been previouslydisposed of by the Indenture Trustee.

 

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**Section 2.10.**                         Release of Collateral.

** **

Subject to Section 11.1and the terms of the Transaction Documents, the Indenture Trustee shall releaseproperty from the lien of this Indenture at any time before the Notes have beenpaid in full only upon receipt of an Issuer Request accompanied by an Issuer’sCertificate and an Opinion of Counsel.

 

**Section 2.11.**                         Book-Entry.

** **

The Class A Notes,upon original issuance, shall be issued in the form of typewritten Notesrepresenting the Book-Entry Notes, to be delivered to The Depository TrustCompany, the initial Clearing Agency, by, or on behalf of, the Issuer.  The Class A Notes representing theBook-Entry Notes shall be registered initially on the Note Register in the nameof Cede & Co., the nominee of the initial Clearing Agency, and no NoteOwner thereof shall receive a Definitive Note representing such Note Owner’s interestin such Note, except as provided in Section 2.13. Unless and untildefinitive, fully registered Class A Notes (the “*DefinitiveNotes*”) have been issued to such Note Owners pursuant to Section 2.13:

 

(a)                                  theprovisions of this Section 2.11 shall be in full force and effect;

 

(b)                                 theNote Registrar and the Indenture Trustee shall be entitled to deal with theClearing Agency for all purposes of this Indenture (including the payment ofprincipal of and interest on the Class A Notes and the giving of instructionsor directions hereunder) as the sole Holder of the Class A Notes, andshall have no obligation to the Note Owners;

 

(c)                                  tothe extent that the provisions of this Section 2.11 conflict withany other provisions of this Indenture, the provisions of this Section shallcontrol;

 

(d)                                 therights of Note Owners shall be exercised only through the Clearing Agency andshall be limited to those established by law and agreements between such NoteOwners and the Clearing Agency and/or the Clearing Agency Participants pursuantto the Note Depository Agreement; unless and until Definitive Notes are issuedpursuant to Section 2.13, the initial Clearing Agency shall makebook-entry transfers among the Clearing Agency Participants and receive andtransmit payments of principal of and interest on the Notes to such ClearingAgency Participants; and

 

(e)                                  wheneverthis Indenture requires or permits actions to be taken based upon instructionsor directions of Noteholders evidencing a specified percentage of the Class ANote Balance, the Clearing Agency shall be deemed to represent such percentageonly to the extent that it has received instructions to such effect from NoteOwners and/or Clearing Agency Participants owning or representing,respectively, such required percentage of the beneficial interest in the Class ANotes and has delivered such instructions to the Indenture Trustee.

 

**Section 2.12.**                         Notices to Clearing Agency.

** **

Whenever a notice orother communication to the Class A Noteholders is required under thisIndenture, unless and until Definitive Notes shall have been issued to suchNote Owners pursuant to Section 2.13, the Indenture Trustee shallgive all such notices and communications 

 

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specified hereinto be given to Class A Noteholders to the Clearing Agency, and shall haveno obligation to such Note Owners.

 

**Section 2.13.**                         Definitive Notes.

** **

If (a) the Issuer,the Administrator or the Servicer advises the Indenture Trustee in writing thatthe Clearing Agency is no longer willing or able to properly discharge itsresponsibilities with respect to the Book-Entry Notes and the Indenture Trusteeor the Administrator is unable to locate a qualified successor, (b) theAdministrator, at its option, advises the Indenture Trustee in writing that itelects to terminate the book-entry system through the Clearing Agency, (c) atany time the Clearing Agency shall no longer be registered under the ExchangeAct, or other applicable statute or regulation and, in either case, the Administratoror the Indenture Trustee, as applicable, is unable to appoint a qualifiedsuccessor or (d) after the occurrence of an Event of Default or an Eventof Servicing Termination, Note Owners of the Book-Entry Notes representingbeneficial interests aggregating not less than 51% of the principal amount ofsuch Notes advise the Indenture Trustee and the Clearing Agency in writing thatthe continuation of a book-entry system through the Clearing Agency is nolonger in the best interests of such Note Owners, then the Clearing Agencyshall notify all Note Owners and the Indenture Trustee of the occurrence ofsuch event and of the availability of Definitive Notes to Note Ownersrequesting the same.  Upon surrender tothe Indenture Trustee of the typewritten Note representing the Book-Entry Notesby the Clearing Agency, accompanied by registration instructions, the Issuershall execute and the Indenture Trustee shall authenticate the Definitive Notesin accordance with the instructions of the Clearing Agency.  None of the Issuer, the Note Registrar or theIndenture Trustee shall be liable for any delay in delivery of suchinstructions and may conclusively rely on, and shall be protected in relyingon, such instructions.  Upon the issuanceof Definitive Notes, the Indenture Trustee shall recognize the Holders of theDefinitive Notes as Noteholders.

 

**Section 2.14.**                         Authenticating Agents.

** **

The Indenture Trustee mayappoint one or more Persons (each, an “*Authenticating Agent*”)with power to act on its behalf and subject to its direction in theauthentication of Notes in connection with issuance, transfers and exchangesunder Sections2.2, 2.3, 2.5, 2.6 and 2.13,as fully to all intents and purposes as though each such Authenticating Agenthad been expressly authorized by those Sections to authenticate suchNotes.  For all purposes of thisIndenture, the authentication of Notes by an Authenticating Agent pursuant tothis Section 2.14 shall be deemed to be the authentication of Notes“by the Indenture Trustee.”

 

Any corporation intowhich any Authenticating Agent may be merged or converted or with which it maybe consolidated, or any corporation resulting from any merger, consolidation orconversion to which any Authenticating Agent shall be a party, or anycorporation succeeding to all or substantially all of the corporate trustbusiness of any Authenticating Agent, shall be the successor of suchAuthenticating Agent hereunder, without the execution or filing of any furtheract on the part of the parties hereto or such Authenticating Agent or suchsuccessor corporation.

 

Any Authenticating Agentmay at any time resign by giving written notice of resignation to the IndentureTrustee and the Owner Trustee.  TheIndenture Trustee may at any time 

 

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terminate theagency of any Authenticating Agent by giving written notice of termination tosuch Authenticating Agent and the Owner Trustee.  Upon receiving such notice of resignation orupon such a termination, the Indenture Trustee may appoint a successorAuthenticating Agent and shall give written notice of any such appointment tothe Owner Trustee.

 

The Administrator agreesto pay to each Authenticating Agent from time to time reasonable compensationfor its services.  The provisions of Sections2.9 and 6.4 shall be applicable to any Authenticating Agent.

 

**Section 2.15.**                         Restrictions on Transfersof Class A Notes.

** **

(a)                                  TheClass A Notes have not been and will not be registered under theSecurities Act and no Class A Note or any interest therein may bereoffered, resold, pledged or otherwise transferred except as contemplated bythe legend set forth in paragraph (d) below.  Any resale or other transfer, or attemptedresale or other transfer which is not made in compliance with the restrictionsset forth in such legend shall not be recognized by the Issuer.  Authorization of the Issuer of a purchase,resale or transfer of a Class A Note will be granted only if made to aqualified institutional buyer and, in each case, in accordance with the otherrequirements applicable to a sale of Class A Notes.  Each purchaser acknowledges and is deemed toacknowledge that no representation is made by the Issuer as to the availabilityof any exemption under the Securities Act or any state securities laws forresale of the Class A Notes and that such purchaser may be required tobear the financial risks of this investment for an indefinite period of time.

 

(b)                                 Eachpurchaser and any account for which such purchaser is acquiring the Class ANotes are “Qualified Institutional Buyers” (as defined in Rule 144A underthe Securities Act).  Each purchaser hassuch knowledge and experience in financial and business matters as to becapable of evaluating the merits and risks of its investment in the Class ANotes, and each purchaser and any account for which such purchaser is actingare each able to bear the economic risk of such investment.

 

(c)                                  Eachpurchaser, by its acceptance of its Class A Note, acknowledges that the Class ANotes are being sold to it pursuant to an exemption from the registrationrequirements of the Securities Act.  Nopurchaser is purchasing its Class A Notes with a view to resale,distribute or dispose of in any other manner thereof in violation of theSecurities Act.  Each purchaser has hadaccess to such financial and other information concerning the Issuer and the Class ANotes as it deemed necessary or appropriate in order to make an informedinvestment decision with respect to such purchase of the Class A Notes,including an opportunity to ask questions of and request information from theIssuer.

 

(d)                                 EachClass A Note evidencing Book-Entry Notes and Definitive Notes (and all Class ANotes issued in exchange therefor or substitution thereof) shall bear a legendin substantially the following form:

 

THIS CLASS A NOTEHAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, ASAMENDED (THE “SECURITIES ACT”), OR THE APPLICABLE SECURITIES LAWS OF ANYSTATE.  ACCORDINGLY, TRANSFER OF 

 

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THIS CLASS ANOTE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN SECTION 2.15 OF THEINDENTURE.  BY ITS ACCEPTANCE OF THIS CLASS ANOTE, THE HOLDER OF THIS CLASS A NOTE IS DEEMED TO REPRESENT TO THE ISSUERAND THE INDENTURE TRUSTEE THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” ASDEFINED IN RULE 144A UNDER THE SECURITIES ACT AND IS ACQUIRING THIS CLASS ANOTE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARYOR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS).

 

NO SALE, PLEDGE OR OTHERTRANSFER OF THIS CLASS A NOTE SHALL BE MADE UNLESS SUCH SALE, PLEDGE OROTHER TRANSFER IS (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENTUNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE CLASS A NOTES AREELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSONTHE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A “QUALIFIEDINSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNTOR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVENTHAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (C) PURSUANTTO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THESECURITIES ACT, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED AND ANYAPPLICABLE STATE SECURITIES AND BLUE SKY LAWS OR IS MADE IN ACCORDANCE WITHEACH SUCH ACT AND STATE LAWS. THE INDENTURE TRUSTEE MAY REQUIRE AN OPINIONOF COUNSEL TO BE DELIVERED TO IT IN CONNECTION WITH ANY SALE, PLEDGE OR OTHERTRANSFER OF THIS CLASS A NOTE PURSUANT TO CLAUSES (A) OR (C) ABOVE.  ALL OPINIONS OF COUNSEL REQUIRED INCONNECTION WITH ANY TRANSFER SHALL BE BY COUNSEL REASONABLY ACCEPTABLE TO THEINDENTURE TRUSTEE.

 

EACH TRANSFEREE OF THIS CLASS ANOTE OR ANY INTEREST HEREIN WILL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER(I) IT IS NOT, AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THE NOTES FOR, ONBEHALF OF OR WITH ANY ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER ARRANGEMENTSUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, ASAMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUECODE OF 1986, AS AMENDED (THE “CODE”), OR A PLAN OR OTHER ARRANGEMENT SUBJECTTO ANY PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS ORREGULATIONS THAT ARE SUBSTANTIVELY SIMILAR TO THE FOREGOING PROVISIONS OF ERISAOR THE CODE (“SIMILAR LAW”) OR (II) ITS ACQUISITION AND HOLDING OF SUCH NOTESOR ANY INTEREST THEREIN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPTPROHIBITED TRANSACTION UNDER ERISA OR THE CODE, OR A VIOLATION OF SIMILAR LAW.

 

(e)                                  Thepurchaser of a Class A Note or any interest therein understands and agreesand is deemed to understand and agree by its acceptance of its Class ANote that the Class A Notes and related documentation may be amended orsupplemented from time to time to modify 

 

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therestrictions on and procedures for resales and other transfers of the Class ANotes to reflect any change in applicable law or regulation (or interpretationthereof) or in practice relating to the resale or transfer of restrictedsecurities generally.

 

(f)                                    TheHolders of the Class A Notes and all Note Owners of Class A Notes arebound by, and are deemed to have notice of, all provisions contained in theIndenture.

 

(g)                                 Thepurchaser of a Class A Note or any interest therein acknowledges and isdeemed to acknowledge by its acceptance of such purchase that the Issuer andothers will rely upon the truth and accuracy of the foregoing acknowledgments,representations and agreements.  If thepurchaser is acquiring any Class A Notes as a fiduciary or agent for oneor more investor accounts, it represents that it has sole investment discretionwith respect to each such account and that it has full power to make theforegoing acknowledgments, representations and agreements on behalf of eachsuch account.

 

**Section 2.16.**                         Restrictions on Transfersof Class B Notes.

** **

(a)                                  EveryClass B Note presented or surrendered for registration of transfer orexchange shall be duly endorsed, or be accompanied by a written instrument oftransfer in form satisfactory to the Indenture Trustee, duly executed by such Class BNoteholder or its attorney duly authorized in writing.

 

(b)                                 EachClass B Note shall bear a legend substantially to the following effect:

 

THIS NOTE HAS NOT BEENREGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “*SECURITIES ACT*”) OR ANY STATESECURITIES OR “BLUE SKY” LAWS.  THEHOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT THIS NOTE MAY BERESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO AN AFFILIATE OF THEISSUER, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THESECURITIES ACT OR (3) IN RELIANCE ON AN EXEMPTION FROM THE REGISTRATIONREQUIREMENTS OF THE SECURITIES ACT AND SUBJECT TO THE ISSUER’S AND THEINDENTURE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRETHE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATIONSATISFACTORY TO EACH OF THEM.  ANYNOTEHOLDER WILL, AND EACH SUBSEQUENT NOTEHOLDER IS REQUIRED TO, NOTIFY ANYPURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TOABOVE.  THE ISSUER IS NOT OBLIGATED TOREGISTER THIS NOTE UNDER THE SECURITIES ACT OR ANY STATE SECURITIES OR BLUE SKYLAWS.  TRANSFER OF THIS NOTE IS SUBJECTTO ADDITIONAL TRANSFER RESTRICTIONS CONTAINED IN SECTION 2.16 OFTHE INDENTURE.

 

(c)                                  NoClass B Note (or any interest therein) may be transferred (including,without limitation, by pledge or hypothecation) unless such transferee executesand delivers to the Issuer, the Insurer and the Indenture Trustee a transfercertificate certifying as to the items set forth in this Section 2.16;provided, however, that no such transferee may be an employeebenefit plan,

 

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trust,annuity or account subject to ERISA or a plan described in Section 4975(E)(1) ofthe Code, an indenture trustee of any of the foregoing, or an entity, accountor other pooled investment fund the underlying assets of which include or aredeemed to include assets of any of the foregoing.

 

Upon the transfer of anysuch Class B Note, the Issuer shall issue and the Indenture Trustee shallauthenticate in the name of the transferee a new Class B Note of the sameaggregate principal amount as the surrendered Class B Note.

 

(d)                                 Notransfer of a Class B Note shall be permitted to the extent that suchtransfer would result in more than 80 Holders (within the meaning of TreasuryRegulation Section 1.7704-1(h)) of Class B Notes and beneficialinterests in the Issuer in the aggregate. No transfer of a Class B Note may be made to any Person (a “*Pass-Through Entity*”) that is apartnership (including any other entity treated as a partnership for income taxpurposes), S corporation or grantor trust unless such Pass-Through Entity isable to represent that the Class B Note represents less than 50% of thefair market value of all assets of such entity. Notwithstanding the foregoing, no transfer of a Class B Note shallbe made except in accordance with the restrictions set forth in the Indentureand in the form of Class B Note.

 

**Section 2.17.**                         Regarding Owner Trustee.

** **

The parties to thisIndenture and each holder of a Note by its acceptance thereof expresslyacknowledge and consent to Wells Fargo Delaware Trust Company, an affiliate ofthe Indenture Trustee, acting as Owner Trustee pursuant to the TrustAgreement.  The Indenture Trustee maydischarge its functions hereunder and under the other Transaction Documentsfully, without hindrance or regard to conflict of interest principles, duty ofloyalty principles or other breach of fiduciary duties to the extent that anysuch conflict or breach arises from the performance by it of its express dutiesset forth in this Indenture, all of which defenses, claims or assertions arehereby expressly waived by the other parties hereto and each holder of a Note.

 

**Article III**Covenants

** **

**Section 3.1.**                                Payment Covenant.

** **

The Issuer shall duly andpunctually pay the principal of and interest, if any, on the Notes inaccordance with the terms of the Notes and this Indenture, which shall be paidpursuant to Section 3.5 of the Sale and Allocation Agreement.  Amounts properly withheld under the Code byany Person from a payment to any Noteholder of interest (with respect to the Class ANotes) and/or principal shall be considered as having been paid by the Issuerto such Noteholder for all purposes of this Indenture.

 

**Section 3.2.**                                Maintenance ofOffice or Agency.

** **

The Issuer shall maintainin Minneapolis, Minnesota, an office or agency or appoint an agent located inMinneapolis, Minnesota where Notes may be surrendered for registration oftransfer or exchange, and where notices and demands to or upon the Issuer inrespect of the 

 

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Notes and thisIndenture may be served.  The Issuerhereby initially appoints the Indenture Trustee to serve as its agent for theforegoing purposes and the Indenture Trustee hereby accepts such appointment.  The Issuer shall give prompt written noticeto the Indenture Trustee of the location, and of any change in the location, ofany such office or agency.  If, at anytime, the Issuer shall fail to maintain any such office or agency or shall failto furnish the Indenture Trustee with the address thereof, such surrenders,notices and demands may be made or served at the Corporate Trust Office, andthe Issuer hereby appoints the Indenture Trustee as its agent to receive allsuch surrenders, notices and demands.

 

**Section 3.3.**                                Money for Paymentsto be Held in Trust.

** **

(a)                                  Asprovided in Section 8.2, all payments of amounts due and payablewith respect to the Notes that are to be made from amounts withdrawn from theTrust Accounts shall be made on behalf of the Issuer by the Indenture Trusteeor by another Paying Agent, and no amounts so withdrawn from the Trust Accountsshall be paid over to the Issuer, except as provided in this Section 3.3.

 

(b)                                 Onor before each Payment Date and Redemption Date, the Issuer shall deposit orcause to be deposited in the applicable Note Payment Account an aggregate sumsufficient to pay the amounts then becoming due under the Notes, such sum to beheld in trust for the benefit of the Persons entitled thereto, and (unless thePaying Agent is the Indenture Trustee) shall promptly notify the IndentureTrustee of its action or failure to so act.

 

(c)                                  TheIssuer shall cause each Paying Agent other than the Indenture Trustee toexecute and deliver to the Indenture Trustee an instrument in which such PayingAgent shall agree with the Indenture Trustee (and if the Indenture Trustee actsas Paying Agent, it hereby so agrees), subject to the provisions of this Section 3.3,that such Paying Agent shall:

 

(i)                                     holdall sums held by it for the payment of amounts due with respect to the Notes intrust for the benefit of the Persons entitled thereto until such sums shall bepaid to such Persons or otherwise disposed of as herein provided and pay suchsums to such Persons as herein provided;

 

(ii)                                  givethe Indenture Trustee notice of any default by the Issuer (or any other obligorupon the Notes) of which it has actual knowledge in the making of any paymentrequired to be made with respect to the Notes;

 

(iii)                               atany time during the continuance of any such default, upon the written requestof the Indenture Trustee, forthwith pay to the Indenture Trustee all sums soheld in trust by such Paying Agent;

 

(iv)                              immediatelyresign as a Paying Agent and forthwith pay to the Indenture Trustee all sumsheld by it in trust for payment of the Notes if at any time it ceases to meetthe standards required to be met by a Paying Agent at the time of itsappointment; and

 

(v)                                 complywith all requirements of the Code and any state or local tax law with respectto the withholding from any payments made by it on the Notes of any 

 

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applicablewithholding taxes imposed thereon and with respect to any applicable reportingrequirements in connection therewith.

 

(d)                                 TheIssuer may at any time, for the purpose of obtaining the satisfaction anddischarge of this Indenture or for any other purpose, by Issuer Order directany Paying Agent to pay to the Indenture Trustee all sums held in trust by suchPaying Agent, such sums to be held by the Indenture Trustee upon the sametrusts as those upon which such sums were held by such Paying Agent, and uponsuch payment by any Paying Agent to the Indenture Trustee, such Paying Agentshall be released from all further liability with respect to such sums.

 

(e)                                  Subjectto applicable laws with respect to escheat of funds, any money held by theIndenture Trustee or any Paying Agent in trust for the payment of any amountdue with respect to any Note and remaining unclaimed for two (2) yearsafter such amount has become due and payable shall be discharged from suchtrust and be paid to the Issuer on Issuer Request, and the Holder of such Noteshall thereafter, as an unsecured general creditor, look only to the Issuer forpayment thereof (but only to the extent of the amounts so paid to the Issuer),and all liability of the Indenture Trustee or such Paying Agent with respect tosuch trust money shall thereupon cease; provided, however, thatthe Indenture Trustee or such Paying Agent, before being required to make anysuch repayment, shall at the expense and direction of the Issuer cause to bepublished once, in a newspaper published in the English language, customarilypublished on each Business Day and of general circulation in The City of NewYork, notice that such money remains unclaimed and that, after a date specifiedtherein, which shall not be less than thirty (30) days from the date of suchpublication, any unclaimed balance of such money then remaining shall be repaidto the Issuer.  The Indenture Trusteeshall also adopt and employ, at the expense and direction of the Issuer, anyother reasonable means of notification of such repayment (including, but notlimited to, mailing notice of such repayment to Holders whose Notes have beencalled but have not been surrendered for redemption in whole pursuant to Section 10.1or whose right to or interest in monies due and payable but not claimed isdeterminable from the records of the Indenture Trustee or of any Paying Agentat the last address of record for each such Holder).

 

**Section 3.4.**                                Existence.

** **

The Issuer shall keep infull effect its existence, rights and franchises as a statutory trust under thelaws of the State of Delaware (unless it becomes, or any successor Issuerhereunder is or becomes, organized under the laws of any other State or of the UnitedStates of America, in which case the Issuer shall keep in full effect itsexistence, rights and franchises under the laws of such other jurisdiction) andshall obtain and preserve its qualification to do business in each jurisdictionin which such qualification is or shall be necessary to protect the validityand enforceability of this Indenture, the Notes, the Collateral and each otherinstrument or agreement included in the Trust Estate.

 

**Section 3.5.**                                Protection of TrustEstate.

** **

The Issuer shall fromtime to time execute, if applicable, and deliver all such supplements andamendments hereto and all such financing statements, continuation statements,instruments

 

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of furtherassurance and other instruments, and shall take such other action necessary oradvisable to:

 

(a)                                  maintainor preserve the lien and security interest (and the priority thereof) of thisIndenture or carry out more effectively the purposes hereof including, withoutlimitation, the filing of any financing statement or any amendment to anyexisting financing statement necessitated by Section 3.8(d)(iv);

 

(b)                                 perfect,publish notice of or protect the validity of any Grant made or to be made bythis Indenture;

 

(c)                                  enforceany of the Collateral; or 

 

(d)                                 preserveand defend title to the Trust Estate and the rights of the Indenture Trustee,the Insurer and the Noteholders in the Trust Estate against the claims of allPersons.

 

The Issuer herebydesignates the Indenture Trustee its agent and attorney-in-fact to execute upona written instruction from the Issuer, the Insurer or Servicer any financingstatement, continuation statement or other instrument required to be executedpursuant to this Section 3.5.

 

**Section 3.6.**                                Opinions as to TrustEstate.

** **

(a)                                  Onthe Closing Date, the Issuer shall deliver to the Indenture Trustee and theInsurer an Opinion of Counsel reasonably acceptable to such parties eitherstating that, in the opinion of such counsel, such action has been taken withrespect to this Indenture and other requisite documents and with respect to theexecution and filing of any financing statements and continuation statements,as are necessary to perfect and make effective the first priority lien andsecurity interest in favor of the Indenture Trustee, created by this Indentureand reciting the details of such action, or stating that, in the opinion ofsuch counsel, no such action is necessary to make such lien and securityinterest effective.

 

(b)                                 Onor before March 31 of each year (commencing with the year 2006), theIssuer shall deliver to the Indenture Trustee and the Insurer an Opinion ofCounsel acceptable to such parties either stating that, in the opinion of suchcounsel, such action has been taken with respect to the recording, filing,re-recording and refiling of this Indenture, any indentures supplemental heretoand any other requisite documents and with respect to the execution and filingof any financing statements and continuation statements as is necessary tomaintain the lien and security interest created by this Indenture and recitingthe details of such action or stating that, in the opinion of such counsel, nosuch action is necessary to maintain such lien and security interest.  Such Opinion of Counsel shall also describethe recording, filing, re-recording and refiling of this Indenture, anyindentures supplemental hereto and any other requisite documents and theexecution and filing of any financing statements and continuation statementsthat shall, in the opinion of such counsel, be required to maintain the lienand security interest of this Indenture until March 31 in the followingyear.

 

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**Section 3.7.**                                Performance ofObligations.

** **

(a)                                  TheIssuer shall not take any action and shall use its best efforts not to permitany action to be taken by others that would release any Person from any of suchPerson’s material covenants or obligations under any instrument or agreementincluded in the Trust Estate or that would result in the amendment,hypothecation, subordination, termination or discharge of, or impair thevalidity or effectiveness of, any such instrument or agreement, except asexpressly provided in this Indenture and the other Transaction Documents.

 

(b)                                 TheIssuer may contract with other Persons to assist it in performing its dutiesunder this Indenture, and any performance of such duties by a Person identifiedto the Indenture Trustee in an Issuer’s Certificate shall be deemed to beaction taken by the Issuer.  Initially,the Issuer has contracted with the Servicer and the Administrator to assist theIssuer in performing its duties under this Indenture as set forth in theServicing Agreement and the Administration Agreement.

 

(c)                                  TheIssuer shall punctually perform and observe all of its obligations andagreements contained in this Indenture, the other Transaction Documents towhich it is a party and the instruments and agreements included in the TrustEstate, including, but not limited to, filing or causing to be filed allfinancing statements and continuation statements required to be filed under theRelevant UCC by the terms of this Indenture and the Servicing Agreement inaccordance with and within the time periods provided for herein andtherein.  Except as otherwise expresslyprovided therein, the Issuer shall not waive, amend, modify, supplement orterminate any Transaction Document or any provision thereof without the consentof the Indenture Trustee, the Insurer or the Noteholders evidencing not lessthan 51% of the Note Balance.

 

(d)                                 Ifthe Issuer shall have knowledge of the occurrence of an Event of ServicingTermination under the Servicing Agreement, the Issuer shall promptly notify theIndenture Trustee, the Insurer and the Rating Agencies thereof and shallspecify in such notice the action, if any, the Issuer is taking in respect ofsuch default.  If an Event of ServicingTermination shall arise from the failure of the Servicer to perform any of itsduties or obligations under the Servicing Agreement with respect to theContracts, the Issuer shall take all reasonable steps available to it to remedysuch failure.

 

(e)                                  [Reserved.]

 

(f)                                    Uponany termination of the Servicer’s rights and powers pursuant to Section 5.02of the Servicing Agreement, the Issuer shall promptly notify the IndentureTrustee and the Insurer of such termination. Upon any appointment of a Successor Servicer by the Issuer, the Issuershall promptly notify the Indenture Trustee and the Insurer of such appointment,specifying in such notice the name and address of such Successor Servicer.

 

(g)                                 Withoutderogating from the absolute nature of the assignment granted to the IndentureTrustee under this Indenture or the rights of the Indenture Trustee hereunder,the Issuer shall not, without the prior written consent of the Insurer (if noInsurer Default shall have occurred and be continuing), the Indenture Trusteeand the Holders of not less than 51% of the 

 

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Class ANote Balance, amend, modify, waive, supplement, terminate or surrender, oragree to any amendment, modification, waiver, supplement, termination orsurrender of, the terms of any Collateral (except to the extent otherwisepermitted in the Servicing Agreement or the other Transaction Documents).

 

**Section 3.8.**                                Negative Covenants.

** **

If any Notes areOutstanding or the Insurer has not been paid all amounts owed to it, the Issuershall not:

 

(a)                                  exceptas expressly permitted by this Indenture, the Trust Agreement, the ServicingAgreement or the Sale and Allocation Agreement, sell, transfer, exchange orotherwise dispose of any of the properties or assets of the Issuer, includingthose included in the Trust Estate, unless directed to do so by the IndentureTrustee with the prior written consent of the Insurer;

 

(b)                                 claimany credit on, or make any deduction from the principal or interest payable inrespect of, the Notes (other than amounts properly withheld from such paymentsunder the Code or applicable state law) or assert any claim against any presentor former Noteholder by reason of the payment of taxes levied or assessed uponthe Issuer;

 

(c)                                  dissolveor liquidate in whole or in part;

 

(d)                                 (i) permitthe validity or effectiveness of this Indenture to be impaired, or permit thelien of this Indenture to be amended, hypothecated, subordinated, terminated ordischarged, or permit any Person to be released from any covenants orobligations with respect to the Notes under this Indenture except as may be expresslypermitted hereby, (ii) permit any lien, charge, excise, claim, securityinterest, mortgage or other encumbrance (other than the lien of this Indenture)to be created on or extend to or otherwise arise upon or encumber the TrustEstate or any part thereof or any interest therein or the proceeds thereof(other than tax liens, mechanics’ liens and other liens that arise by operationof law, in each case on any of the Financed Vehicles and arising solely as aresult of an action or omission of the related Obligor), (iii) permit thelien of this Indenture not to constitute a valid first priority (other than asset forth in clause (ii)) security interest in the Trust Estate, or (iv) changeits name, identity or state of organization in any manner that would make anyfinancing statement or continuation statement filed with respect to itseriously misleading within the meaning of Section 9-507 of the RelevantUCC, or cause any financing statement or continuation statement filed withrespect to it to be amended, without prior written notice to the Insurer andthe Indenture Trustee;

 

(e)                                  engagein any activities other than issuing the Notes, financing, acquiring, owning,pledging and managing the Contracts as contemplated by the Servicing Agreement,the Trust Agreement, the Sale and Allocation Agreement, the Insurance Agreementand this Indenture and activities incidental to such activities; or

 

(f)                                    incur,assume or guarantee any indebtedness other than the indebtedness evidenced bythe Notes or indebtedness otherwise permitted by the Transaction Documents.

 

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**Section 3.9.**                                Annual Statement asto Compliance.

** **

On or before July 31of each year (commencing with the year 2006), the Issuer shall deliver to theIndenture Trustee and the Insurer an Issuer’s Certificate stating, as to theAuthorized Officer signing such Issuer’s Certificate, that:

 

(a)                                  areview of the activities of the Issuer during the preceding Fiscal Year (or, inthe case of the Issuer’s Certificate to be delivered in the year 2006, duringthe period beginning on the Closing Date and ending on April 30, 2006) andof its performance under this Indenture has been made under such AuthorizedOfficer’s supervision; and

 

(b)                                 tothe best of such Authorized Officer’s knowledge, based on such review, theIssuer has complied with all conditions and covenants under this Indenturethroughout such preceding Fiscal Year (or, in the case of the Issuer’sCertificate to be delivered in the year 2006, during the period beginning onthe Closing Date and ending on April 30, 2006) or, if there has been adefault in its compliance with any such condition or covenant, specifying eachsuch default known to such Authorized Officer and the nature and statusthereof.

 

**Section 3.10.**                         Issuer May Not Merge.

** **

(a)                                  TheIssuer shall not consolidate or merge with or into any other Person unless:

 

(i)                                     thePerson (if other than the Issuer) formed by or surviving such consolidation ormerger shall be a Person organized and existing under the laws of the UnitedStates of America or any state thereof and shall expressly assume, by anindenture supplemental hereto, executed and delivered to the Indenture Trustee,in form satisfactory to the Indenture Trustee, and prior to the later of (A) theFinal Note Payment Date of the Class A-2 Notes, and (B) the date onwhich all amounts due to the Insurer under all of the Transaction Documentshave been paid in full and the due and punctual payment of the principal of andinterest on all Class A Notes have been paid in full, in form satisfactoryto the Insurer;

 

(ii)                                  immediatelyafter giving effect to such transaction, no Default or Event of Default shallhave occurred and be continuing;

 

(iii)                               theRating Agency Condition shall have been satisfied with respect to suchtransaction;

 

(iv)                              theIssuer shall have received an Opinion of Counsel (and shall have deliveredcopies thereof to the Indenture Trustee and the Insurer) to the effect thatsuch transaction will not have any material adverse tax consequence to the Trust,any Noteholder or any Certificateholder;

 

(v)                                 anyaction as is necessary to maintain the lien and security interest created bythis Indenture, and the priority thereof, shall have been taken;

 

(vi)                              if,prior to the later of (A) the Final Note Payment Date of the Class A-2Notes and (B) the date on which all amounts due to the Insurer under allof the 

 

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TransactionDocument have been paid in full, the Insurer has given its prior writtenconsent; and

 

(vii)                           theIssuer shall have delivered to the Indenture Trustee and the Insurer an Issuer’sCertificate and an Opinion of Counsel each stating that such consolidation ormerger and such supplemental indenture comply with this Section 3.10(a) andthat all conditions precedent herein provided for relating to such transactionhave been complied with.

 

(b)                                 Priorto the Final Note Payment Date of the Class A-2 Notes, the Issuer shallnot convey or transfer all or substantially all of its properties or assets.

 

**Section 3.11.**                         [Reserved].

** **

**Section 3.12.**                         Successor.

** **

Upon any consolidation ormerger of the Issuer in accordance with Section 3.10(a), the Person formedby or surviving such consolidation or merger (if other than the Issuer) shallsucceed to, and be substituted for, and may exercise every right and power of,the Issuer under this Indenture and the other Transaction Documents with thesame effect as if such Person had been named as the Issuer herein.

 

**Section 3.13.**                         Servicer’s Obligation.

** **

The Issuer shall causethe Servicer to comply with its obligations under the Sale and AllocationAgreement and the Servicing Agreement.

 

**Section 3.14.**                         Guarantees, Loans, Advancesand Other Liabilities.

** **

Except as contemplated bythe Notes, this Indenture and the other Transaction Documents, the Issuer shallnot make any loan or advance or credit to, or guarantee (directly or indirectlyor by an instrument having the effect of assuring another’s payment or performanceon any obligation or capability of so doing or otherwise), endorse or otherwisebecome contingently liable, directly or indirectly, in connection with theobligations, stocks or dividends of, or own, purchase, repurchase or acquire(or agree contingently to do so) any stock, obligations, assets or securitiesof, or any other interest in, or make any capital contribution to, any otherPerson.

 

**Section 3.15.**                         Capital Expenditures.

** **

The Issuer shall not makeany expenditure (by long-term or operating lease or otherwise) for capitalassets (either realty or personalty) except as may be expressly permitted bythe Transaction Documents.

 

**Section 3.16.**                         Restricted Payments.

** **

The Issuer shall not,directly or indirectly, (a) make any distribution (by reduction of capitalor otherwise), whether in cash, property, securities or a combination thereof,to the Owner Trustee or any owner of a beneficial interest in the Issuer orotherwise with respect to any 

 

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ownership orequity interest or security in or of the Issuer or to the Servicer, (b) redeem,purchase, retire or otherwise acquire for value any such ownership or equityinterest or security or (c) set aside or otherwise segregate any amountsfor any such purpose; provided, however, that the Issuer maymake, or cause to be made, (i) payments to the Servicer, the IndentureTrustee and the Owner Trustee as contemplated by, and to the extent funds areavailable for such purpose under, the Sale and Allocation Agreement, and (ii) paymentsto the Depositor Account with respect to the Certificate issued in accordancewith the terms of the Trust Agreement, to the extent funds are available forsuch purpose pursuant to Section 3.5(d)(xi) of the Sale and AllocationAgreement.  The Issuer shall not,directly or indirectly, make payments to or distributions from the CollectionAccount except in accordance with the Sale and Allocation Agreement and theother Transaction Documents.

 

**Section 3.17.**                         Notice of Events of Default.

** **

The Issuer shall give theIndenture Trustee, the Insurer and the Rating Agencies prompt written notice ofeach Event of Default hereunder, each default on the part of the Seller or theServicer of its obligations under the Sale and Allocation Agreement.

 

**Section 3.18.**                         Removal of Administrator.

** **

For so long as any Notesare Outstanding, the Issuer shall not remove the Administrator without causeunless the Rating Agency Condition shall have been satisfied in connectiontherewith and the Insurer has previously consented in writing.

 

**Section 3.19.**                         Further Instruments andActs.

** **

Upon request of theIndenture Trustee or the Insurer, the Issuer shall execute and deliver suchfurther instruments and do such further acts as may be reasonably necessary orproper to carry out more effectively the purpose of this Indenture.

 

**Section 3.20.**                         Rule 144A Information.

** **

At any time when theIssuer is not subject to Section 13 or 15(d) of the Exchange Act andis not exempt from reporting pursuant to Rule 12g3-2(b) under theExchange Act, upon the request of any Class A Noteholder or Note Owner of aClass A Note, the Issuer shall promptly furnish or cause to be furnished Rule 144AInformation to such Noteholder or Note Owner or to a prospective purchaser of aClass A Note designated by such Class A Noteholder or Note Owner, inorder to permit compliance by such Noteholder or Note Owner with Rule 144Ain connection with the resale of such Class A Note.

 

**Section 3.21.**                         Perfection Representations,Warranties and Covenants.

** **

The perfectionrepresentation, warranties and covenants made by the Issuer and set forth on Schedule Ahereto shall be part of this Indenture for all purposes.

 

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**Article IVSatisfaction and Discharge**

** **

**Section 4.1.**                                Satisfaction andDischarge of Indenture.

** **

This Indenture shallcease to be of further effect with respect to the Notes except as to (a) rightsof registration of transfer and exchange, (b) substitution of mutilated,destroyed, lost or stolen Notes, (c) rights of Noteholders to receivepayments of principal thereof and interest thereon, (d) Sections 3.3,3.4, 3.5, 3.8, 3.10, 3.12, 3.13, 3.15and 3.16 and, (e) the rights, obligations and immunities of theIndenture Trustee hereunder (including the rights of the Indenture Trusteeunder Section 6.7 and the obligations of the Indenture Trusteeunder Section 4.3), and (f) the rights of Noteholders asbeneficiaries hereof with respect to the property so deposited with theIndenture Trustee payable to all or any of them, and the Indenture Trustee, ondemand of and at the expense of the Issuer, shall execute proper instrumentsacknowledging satisfaction and discharge of this Indenture with respect to theCollateral securing the Notes and the Notes, when:

 

(i)                                     either

 

(A)                              allNotes theretofore authenticated and delivered (other than (1) Notes thathave been destroyed, lost or stolen and that have been replaced or paid asprovided in Section 2.6 and (2) Notes for whose payment moneyhas theretofore been irrevocably deposited in trust or segregated and held intrust by the Issuer and thereafter repaid to the Issuer or discharged from suchtrust, as provided in Section 3.3) have been delivered to theIndenture Trustee for cancellation and the Policy has expired and has beenreturned to the Insurer for cancellation; or

 

(B)                                allNotes not theretofore delivered to the Indenture Trustee for cancellation havebecome due and payable and the Issuer has irrevocably deposited or caused to beirrevocably deposited with the Indenture Trustee, in trust, cash or directobligations of or obligations guaranteed by the United States of America (whichwill mature prior to the date needed), in an amount sufficient to pay anddischarge the entire indebtedness on each Class of Class A Notes whendue its respective Final Note Payment Date or Redemption Date (if the Notesshall have been called for redemption pursuant to Section 10.1), asthe case may be;

 

(ii)                                  theIssuer has paid or caused to be paid all other sums payable by the Issuerhereunder and under the other Transaction Documents;

 

(iii)                               theIssuer has delivered to the Indenture Trustee and the Insurer an Issuer’sCertificate, an Opinion of Counsel and (if required by the Indenture Trustee)an Independent Certificate from a firm of certified public accountants, eachmeeting the applicable requirements of Section 11.1(a) and,subject to Section 11.2, each stating that 

 

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all conditionsprecedent provided for in this Indenture relating to the satisfaction anddischarge of this Indenture have been complied with; and

 

(iv)                              theIssuer has delivered to the Indenture Trustee an Opinion of Counsel to theeffect that the satisfaction and discharge of this Indenture pursuant to this Section 4.1will not cause any Noteholder to be treated as having sold or exchanged any ofits Notes for purposes of Section 1001 of the Code.

 

**Section 4.2.**                                Satisfaction,Discharge and Defeasance of the Notes.

** **

(a)                                  Uponsatisfaction of the conditions set forth in subsection (b) below,the Issuer shall be deemed to have paid and discharged the entire indebtednesson all the Notes Outstanding, and the provisions of this Indenture, as itrelates to such Notes, shall no longer be in effect (and the Indenture Trustee,at the expense of the Issuer, shall execute proper instruments acknowledgingthe same), except as to:

 

(i)                                     therights of the Noteholders to receive, from the trust funds described in subsection (b)(i) hereof,payment of the principal of and interest on the Notes Outstanding at maturityof such principal or interest;

 

(ii)                                  theobligations of the Issuer with respect to the Notes under Sections 2.5, 2.6,3.2 and 3.3;

 

(iii)                               theobligations of the Issuer to the Indenture Trustee under Section 6.7;and

 

(iv)                              therights, powers, trusts and immunities of the Indenture Trustee hereunder andthe duties of the Indenture Trustee hereunder.

 

(b)                                 Thesatisfaction, discharge and defeasance of the Notes pursuant to subsection (a) ofthis Section 4.2 is subject to the satisfaction of all of thefollowing conditions:

 

(i)                                     theIssuer has deposited or caused to be deposited irrevocably (except as providedin Section 4.4) with the Indenture Trustee as trust funds in trust,specifically pledged as security for, and dedicated solely to, the benefit ofthe Noteholders, which, through the payment of interest and principal inrespect thereof in accordance with their terms will provide, not later than oneday prior to the due date of any payment referred to below, money in an amountsufficient, in the opinion of a nationally recognized firm of independentcertified public accountants expressed in a written certification thereofdelivered to the Indenture Trustee, to pay and discharge the entireindebtedness on the Notes Outstanding, for principal thereof and interestthereon to the date of such deposit (in the case of Notes that have become dueand payable) or to the maturity of such principal and interest, as the case maybe;

 

(ii)                                  suchdeposit will not result in a breach or violation of, or constitute an event ofdefault under, any Transaction Document or other agreement or instrument towhich the Issuer is bound;

 

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(iii)                               noEvent of Default has occurred and is continuing on the date of such deposit oron the ninety-first (91st) day after such date;

 

(iv)                              theIssuer has delivered to the Indenture Trustee and the Insurer an Opinion ofCounsel to the effect that the satisfaction, discharge and defeasance of theNotes pursuant to this Section 4.2 will not cause any Noteholder tobe treated as having sold or exchanged any of its Notes for purposes of Section 1001of the Code; and

 

(v)                                 theIssuer has delivered to the Indenture Trustee an Issuer’s Certificate and anOpinion of Counsel, each stating that all conditions precedent provided for inthis Indenture relating to the defeasance contemplated by this Section 4.2have been complied with; and

 

(vi)                              allamounts then owing to the Insurer have been paid.

 

**Section 4.3.**                                Application of TrustMoney.

** **

All monies deposited withthe Indenture Trustee pursuant to Section 4.1 shall be held intrust and applied by the Indenture Trustee, in accordance with the provisionsof the Notes and this Indenture, to the payment, either directly or through anyPaying Agent, as the Indenture Trustee may determine, to the Noteholders forthe payment or redemption of which such monies have been deposited with theIndenture Trustee, of all sums due and to become due thereon for principal andinterest, but such monies need not be segregated from other funds except to theextent required herein or in the Sale and Allocation Agreement or required bylaw.

 

**Section 4.4.**                                Repayment of MoniesHeld by Paying Agent.

** **

In connection with thesatisfaction and discharge of this Indenture with respect to the Notes, allmonies then held by any Paying Agent other than the Indenture Trustee under theprovisions of this Indenture with respect to such Notes shall, upon demand ofthe Issuer, be paid to the Indenture Trustee to be held and applied accordingto Section 3.3, and thereupon such Paying Agent shall be released from allfurther liability with respect to such monies.

 

**Section 4.5.**                                ContinuingObligations of Indenture Trustee.

** **

It is understood that theIndenture Trustee shall remain obligated to perform its duties to make paymentspursuant to Section 3.5(d) and Section 3.5(e) of the Saleand Allocation Agreement and Section 2.8 and Section 5.4(b) ofthis Indenture, notwithstanding anything to the contrary in this Article IVor elsewhere in this Indenture, until such time as all outstanding amounts havebeen paid pursuant to such sections.

 

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**Article VRemedies**

** **

**Section 5.1.**                                Events of Default.

** **

“*Event ofDefault*” means the occurrence of any one of the following events(whatever the reason for such event and whether such event shall be voluntaryor 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 anyadministrative or governmental body):

 

(a)                                  defaultin the payment of any interest on any Class A Note when the same becomesdue and payable;

 

(b)                                 defaultin the payment of any principal due and payable on any Class of the Class ANotes when the same becomes due and payable on the Final Note Payment Date forsuch Class;

 

(c)                                  defaultin the observance or performance of any material covenant or agreement of theIssuer, the Depositor or the Seller made in the Transaction Documents (otherthan a covenant or agreement a default in the observance or performance ofwhich is specifically dealt with elsewhere in this Section 5.1),and such default shall continue or not be cured for a period of thirty (30)days after there shall have been given, by registered or certified mail, to theIssuer by the Indenture Trustee or to the Issuer and the Indenture Trustee bythe Noteholders evidencing not less than 25% of the Class A Note Balanceor the Insurer (provided that no Insurer Default shall have occurred and becontinuing), a written notice specifying such default and requiring it to beremedied and stating that such notice is a notice of Default hereunder;

 

(d)                                 anyrepresentation or warranty of the Issuer, the Depositor or the Seller made inthe Transaction Documents or in any certificate delivered pursuant hereto or inconnection herewith proving to have been incorrect in any material respect asof the time when the same shall have been made, and the circumstance orcondition in respect of which such representation or warranty was incorrectshall not have been eliminated or otherwise cured for a period of thirty (30)days after there shall have been given, by registered or certified mail, to theIssuer by the Indenture Trustee or to the Issuer and the Indenture Trustee bythe Noteholders evidencing not less than 25% of the Class A Note Balanceor the Insurer (provided that no Insurer Default shall have occurred and becontinuing), a written notice specifying such incorrect representation orwarranty and requiring it to be remedied and stating that such notice is anotice of Default hereunder;

 

(e)                                  thefiling of a decree or order for relief by a court having jurisdiction in thepremises in respect of the Seller, the Issuer, the Depositor or any substantialpart of the Trust Estate in an involuntary case under any applicable federal orstate 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 ofthe Trust Estate, or ordering the winding-up or liquidation of the Issuer’saffairs, and such decree or order shall remain unstayed and in effect for aperiod of sixty (60) consecutive days;

 

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(f)                                    thecessation of a valid perfected first priority security interest in theContracts in favor of the Indenture Trustee which is not cured within theapplicable cure period;

 

(g)                                 themerger or consolidation (including any conveyance transaction) of the Issuerwith or into any Person regardless of the surviving entity, except as expresslypermitted hereunder;

 

(h)                                 [Reserved];

 

(i)                                     thecommencement by the Seller, the Depositor or the Issuer of a voluntary caseunder any applicable federal or state bankruptcy, insolvency or other similarlaw now or hereafter in effect, or the consent by the Seller, the Depositor orthe Issuer to the entry of an order for relief in an involuntary case under anysuch law, or the consent by the Seller, the Depositor or the Issuer to theappointment or taking possession by a receiver, liquidator, assignee,custodian, trustee, sequestrator or similar official of the Seller, theDepositor or the Issuer or for any substantial part of the Trust Estate, or themaking by the Seller, the Depositor or the Issuer of any general assignment forthe benefit of creditors, or the failure by the Seller, the Depositor or theIssuer generally to pay its debts as such debts become due, or the taking ofany action by the Seller, the Depositor or the Issuer in furtherance of any ofthe foregoing;

 

(j)                                     anEvent of Servicing Termination shall have occurred under the ServicingAgreement;

 

(k)                                  theSeller shall have defaulted on any payment required to be made by it under anymaterial credit agreement or other loan agreement pursuant to which it hasborrowed money;

 

(l)                                     adraw shall be made under the Policy;

 

(m)                               theInsurer shall have given notice that an Event of Default (as defined in theInsurance Agreement) has occurred and is continuing under the InsuranceAgreement;

 

(n)                                 theaverage Delinquency Ratio for any three Collection Periods: (i) exceeds5.20% during the period commencing in April 2005 through December 2005;(ii) exceeds 6.25% during the period commencing in January 2006 andending on May 2007; and (iii) exceeds 7.25% thereafter; and

 

(o)                                 theCumulative Net Loss Rate for any Collection Period indicated in the followingtable shall exceed the percentage corresponding thereto:

 
| **Collection Period** | ** ** | **Cumulative Net Loss  Rate** |
|-----------------------|------------|-------------------------------|
|                  |       |                          |
| April 2005       |       | 0.30%                         |
| May 2005         |       | 0.30%                         |
| June 2005        |       | 0.60%                         |
| July 2005        |       | 1.15%                         |
| August 2005      |       | 1.15%                         |

 

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| **Collection Period**              | ** ** | **Cumulative Net Loss  Rate** |
|------------------------------------|------------|-------------------------------|
| September 2005                |       | 2.05%                         |
| October 2005                  |       | 2.05%                         |
| November 2005                 |       | 2.95%                         |
| December 2005                 |       | 2.95%                         |
| January 2006                  |       | 3.85%                         |
| February 2006                 |       | 3.85%                         |
| March 2006                    |       | 4.75%                         |
| April 2006                    |       | 4.75%                         |
| May 2006                      |       | 4.75%                         |
| June 2006                     |       | 5.25%                         |
| July 2006                     |       | 5.25%                         |
| August 2006                   |       | 5.25%                         |
| September 2006                |       | 6.15%                         |
| October 2006                  |       | 6.15%                         |
| November 2006                 |       | 6.15%                         |
| December 2006                 |       | 6.85%                         |
| January 2007                  |       | 6.85%                         |
| February 2007                 |       | 6.85%                         |
| March 2007                    |       | 7.35%                         |
| April 2007                    |       | 7.35%                         |
| May 2007                      |       | 7.35%                         |
| June 2007                     |       | 7.75%                         |
| July 2007                     |       | 7.75%                         |
| August 2007                   |       | 7.75%                         |
| September 2007                |       | 8.35%                         |
| October 2007                  |       | 8.35%                         |
| November 2007                 |       | 8.35%                         |
| December 2007                 |       | 8.60%                         |
| January 2008                  |       | 8.60%                         |
| February 2008                 |       | 8.60%                         |
| March 2008                    |       | 8.75%                         |
| April 2008                    |       | 8.75%                         |
| May 2008                      |       | 8.75%                         |
| June 2008                     |       | 8.85%                         |
| July 2008                     |       | 8.85%                         |
| August 2008                   |       | 8.85%                         |
| September 2008                |       | 9.10%                         |
| October 2008                  |       | 9.10%                         |
| November 2008                 |       | 9.10%                         |
| December 2008  and thereafter |       | 9.25%                         |

 

The Issuer shall deliverto the Indenture Trustee, within five (5) days after the occurrence of anyevent that, with notice or the lapse of time or both, would become an Event ofDefault 

 

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under clause (c) or(d), written notice of such Default in the form of an Issuer’s Certificate, thestatus of such Default and what action the Issuer is taking or proposes to takewith respect to such Default.

 

**Section 5.2.**                                Acceleration ofMaturity; Rescission and Annulment.

** **

(a)                                  Ifno Insurer Default shall have occurred and be continuing and if an Event ofDefault shall have occurred and be continuing, then the Insurer shall have theright, but not the obligation, upon prior written notice to each Rating Agency,to declare the Notes to be immediately due and payable by written notice to theIssuer, the Servicer and the Indenture Trustee, and upon any such declarationthe unpaid principal amount of the Notes, together with accrued and unpaidinterest on each Class of Class A Notes through the date ofacceleration, shall become immediately due and payable.  The Indenture Trustee shall have nodiscretion with respect to the acceleration of the Notes under the foregoingcircumstances.  In the event of any suchacceleration of the Notes, the Indenture Trustee shall continue to make claimsunder the Policy with respect to the Class A Notes in accordance with theterms thereof.

 

(b)                                 Ifan Insurer Default has occurred and is continuing and an Event of Default hasoccurred and is continuing, then and in every such case the Indenture Trusteeor the Noteholders evidencing not less than 66 2/3% of the Class A NoteBalance may, upon prior written notice to each Rating Agency, declare the Notesto be immediately due and payable by written notice to the Issuer (and to theIndenture Trustee if given by Class A Noteholders), and upon any suchdeclaration the unpaid principal amount of the Notes, together with accrued andunpaid interest on each Class of Class A Notes through the date ofacceleration, shall become immediately due and payable.

 

Notwithstanding theforegoing, upon the occurrence of an Event of Default specified in Section 5.1(i) withrespect to the Issuer, the Notes shall become immediately due and payable,without declaration, notice or demand by or to any Person.

 

(c)                                  Atany time after a declaration of acceleration of maturity has been made andbefore a judgment or decree for payment of the amount due has been obtained bythe Indenture Trustee as hereinafter provided in this Article V,either (i) if the Class A Noteholders accelerated, the Class ANoteholders evidencing not less than 66 2/3% of the Class A Note Balance(with the prior written consent of the Insurer if the Insurer Default referredto in clause (b) above has been cured) or (ii) if the Insureraccelerated, the Insurer, by written notice to the Issuer and the IndentureTrustee, may rescind and annul such declaration and its consequences if:

 

(A)                              theIssuer has paid or deposited with the Indenture Trustee a sum sufficient to payall principal of and interest on each Class of Class A Notes and allother amounts that would then be due hereunder or upon the Class A Notesif the Event of Default giving rise to such acceleration had not occurred; and

 

(B)                                allEvents of Default, other than the nonpayment of the principal of the Class ANotes that has become due solely by such acceleration, have been cured orwaived as provided in Section 5.12.

 

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

 

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(d)                                 Ifan Event of Default has occurred and is continuing, the Insurer may (i) ifthe Notes have been accelerated in accordance with Section 5.2(a) or5.2(b) and not rescinded pursuant to Section 5.2(c),elect to prepay all or any portion of any Class of Class A Notes,plus accrued but unpaid interest thereon to the date of payment and (ii) terminateFISC as the servicer under the Servicing Agreement; provided, however, that the Insurer shallfulfill its obligations under the Policy.

 

**Section 5.3.**                                Collection ofIndebtedness and Suits for Enforcement by Indenture Trustee.

** **

(a)                                  If(i) default is made in the payment of any interest on any Class of Class ANotes when the same becomes due and payable, and such default continues for aperiod of five (5) Business Days, or (ii) default is made in thepayment of the principal of any Class of Class A Notes when the samebecomes due and payable, the Issuer shall pay to the Indenture Trustee, for thebenefit of the applicable Noteholders, the amount then due and payable on such Class ofClass A Notes for principal and, if applicable, interest, with interestupon the overdue principal at the applicable Note Rate and, to the extentpayment at such rate of interest shall be legally enforceable, upon overdueinstallments of interest at the applicable Note Rate and in addition theretosuch further amount as shall be sufficient to cover the costs and expenses ofcollection, including the reasonable compensation, expenses, disbursements andadvances of the Indenture Trustee and its agents and counsel and other amountsdue and owing to the Indenture Trustee pursuant to Section 6.7.

 

(b)                                 Ifthe Issuer shall fail forthwith to pay such amounts upon such demand, theIndenture Trustee, in its own name and as trustee of an express trust, may withthe written consent of the Insurer (provided that no Insurer Default shall haveoccurred and be continuing), and shall, at the direction of the Insurer(provided that no Insurer Default shall have occurred and be continuing),institute a Proceeding for the collection of the sums so due and unpaid, andmay prosecute such Proceeding to judgment or final decree, and may enforce thesame against the Issuer or any other obligor upon the Notes and collect in themanner provided by law out of the property of the Issuer or such other obligor,wherever situated, the monies adjudged or decreed to be payable.

 

(c)                                  Ifan Event of Default occurs and is continuing, the Indenture Trustee may, asmore particularly provided in Section 5.4, in its discretion,proceed to protect and enforce its rights and the rights of the Noteholders andthe Insurer by such appropriate Proceedings as the Indenture Trustee shall deemmost effective to protect and enforce such rights, whether for the specificenforcement of any covenant or agreement in this Indenture or in aid of theexercise of any power granted herein or to enforce any other proper remedy orlegal or equitable right vested in the Indenture Trustee by this Indenture orby law.

 

(d)                                 Ifthere shall be pending, relative to the Issuer or any other obligor upon theNotes or any Person having or claiming an ownership interest in the TrustEstate, Proceedings under Title 11 of the United States Code or any otherapplicable federal or state bankruptcy, insolvency or other similar law, or ifa receiver, assignee or trustee in bankruptcy or reorganization, liquidator,sequestrator or similar official shall have been appointed for or takenpossession of the Issuer or its property or such other obligor or Person, or ifthere shall be pending any other 

 

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comparablejudicial Proceedings relative to the Issuer or any other obligor upon theNotes, or to the creditors or property of the Issuer or such other obligor, theIndenture Trustee, irrespective of whether the principal of any Notes shallthen be due and payable as therein expressed or by declaration or otherwise andirrespective of whether the Indenture Trustee shall have made any demandpursuant to the provisions of this Section 5.3, shall be entitledand empowered, by intervention in such Proceedings or otherwise:

 

(i)                                     tofile and prove a claim or claims for the whole amount of principal andinterest, if any, owing and unpaid in respect of the Notes and to file suchother papers or documents as may be necessary or advisable in order to have theclaims of the Indenture Trustee (including any claim for reasonablecompensation to the Indenture Trustee and each predecessor Indenture Trustee,and their respective agents, attorneys and counsel, and all other amounts dueand owing to the Indenture Trustee pursuant to Section 6.7) and of theNoteholders allowed in such Proceedings;

 

(ii)                                  unlessprohibited by applicable law and regulations, to vote on behalf of theNoteholders in any election of a trustee, a standby trustee or Personperforming similar functions in any such Proceedings;

 

(iii)                               tocollect and receive any monies or other property payable or deliverable on anysuch claims and to pay all amounts received with respect to the claims of theNoteholders and of the Indenture Trustee on their behalf; and

 

(iv)                              tofile such proofs of claim and other papers or documents as may be necessary oradvisable in order to have the claims of the Indenture Trustee or theNoteholders allowed in any judicial proceedings relative to the Issuer, itscreditors and its property;

 

and any trustee,receiver, liquidator, custodian or other similar official in any suchProceeding is hereby authorized by each of the Noteholders to make payments tothe Indenture Trustee and, in the event that the Indenture Trustee shallconsent to the making of payments directly to the Noteholders, to pay to theIndenture Trustee such amounts as shall be sufficient to cover reasonablecompensation to the Indenture Trustee and each predecessor Indenture Trustee,and their respective agents, attorneys and counsel, and all other amounts dueand owing to the Indenture Trustee pursuant to Section 6.7.

 

(e)                                  Nothingherein contained shall be deemed to authorize the Indenture Trustee toauthorize or consent to or vote for or accept or adopt on behalf of anyNoteholder any plan of reorganization, arrangement, adjustment or compositionaffecting the Notes or the rights of any Holder thereof or to authorize theIndenture Trustee to vote in respect of the claim of any Noteholder in any suchproceeding except, as aforesaid, to vote for the election of a trustee inbankruptcy or similar Person.

 

(f)                                    Allrights of action and of asserting claims under this Indenture, or under any ofthe Notes, may be enforced by the Indenture Trustee without the possession ofany of the Notes or the production thereof in any trial or other Proceedingsrelative thereto, and any such action or Proceedings instituted by theIndenture Trustee shall be brought in its own name as trustee of an

 

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expresstrust, and any recovery of judgment, subject to the payment of the expenses,disbursements and compensation of the Indenture Trustee, each predecessorIndenture Trustee and their respective agents and attorneys, shall be for theratable benefit of the Noteholders.

 

(g)                                 Inany Proceedings brought by the Indenture Trustee (and also any Proceedingsinvolving the interpretation of any provision of this Indenture to which theIndenture Trustee shall be a party), the Indenture Trustee shall be held torepresent all the Noteholders, and it shall not be necessary to make anyNoteholder a party to any such Proceedings.

 

**Section 5.4.**                                Remedies.

** **

(a)                                  Ifan Event of Default has occurred and is continuing, the Indenture Trusteeshall, at the direction of the Insurer (if no Insurer Default has occurred andis continuing), or at the direction of the Class A Noteholders evidencingnot less than 66 2/3% of the Class A Note Balance (if an Insurer Defaulthas occurred and is continuing), take one or more of the following actions asso directed (subject to Section 5.5):

 

(i)                                     instituteProceedings in its own name and as trustee of an express trust for thecollection of all amounts then payable on the Class A Notes or under thisIndenture with respect thereto, whether by declaration or otherwise, enforceany judgment obtained, and collect from the Issuer and any other obligor uponthe Notes monies adjudged due;

 

(ii)                                  instituteProceedings from time to time for the complete or partial foreclosure of thisIndenture with respect to the Trust Estate;

 

(iii)                               exerciseany remedies of a secured party under the Relevant UCC and take any otherappropriate action under applicable law to protect and enforce the rights andremedies of the Indenture Trustee and the Class A Noteholders; or

 

(iv)                              sellthe Trust Estate or any portion thereof or rights or interest therein at one ormore public or private sales called and conducted in any manner permitted bylaw;

 

provided,however, that the Indenture Trustee may not sell or otherwise liquidatethe Trust Estate following an Event of Default unless: (A) if no InsurerDefault has occurred and is continuing, the Insurer so directs or consentsthereto; or if an Insurer Default has occurred, the Holders of 100% of the Class ANotes (excluding Class A Notes held by the Depositor, the Seller, theServicer or any of their respective Affiliates) consent thereto; (B) theproceeds of such sale or liquidation are sufficient to pay in full the Class ANotes and all accrued but unpaid interest on the outstanding Class A Notesand all amounts due to the Insurer under the Insurance Agreement and thePolicy; (C) if an Insurer Default has occurred and is continuing, theIndenture Trustee determines that the Trust Estate will not continue to providesufficient funds for the payment of principal of and interest on each Class ofClass A Notes as they would have become due if the Class A Notes hadnot been declared due and payable, and the Indenture Trustee obtains the consentof the Class A Noteholders evidencing not less than 66 2/3% of the Class ANote Balance (excluding Class A Notes held by the Depositor, the Seller,the Servicer or any of their respective Affiliates), or (D) if no InsurerDefault has occurred or is continuing, the Insurer makes the determinationspecified in clause (C).  In determiningsuch sufficiency or insufficiency with respect to clauses (B) and (C) above,the Indenture Trustee may, but need not,

 

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obtain and rely upon anopinion of an Independent investment banking or accounting firm of nationalreputation as to the feasibility of such proposed action and as to thesufficiency of the Trust Estate for such purpose.

 

(b)                                 (X)If the Indenture Trustee collects any money or property pursuant to this Section 5.4or (Y) if the Notes have been accelerated in accordance with Section 5.2,the Indenture Trustee shall, in the case of clause (X) from such money orproperty, or in the case of clause (Y) from all funds available to it, pay suchamounts in the following order of priority:

 

(i)                                     tothe Back-up Servicer, the Indenture Trustee, the Custodian and the OwnerTrustee, in its individual capacity, respectively, any unpaid or unreimbursedfees and any out-of-pocket expenses (including, but not limited to, attorneys’fees and transition expenses); provided that such expenses shall notexceed $50,000 in the aggregate per year and $100,000 in the total aggregate;

 

(ii)                                  tothe Servicer, all amounts due to the Servicer as compensation pursuant toSections 2.08 and 2.11 of the Servicing Agreement;

 

(iii)                               tothe Class A Note Payment Account, all accrued but unpaid interest on each Class ofClass A Notes, to be paid in accordance with Section 2.8(f)(i);

 

(iv)                              tothe Insurer, any insurance premiums due and payable to the Insurer;

 

(v)                                 tothe Class A Note Payment Account, the aggregate outstanding principalbalance of the Class A Notes, to be paid in accordance with Section 2.8(f)(i);

 

(vi)                              tothe Insurer, any unreimbursed payments under the Policy plus accrued intereston any such payments at the rate set forth in the Insurance Agreement and anyother amounts due the Insurer under the Insurance Agreement and the Policy;

 

(vii)                           to theServicer (so long as First Investors Servicing Corporation is not theServicer), any and all unpaid expenses incurred in connection with there-liening of the Financed Vehicles;

 

(viii)                        to the Class BNote Payment Account, the outstanding principal balance of the Class BNotes, to be paid in accordance with Section 2.8(f)(ii);

 

(ix)                                tothe Back-up Servicer, the Servicer, the Insurer, the Indenture Trustee, theCustodian and the Owner Trustee, in its individual capacity, respectively, anyother amounts due and unpaid to such party under this Indenture and the otherTransaction Documents; and

 

(x)                                   tothe Depositor Account any remaining amounts for distribution in accordance withSection 5.2 of the Trust Agreement.

 

The Indenture Trustee mayfix a record date and payment date for any payment to Noteholders pursuant tothis Section 5.4.  At leastfifteen (15) days before such record date, the Issuer shall 

 

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mail to each Noteholderand the Indenture Trustee a notice that states the record date, the paymentdate and the amount to be paid.

 

(c)                                  Whenthe Class A Notes have been paid in full, including all accrued and unpaidinterest owing thereon, all amounts owing the Insurer have been paid in fulland the Policy has been returned for cancellation, the rights of the Class ANoteholders under this Indenture and any other Transaction Document, including,without limitation, with rights with respect to the Trust Estate, shallautomatically vest in the Class B Noteholders.

 

**Section 5.5.**                                OptionalPreservation of the Contracts.

** **

If the Notes have beendeclared to be due and payable under Section 5.2 following an Event ofDefault, and such declaration and its consequences have not been rescinded andannulled, the Indenture Trustee may, but need not, elect to maintain possessionof the Trust Estate and apply proceeds as if there had been no declaration ofacceleration; provided, however, that the Total Available Funds shall beapplied in accordance with such declaration of acceleration in the mannerspecified in Sections 3.5(d), (e), (f) and (g) of the Sale andAllocation Agreement.  It is the desireof the parties hereto and the Noteholders that there be at all times sufficientfunds for the payment of principal of and, if applicable, interest on theNotes, and the Indenture Trustee shall take such desire into account whendetermining whether or not to maintain possession of the Trust Estate.  In determining whether to maintain possessionof the Trust Estate, the Indenture Trustee may, but need not, obtain and relyupon an opinion of an Independent investment banking or accounting firm ofnational reputation as to the feasibility of such proposed action and as to thesufficiency of the Trust Estate for such purpose.

 

**Section 5.6.**                                Limitation of Suits.

** **

No Holder of any Noteshall have any right to institute any Proceeding with respect to this Indentureor for the appointment of a receiver or trustee, or for any other remedyhereunder, unless:

 

(a)                                  suchHolder has previously given written notice to the Indenture Trustee of acontinuing Event of Default;

 

(b)                                 theNoteholders evidencing not less than 25% of the Class A Note Balance havemade written request to the Indenture Trustee to institute such Proceeding inrespect of such Event of Default in its own name as Indenture Trusteehereunder;

 

(c)                                  suchHolder or Holders have offered to the Indenture Trustee reasonable indemnityagainst the costs, expenses and liabilities to be incurred in complying withsuch request;

 

(d)                                 theIndenture Trustee for sixty (60) days after its receipt of such notice, requestand offer of indemnity has failed to institute such Proceedings;

 

(e)                                  nodirection inconsistent with such written request has been given to theIndenture Trustee during such 60-day period by the Noteholders evidencing not lessthan 51% of the Class A Note Balance; and

 

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(f)                                    anInsurer Default has occurred and is continuing.

 

It is understood andintended that no one or more Noteholders shall have any right in any mannerwhatever by virtue of, or by availing of, any provision of this Indenture toaffect, disturb or prejudice the rights of any other Noteholders or to obtainor to seek to obtain priority or preference over any other Noteholders or toenforce any right under this Indenture, except in the manner herein provided.

 

In the event theIndenture Trustee shall receive conflicting or inconsistent requests andindemnity from two or more groups of Noteholders, each evidencing less than 51%of the Class A Note Balance, the Indenture Trustee in its sole discretionmay determine what action, if any, shall be taken, notwithstanding any otherprovisions of this Indenture.

 

**Section 5.7.**                                Unconditional Rightsof Noteholders to Receive Principal and Interest.

** **

Notwithstanding any otherprovisions in this Indenture, the Holder of any Note shall have the right,which is absolute and unconditional, to receive payment of the principal ofand, with respect to the Class A Notes, interest, if any, on such Note onor after the respective due dates thereof expressed in such Note or in thisIndenture (or, in the case of redemption, on or after the Redemption Date) andto institute suit for the enforcement of any such payment, and such right shallnot be impaired without the consent of such Holder.

 

**Section 5.8.**                                Restoration ofRights and Remedies.

** **

If the Indenture Trustee,the Insurer or any Noteholder has instituted any Proceeding to enforce anyright or remedy under this Indenture and such Proceeding has been discontinuedor abandoned for any reason or has been determined adversely to the IndentureTrustee, the Insurer or such Noteholder, then and in every such case theIssuer, the Indenture Trustee, the Insurer and the Noteholders shall, subjectto any determination in such Proceeding, be restored severally and respectivelyto their former positions hereunder, and thereafter all rights and remedies ofthe Indenture Trustee and the Noteholders shall continue as though no suchProceeding had been instituted.

 

**Section 5.9.**                                Rights and RemediesCumulative Rights.

** **

No right or remedy hereinconferred upon or reserved to the Indenture Trustee, the Insurer or theNoteholders is intended to be exclusive of any other right or remedy, and everyright and remedy shall, to the extent permitted by law, be cumulative and inaddition to every other right and remedy given hereunder or now or hereafterexisting at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, orotherwise, shall not prevent the concurrent assertion or employment of anyother appropriate right or remedy.

 

**Section 5.10.**                         Delay or Omission Not aWaiver.

** **

No delay or omission ofthe Indenture Trustee, the Insurer or any Holder of any Note to exercise anyright or remedy accruing upon any Default or Event of Default shall impair anysuch right or remedy or constitute a waiver of any such Default or Event ofDefault or any 

 

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acquiescencetherein.  Every right and remedy given bythis Article V or by law to the Indenture Trustee, the Insurer or theNoteholders may be exercised from time to time, and as often as may be deemedexpedient, by the Indenture Trustee, the Insurer or the Noteholders, as thecase may be.

 

**Section 5.11.**                         Control by Noteholders.

** **

The Class ANoteholders evidencing not less than 51% of the Class A Note Balance shallhave the right to direct the time, method and place of conducting anyProceeding for any remedy available to the Indenture Trustee with respect tothe Notes or exercising any trust or power conferred on the Indenture Trustee; provided,however, that:

 

(a)                                  suchdirection shall not be in conflict with any rule of law or with thisIndenture;

 

(b)                                 subjectto the express terms of Section 5.4, any direction to the IndentureTrustee to sell or liquidate the Trust Estate shall be by the Class ANoteholders evidencing not less than 100% of the Class A Note Balance;

 

(c)                                  ifthe conditions set forth in Section 5.5 have been satisfied and theIndenture Trustee elects to retain the Trust Estate pursuant to such section,then any direction to the Indenture Trustee by the Noteholders evidencing lessthan 100% of the Class A Note Balance to sell or liquidate the TrustEstate shall be of no force and effect;

 

(d)                                 theIndenture Trustee may take any other action deemed proper by the IndentureTrustee that is not inconsistent with such direction; and

 

(e)                                  anInsurer Default shall have occurred and is continuing.

 

Notwithstanding therights of Noteholders set forth in this Section 5.11, subject to Section 6.1,the Indenture Trustee need not take any action that it reasonably believesmight involve it in costs, expenses and liabilities for which it will not beadequately indemnified or might materially and adversely affect the rights ofany Class A Noteholders not consenting to such action.

 

**Section 5.12.**                         Waiver of Past Defaults.

** **

Prior to the declarationof the acceleration of the maturity of the Notes as provided in Section 5.2,the Insurer (if no Insurer Default shall have occurred and be continuing) or theNoteholders evidencing not less than 51% of the Class A Note Balance, withthe consent of the Insurer (if no Insurer Default shall have occurred and becontinuing), may waive any past Default or Event of Default and itsconsequences except a Default or Event of Default (a) in the payment ofprincipal of or interest on any Class of Class A Notes or (b) inrespect of a covenant or provision hereof that cannot be amended, supplementedor modified without the consent of all the Holders.  Upon any such waiver, the Issuer, theIndenture Trustee, the Insurer and the Holders shall be restored to theirformer positions and rights hereunder, respectively, but no such waiver shallextend to any subsequent or other Default or Event of Default or impair anyright consequent thereto.  Upon any suchwaiver, such Default or Event of Default shall cease to exist and be deemed tohave been cured and not to have occurred, and any Event of Default arising 

 

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therefrom shall bedeemed to have been cured and not to have occurred, for every purpose of thisIndenture, but no such waiver shall extend to any subsequent or other Defaultor Event of Default or impair any right consequent thereto.

 

**Section 5.13.**                         Undertaking for Costs.

** **

All parties to thisIndenture agree, and each Holder of any Note by such Holder’s acceptancethereof shall be deemed to have agreed, that any court may in its discretionrequire, in any suit for the enforcement of any right or remedy under thisIndenture, or in any suit against the Indenture Trustee for any action taken,suffered or omitted by it as Indenture Trustee, the filing by any partylitigant in such suit of an undertaking to pay the costs of such suit, and thatsuch court may in its discretion assess reasonable costs, including reasonableattorneys’ fees, against any party litigant in such suit, having due regard tothe merits and good faith of the claims or defenses made by such partylitigant; provided, however, that the provisions of this Section 5.13shall not apply to (a) any suit instituted by the Indenture Trustee, (b) anysuit instituted by any Noteholder or group of Noteholders, in each case holdingNotes evidencing in the aggregate more than 10% of the Class A NoteBalance or (c) any suit instituted by any Noteholder for the enforcementof the payment of principal of or, with respect to the Class A Notes,interest on any Note on or after the respective due dates expressed in suchNote and in this Indenture (or, in the case of redemption, on or after theRedemption Date).

 

**Section 5.14.**                         Waiver of Stay or ExtensionLaws.

** **

The Issuer covenants (tothe extent that it may lawfully do so) that it shall not at any time insistupon, or plead or in any manner whatsoever, claim or take the benefit or advantageof, any stay or extension law wherever enacted, now or at any time hereafter inforce, that may affect the covenants or the performance of this Indenture, andthe Issuer (to the extent that it may lawfully do so) hereby expressly waivesall benefit or advantage of any such law, and covenants that it shall nothinder, delay or impede the execution of any power herein granted to theIndenture Trustee, but will suffer and permit the execution of every such poweras though no such law had been enacted.

 

**Section 5.15.**                         Action on Notes.

** **

The Indenture Trustee’sright to seek and recover judgment on the Notes or under this Indenture shallnot be affected by the seeking, obtaining or application of any other reliefunder or with respect to this Indenture. Neither the lien of this Indenture nor any rights or remedies of theIndenture Trustee or the Noteholders shall be impaired by the recovery of anyjudgment by the Indenture Trustee against the Issuer or by the levy of anyexecution under such judgment upon any portion of the Trust Estate or upon anyof the assets of the Issuer.  Any moneyor property collected by the Indenture Trustee shall be applied in accordancewith Section 5.4(b).

 

**Section 5.16.**                         Performance and Enforcementof Certain Obligations.

** **

(a)                                  Promptlyfollowing a request from the Indenture Trustee to do so, and at theAdministrator’s expense, the Issuer shall take all such lawful action as theIndenture Trustee may request to compel or secure the performance andobservance by the Servicer of its obligations to the Issuer under or inconnection with the Sale and Allocation Agreement or by the Seller and 

 

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theIssuer of each of its obligations under or in connection with the ServicingAgreement, and to exercise any and all rights, remedies, powers and privilegeslawfully available to the Issuer under or in connection with the Sale andAllocation Agreement to the extent and in the manner directed by the IndentureTrustee, including the transmission of notices of default on the part of theSeller or the Servicer thereunder and the institution of legal oradministrative actions or proceedings to compel or secure performance by theSeller or the Servicer of each of their obligations under the Sale and AllocationAgreement.

 

(b)                                 Ifan Event of Default has occurred and is continuing, the Indenture Trustee maywith prior written consent of the Insurer (provided that no Insurer Default hasoccurred and is continuing), and at the direction (which direction shall be inwriting or by telephone (confirmed in writing promptly thereafter)) of the Class ANoteholders evidencing not less than 66 2/3% of the Class A Note Balance(with the prior written consent of the Insurer, or, at the direction of theInsurer, in each case provided that no Insurer Default has occurred and iscontinuing) shall, exercise all rights, remedies, powers, privileges and claimsof the Issuer against the Servicer under or in connection with the Sale andAllocation Agreement or against the Servicer under or in connection with theServicing Agreement, including the right or power to take any action to compelor secure performance or observance by the Seller or the Servicer, as the casemay be, of each of their obligations to the Issuer thereunder and to give anyconsent, request, notice, direction, approval, extension or waiver under theSale and Allocation Agreement or the Servicing Agreement, as the case may be,and any right of the Issuer to take such action shall be suspended.

 

**Article VIThe Indenture Trustee**

** **

**Section 6.1.**                                Duties of IndentureTrustee.

** **

(a)                                  Ifan Event of Default has occurred and is continuing, the Indenture Trustee shallexercise the rights and powers vested in it by this Indenture and use the samedegree of care and skill in their exercise as a prudent person would exerciseor use under the circumstances in the conduct of such Person’s own affairs.

 

(b)                                 Exceptupon the occurrence and during the continuation of an Event of Default:

 

(i)                                     theIndenture Trustee undertakes to perform such duties and only such duties as arespecifically set forth in this Indenture and no implied covenants orobligations shall be read into this Indenture against the Indenture Trustee;and

 

(ii)                                  inthe absence of bad faith on its part, the Indenture Trustee may conclusivelyrely, as to the truth of the statements and the correctness of the opinionsexpressed therein, upon certificates or opinions furnished to the IndentureTrustee and, if required by the terms of this Indenture, conforming to the requirementsof this Indenture; provided, however, that the Indenture Trusteeshall examine the certificates and opinions to determine whether or not theyconform to the requirements of this Indenture.

 

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(c)                                  TheIndenture Trustee may not be relieved from liability for its own negligentaction, its own gross negligent failure to act or its own willful misconduct,except that:

 

(i)                                     thisparagraph does not limit the effect of paragraph (b) of this Section 6.1;

 

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

 

(iii)                               theIndenture Trustee shall not be liable with respect to any action it takes oromits to take in good faith in accordance with a direction received by itpursuant to Section 5.11.

 

(d)                                 Everyprovision of this Indenture that in any way relates to the Indenture Trustee issubject to paragraphs (a), (b), (c) and (g) ofthis Section 6.1.

 

(e)                                  TheIndenture Trustee shall not be liable for interest on any money received by itexcept as the Indenture Trustee may agree in writing with the Issuer.

 

(f)                                    Moneyheld in trust by the Indenture Trustee need not be segregated from other fundsexcept to the extent required by law or the terms of this Indenture or the Saleand Allocation Agreement.

 

(g)                                 Noprovision of this Indenture shall require the Indenture Trustee to expend orrisk its own funds or otherwise incur financial liability in the performance ofany of its duties hereunder or in the exercise of any of its rights or powershereunder if the Indenture Trustee shall have reasonable grounds to believethat repayment of such funds or adequate indemnity against such risk orliability is not reasonably assured or provided to it.

 

(h)                                 Everyprovision of this Indenture relating to the conduct or affecting the liabilityof or affording protection to the Indenture Trustee shall be subject to theprovisions of this Section 6.1.

 

(i)                                     TheIndenture Trustee shall not be charged with knowledge of any Event of Defaultunless either (i) a Responsible Officer shall have actual knowledge ofsuch Event of Default or (ii) written notice of such Event of Default shallhave been given to the Indenture Trustee in accordance with the provisions ofthis Indenture.

 

**Section 6.2.**                                Rights of IndentureTrustee.

** **

(a)                                  TheIndenture Trustee may rely on any document believed by it to be genuine and tohave been signed or presented by the proper Person.

 

(b)                                 Beforethe Indenture Trustee acts or refrains from acting, it may require an Issuer’sCertificate or an Opinion of Counsel. The Indenture Trustee shall not be liable for any action it takes oromits to take in good faith in reliance on an Issuer’s Certificate or Opinionof Counsel unless it is proved that the Indenture Trustee was negligent in suchreliance.

 

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(c)                                  TheIndenture Trustee may execute any of the trusts or powers hereunder or performany duties hereunder either directly or by or through agents or attorneys or acustodian or nominee, and the Indenture Trustee shall not be responsible forany misconduct or negligence on the part of, or for the supervision of, anysuch agent, attorney, custodian or nominee appointed with due care by ithereunder.

 

(d)                                 TheIndenture Trustee shall not be liable for any action it takes or omits to takein good faith which it believes to be authorized or within its rights orpowers; provided, however, that such action or omission by the IndentureTrustee does not constitute willful misconduct, negligence or bad faith.

 

(e)                                  TheIndenture Trustee may consult with counsel, and the advice or opinion ofcounsel with respect to legal matters relating to this Indenture and the Notesshall be full and complete authorization and protection from liability inrespect to any action taken, omitted or suffered by it hereunder in good faithand in accordance with the advice or opinion of such counsel.

 

(f)                                    TheIndenture Trustee shall be under no obligation to exercise any of the rights orpowers vested in it by this Indenture at the request or direction of any of theNoteholders pursuant to this Indenture, unless such Noteholders shall haveoffered to the Indenture Trustee reasonable security or indemnity against thecosts, expenses and liabilities which might be incurred by it in compliancewith such request or direction.

 

(g)                                 TheIndenture Trustee shall not be bound to make any investigation into the factsor matters stated in any resolution, certificate, statement, instrument,opinion, report, notice, request, direction, consent, order, bond, debenture orother paper or document, but the Indenture Trustee, in its discretion, may makesuch further inquiry or investigation into such facts or matters as it may seefit, and, if the Indenture Trustee shall determine to make such further inquiryor investigation, it shall be entitled to examine the books, records andpremises of the Issuer, personally or by agent or attorney.

 

(h)                                 Exceptwhere the Transaction Documents specifically state otherwise, the IndentureTrustee, provided it has sent out notices in accordance with the applicableTransaction Document and is otherwise acting in accordance with the TransactionDocuments, may act as directed by the majority of the outstanding Noteholdersresponding in writing to such request for amendment or written direction; provided,however, that the Noteholders representing at least 51% of the Class ANote Balance as of the time such voting response is due back to the IndentureTrustee must have responded in writing to the Indenture Trustee’s notice toamend or for written direction.  Inaddition, the Indenture Trustee shall not have any liability to any Noteholderor Note Owner with respect to any action taken pursuant to such notice if theNoteholder or Note Owner does not respond to such notice within the time periodset forth in such notice.  By acceptanceof a Note, each Noteholder and Note Owner is deemed to agree to the foregoingprovisions.

 

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**Section 6.3.**                                Individual Rights ofIndenture Trustee.

** **

The Indenture Trustee, inits individual or any other capacity, may become the owner or pledgee of Notesand may otherwise deal with the Issuer or its Affiliates with the same rightsit would have if it were not Indenture Trustee. Any Paying Agent, Note Registrar, co-registrar or co-paying agenthereunder may do the same with like rights.

 

**Section 6.4.**                                Indenture Trustee’sDisclaimer.

** **

The Indenture Trustee (a) shallnot be responsible for, and makes no representation as to, the validity oradequacy of this Indenture or the Notes and (b) shall not be accountablefor the Issuer’s use of the proceeds from the Notes or responsible for anystatement of the Issuer in this Indenture or in any document issued inconnection with the sale of the Notes or in the Notes other than the IndentureTrustee’s certificate of authentication.

 

**Section 6.5.**                                Notice of Default.

** **

If a Default occurs andis continuing and if it is known to a Responsible Officer of the IndentureTrustee, the Indenture Trustee shall mail to each Noteholder notice of suchDefault within ninety (90) days after it occurs.  Except in the case of a Default in payment ofprincipal of or interest, as applicable, on any Note (including paymentspursuant to the mandatory redemption provisions of such Note), the IndentureTrustee may withhold the notice if and so long as a committee of itsResponsible Officers in good faith determines that withholding the notice is inthe interests of Noteholders.

 

**Section 6.6.**                                Reports by IndentureTrustee to Holders.

** **

(a)                                  TheIndenture Trustee shall deliver, within a reasonable period of time after theend of each calendar year, to each Person who at any time during such calendaryear was a Noteholder, such information as may be required to enable suchPerson to prepare its federal and state income tax returns.

 

(b)                                 TheIndenture Trustee shall deliver, within a reasonable period of time after theend of each calendar year, to all Noteholders and the Insurer a brief reportrelating to (i) its eligibility and qualification to continue as IndentureTrustee pursuant to the terms of this Indenture, (ii) any amounts advancedby it under this Indenture, (iii) the amount, interest rate and maturitydate of any material indebtedness owing by the Issuer to the Indenture Trusteein its individual capacity, (iv) the property and funds physically held bythe Indenture Trustee and (v) any action taken by the Indenture Trusteethat materially affects the Notes which has not been previously reported.

 

**Section 6.7.**                                Compensation andIndemnity.

** **

(a)                                  TheIssuer shall pay to the Indenture Trustee from time to time reasonablecompensation for its services in accordance with Section 3.5(d) ofthe Sale and Allocation Agreement and the Indenture Trustee Fee Letter and, tothe extent such amounts are not promptly paid by the Issuer, the Issuer shallcause the Administrator to pay such amounts in accordance with theAdministration Agreement.  The IndentureTrustee’s compensation shall not 

 

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belimited by any law on compensation of a trustee of an express trust.  The Issuer shall, or shall cause theAdministrator to, reimburse the Indenture Trustee for all expenses reasonablyincurred or made by it, including costs of collection, in addition to thecompensation for its services; provided, however, that neither the Issuer northe Administrator need reimburse the Indenture Trustee for any expense incurredthrough the Indenture Trustee’s willful misconduct, negligence, or badfaith.  Such expenses shall include thereasonable compensation and expenses, disbursements and advances of theIndenture Trustee’s agents, counsel, accountants and experts.  The Issuer shall, or shall cause theAdministrator to, indemnify the Indenture Trustee and the Custodian against anyand all loss, liability or expense (including attorneys’ fees) (collectively,together with the amounts specified as “Losses” in Section 6A.3(d),the “*Losses*”) incurred by it inconnection with the administration of this trust and the performance of itsduties hereunder; provided, however, that neither the Issuer northe Administrator need indemnify the Indenture Trustee or the Custodian for anysuch loss, liability or expense incurred through the Indenture Trustee’s orCustodian’s willful misconduct, negligence, or bad faith, as applicable.  The Indenture Trustee or Custodian shallnotify the Issuer and the Administrator promptly of any claim for which it mayseek indemnity.  Any failure by theIndenture Trustee or the Custodian to so notify the Issuer and theAdministrator shall not, however, relieve the Issuer or the Administrator ofits obligations hereunder.  The Issuershall, or shall cause the Servicer to, defend any such claim, and the IndentureTrustee or the Custodian, as applicable, may have separate counsel and theIssuer shall, or shall cause the Servicer to, pay the fees and expenses of suchcounsel.  Notwithstanding the foregoing,Losses shall be paid pursuant to this Section 6.7 by the Issuersolely from amounts in excess of funds necessary to pay all outstandinginterest and principal due to the Noteholders and all other amounts payable inaccordance with the priorities set forth in Section 3.5(d) of theSale and Allocation Agreement and shall in any case be nonrecourse as to theIssuer and, to the extent funds are not so available to pay any Losses when dueand owing, the claims relating thereto shall not constitute a claim (as definedin Section 101 of Title 11 of the United States Bankruptcy Code) againstthe Issuer but shall continue to accrue. Each party hereto agrees that the payment of any claim of any such partyin respect of Losses payable by the Issuer shall be subordinated to the paymentin full of all outstanding interest and principal due to each Class of Class ANoteholders.

 

(b)                                 Notwithstandingthe foregoing, the Indenture Trustee and the Custodian will not be liable:

 

(i)                                     forany error of judgment made by it in good faith unless it is proved that theIndenture Trustee or the Custodian, as applicable, was negligent inascertaining the pertinent facts;

 

(ii)                                  forany action it takes or omits to take in good faith in accordance withdirections received by it from the requisite percentage of Noteholders inaccordance with the terms herein or in the other applicable TransactionDocuments; or

 

(iii)                               forinterest on any money received by the Indenture Trustee except as the IndentureTrustee and the Issuer may agree in writing.

 

(c)                                  TheIssuer’s payment obligations to the Indenture Trustee pursuant to this Section 6.7shall survive the resignation or removal of the Indenture Trustee and thedischarge of this 

 

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Indenture.  When the Indenture Trustee incurs expensesafter the occurrence of a Default specified in Section 5.1(e) or(i) with respect to the Issuer, the expenses are intended toconstitute expenses of administration under Title 11 of the United States Codeor any other applicable federal or state bankruptcy, insolvency or similar law.

 

**Section 6.8.**                                Replacement ofIndenture Trustee.

** **

(a)                                  Noresignation or removal of the Indenture Trustee, and no appointment of asuccessor Indenture Trustee, shall become effective until either (i) theacceptance of appointment by the successor Indenture Trustee acceptable to theInsurer and payment of fees and expenses owed to the outgoing Indenture Trusteepursuant to this Section 6.8 and Section 6.7 or (ii) theNotes have been paid and discharged in full in accordance with Section 4.2of this Indenture and all amounts received, if any, in connection with thepayment and discharge of the Notes have been distributed to theNoteholders.  The Indenture Trustee mayresign at any time by so notifying the Issuer and the Insurer.  The Insurer, provided an Insurer Defaultshall not have occurred and be continuing, or the Noteholders evidencing notless than 51% of the Class A Note Balance (with the prior written consentof the Insurer (provided that no Insurer Default has occurred and iscontinuing)) may remove the Indenture Trustee without cause by so notifying theIndenture Trustee and the Issuer and shall appoint a successor IndentureTrustee.  The Issuer shall remove theIndenture Trustee if:

 

(A)                              theIndenture Trustee fails to comply with Section 6.10;

 

(B)                                anInsolvency Event occurs with respect to the Indenture Trustee;

 

(C)                                areceiver or other public officer takes charge of the Indenture Trustee or itsproperty; or

 

(D)                               theIndenture Trustee otherwise becomes incapable of acting.

 

If (a) the IndentureTrustee resigns or is removed, (b) the Class A Noteholders fail toappoint a successor Indenture Trustee acceptable to the Insurer (provided thatno Insurer Default has occurred and is continuing) following the removal of theIndenture Trustee without cause or (c) if a vacancy exists in the officeof Indenture Trustee for any reason (the Indenture Trustee in such event beingreferred to herein as the retiring Indenture Trustee), the Issuer shallpromptly appoint a successor Indenture Trustee acceptable to the Insurer(provided that no Insurer Default has occurred and is continuing).

 

(b)                                 Anysuccessor Indenture Trustee shall deliver a written acceptance of itsappointment to the retiring Indenture Trustee, the Insurer and the Issuer.  Upon delivery of such written acceptance, theresignation or removal of the retiring Indenture Trustee shall become effectiveand the successor Indenture Trustee shall have all the rights, powers andduties of the Indenture Trustee under this Indenture.  The successor Indenture Trustee shall mail anotice of its succession to the Noteholders. The retiring Indenture Trustee shall promptly transfer all property heldby it as Indenture Trustee to the successor Indenture Trustee.

 

(c)                                  Ifa successor Indenture Trustee does not take office within sixty (60) days afterthe retiring Indenture Trustee resigns or is removed, the retiring IndentureTrustee, the Issuer or 

 

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theNoteholders evidencing not less than 51% of the Class A Note Balance maypetition any court of competent jurisdiction for the appointment of a successorIndenture Trustee.  If the IndentureTrustee fails to comply with Section 6.10, any Noteholder maypetition any court of competent jurisdiction for the removal of the IndentureTrustee and the appointment of a successor Indenture Trustee.

 

(d)                                 Notwithstandingthe replacement of the Indenture Trustee pursuant to this Section 6.8, theIssuer’s and the Administrator’s obligations under Section 6.7shall continue for the benefit of the retiring Indenture Trustee.

 

**Section 6.9.**                                Successor IndentureTrustee.

** **

(a)                                  Ifthe Indenture Trustee consolidates with, merges or converts into, or transfersall or substantially all its corporate trust business or assets to, anothercorporation or banking association, the resulting, surviving or transfereecorporation or banking association without any further act shall be thesuccessor Indenture Trustee; provided, however, that suchcorporation or banking association must be otherwise qualified and eligibleunder Section 6.10.  TheIndenture Trustee shall provide the Rating Agencies and the Insurer with priorwritten notice of any such transaction.

 

(b)                                 Ifat the time such successor or successors by consolidation, merger or conversionto the Indenture Trustee shall succeed to the trusts created by this Indentureany of the Notes shall have been authenticated but not delivered, any suchsuccessor to the Indenture Trustee may adopt the certificate of authenticationof any predecessor trustee and deliver such Notes so authenticated, and in caseat that time any of the Notes shall not have been authenticated, any suchsuccessor to the Indenture Trustee may authenticate such Notes either in thename of any predecessor trustee or in the name of the successor to theIndenture Trustee.  In all such casessuch certificates shall have the full force which the Notes or this Indentureprovide that the certificate of the Indenture Trustee shall have.

 

**Section 6.10.**                         Eligibility;Disqualification.

** **

(a)                                  Notwithstandingany other provisions of this Indenture, at any time, for the purpose of meetingany legal requirement of any jurisdiction in which any part of the Trust Estatemay at the time be located, the Indenture Trustee shall have the power and mayexecute and deliver an instrument to appoint one or more Persons to act as aco-trustee or co-trustees, jointly with the Indenture Trustee, or separatetrustee or separate trustees, of all or any part of the Trust Estate, and tovest in such Person or Persons, in such capacity and for the benefit of theNoteholders, such title to the Trust Estate, or any part hereof, and, subjectto the other provisions of this Section 6.10, such powers, duties,obligations, rights and trusts as the Indenture Trustee may consider necessaryor desirable.  No co-trustee or separatetrustee under this Indenture shall be required to meet the terms of eligibilityas a successor trustee under this Section 6.10 and no notice of theappointment of any co-trustee or separate trustee shall be required under Section 6.8.

 

(b)                                 Eachseparate trustee and co-trustee shall, to the extent permitted by law, beappointed and act subject to the following provisions and conditions:

 

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(i)                                     allrights, powers, duties and obligations conferred or imposed upon the IndentureTrustee shall be conferred or imposed upon and exercised or performed by theIndenture Trustee and such separate trustee or co-trustee jointly (it beingunderstood that such separate trustee or co-trustee shall not be authorized toact separately without the Indenture Trustee joining in such act), except tothe extent that under any law of any jurisdiction in which any particular actor acts are to be performed the Indenture Trustee shall be incompetent orunqualified to perform such act or acts, in which event such rights, powers,duties and obligations (including the holding of title to the Trust Estate orany portion thereof in any such jurisdiction) shall be exercised and performedsingly by such separate trustee or co-trustee, but solely at the direction ofthe Indenture Trustee;

 

(ii)                                  notrustee under this Indenture shall be personally liable by reason of any act oromission of any other trustee under this Indenture; and

 

(iii)                               theIndenture Trustee may at any time accept the resignation of or remove anyseparate trustee or co-trustee.

 

(c)                                  Anynotice, request or other writing given to the Indenture Trustee shall be deemedto have been given to each of the then separate trustees and co-trustees aseffectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shallrefer to this Indenture and the conditions of this Article VI.  Each separate trustee and co-trustee, uponits acceptance of the trusts conferred, shall be vested with the estates orproperty specified in its instrument of appointment, either jointly with theIndenture Trustee or separately, as may be provided therein, subject to all theprovisions of this Indenture, specifically including every provision of thisIndenture relating to the conduct of, affecting the liability of, or affordingprotection to, the Indenture Trustee. Each such instrument shall be filed with the Indenture Trustee.

 

(d)                                 Anyseparate trustee or co-trustee may at any time constitute the Indenture Trusteeits agent or attorney-in-fact with full power and authority, to the extentpermitted by law, to do any lawful act under or in respect of this Indenture onits behalf and in its name.  If anyseparate trustee or co-trustee shall die, become incapable of acting, resign orbe removed, all of its estates, properties, rights, remedies and trusts shallvest in and be exercised by the Indenture Trustee, to the extent permitted bylaw, without the appointment of a new or successor trustee.

 

(e)                                  TheIndenture Trustee or its parent shall have a combined capital, surplus andundivided profits of at least $50,000,000 as set forth in its most recentpublished annual report of condition and shall have a long-term debt rating ofinvestment grade by each of the Rating Agencies or shall otherwise beacceptable to each of the Rating Agencies and the Insurer (provided that noInsurer Default has occurred and is continuing).

 

**Article VI-A**

 

**Section 6A.1****                          Possessionof Contract Files by the Custodian.**

 

(a)                                  Deliveryof Contract Files.  The Issuer herebycovenants and agrees with the Indenture Trustee to deliver or cause to bedelivered to the Custodian all Contract Files (i) related to Contractssold to the Issuer on the Closing Date no later than the Closing Date and (ii) related

 

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to Contracts soldto the Issuer on an Additional Contract Purchase Date, no later than suchAdditional Contract Purchase Date.  TheCustodian shall continuously hold the Contract Files (i) in trust for, andas bailee of, the Indenture Trustee and as bailee for the Issuer for purposesof establishing the Issuer’s ownership thereof, (ii) for purposes ofperfecting the Indenture Trustee’s security interest therein, to the extentavailable under applicable law, for the benefit of the Noteholders and theInsurer, and establishing the Issuer’s ownership thereof subject to suchsecurity interest, (iii) to restrict the possession thereof by any otherperson except as permitted in accordance with the terms of this Article VI-A,and (iv) subject to and in accordance with the terms and provisions ofthisArticle VI-A.

 

(b)                                 Subjectto the terms and conditions hereof, the Indenture Trustee and the Issuer herebyappoint Wells Fargo Bank, National Association, as Custodian, and Wells FargoBank, National Association hereby accepts such appointment, to act as custodianand bailee of the Issuer and the Indenture Trustee, for the benefit of theNoteholders and the Insurer, for purposes of Article 9 of the RelevantUCC, to maintain custody of the Contract Files until the Servicer shall havedelivered a release with respect to any such Contract Files in accordance withthe terms of the Servicing Agreement.

 

(c)                                  TheCustodian will promptly report to the Indenture Trustee and the Insurer anyfailure on its part to hold the Contract Files as herein provided and promptlytake appropriate action to remedy any such failure.

 

(d)                                 TheCustodian shall (i) maintain in effect a fidelity bond and errors andomissions insurance, affording coverage to such employees, directors, officersand other Persons acting on the Custodian’s behalf and in an amount customaryfor custodians of automobile loans similar to the Contracts or (ii) self-insureat levels and in a manner acceptable to the Insurer.

 

(e)                                  Custody.  All Contract Files held by the Custodianunder this Indenture shall be placed by the Issuer in a separate file for eachContract File, properly fastened or secured.

 

(f)                                    Inventoryof Contract Files.  At the time ofdelivery by or on behalf of the Issuer to the Custodian of any Contract File orother documents related to a Contract, the Issuer shall also deliver a list inan electronic format acceptable to the Custodian (the “File Number List”) ofContract File numbers (the “File Numbers”). The Custodian shall check the File Numbers of the Contract Filesdelivered pursuant to this Indenture and certify to the Seller, the Insurer,the Issuer and the Indenture Trustee in writing within 48 hours after deliveryof the File Number List, that it has received all the Contract Filescorresponding to the File Number List. If upon examination of the Contract Files, the Custodian determines thatit does not have all the Contract Files on the File Number List, the Custodianshall promptly give written notice of the same to the Indenture Trustee, theInsurer, the Issuer and the Seller.

 

(g)                                 Possessionof Contract Files.  Without anylimitation of Section 6A.1(a) or (b) hereof, following theCustodian’s receipt of each Contract File, the Custodian shall retainpossession and custody thereof, subject to the terms of this Indenture, for theexclusive benefit of, in trust for, and as bailee of, the Indenture Trustee andfor purposes (i) of perfecting the Indenture Trustee’s security interesttherein, to the extent available under applicable law, for the benefit of theNoteholders and the Insurer and as bailee of the Issuer for purposes ofestablishing 

 

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the Issuer’sownership thereof and (ii) of restricting the possession thereof by anyperson except as permitted in accordance with the terms of this Article, untiland unless such security interest in any Contract File is released pursuant tothe terms of Section 6A.2 hereof. Upon such receipt the Custodian shall also make appropriate notations inthe Custodian’s books and records reflecting that the Contract File has beenpledged to the Indenture Trustee for the benefit of the Noteholders and theInsurer and that the Indenture Trustee has acquired and holds a securityinterest therein.  Notwithstanding anyother provisions of this Indenture, the Custodian shall not at any timeexercise or seek to enforce any claim, right or remedy, including any statutoryor common law rights of set-off, that it might otherwise have against all orany of the Contract Files or related documents or the proceeds thereof.

 

**Section 6A.2****                          Releaseof Contract Files by the Custodian.**

 

(a)                                  TheCustodian shall promptly release any Contract File then held by it to theServicer upon receipt of (i) a written request for release of such ContractFile signed by an Authorized Officer of the Servicer in the form attachedhereto as Exhibit D or (ii) an email request by an AuthorizedOfficer of the Servicer containing the information described in Exhibit D,followed by a signed copy of such Exhibit D; provided, however,that the Custodian shall be deemed to have received proper instructions withrespect to the Contract Files upon its receipt of such a written or emailedrequest from an Authorized Officer of the Servicer.  “Authorized Officer of the Servicer” shallmean an officer certified by the Secretary of the Servicer as an officer who isauthorized to give instructions to the Custodian as set forth on a certificatedelivered to the Custodian, the Issuer, the Insurer and the Indenture Trusteeon the Closing Date or on any such subsequent certificate delivered to theCustodian, the Issuer, the Insurer and the Indenture Trustee.

 

(b)                                 TheCustodian shall promptly deliver to the Indenture Trustee or its designee anyor all Contract Files in the Custodian’s custody upon the written request of anAuthorized Officer of the Indenture Trustee. The Indenture Trustee shall provide the Issuer, the Insurer and theServicer with a copy of any such request delivered to the Custodian.  Written instructions as to the method ofshipment and shipper(s) the Custodian is directed to utilize in connection withthe delivery of Contract Files in the performance of the Custodian’s dutieshereunder shall be delivered by the Indenture Trustee to the Custodian prior toany shipment of Contract Files pursuant to the request of Indenture Trusteehereunder.  The Indenture Trustee willarrange for the provision of such services at the cost and expense of theIssuer (or, at the Custodian’s option, the Custodian shall be reimbursed by theIssuer for all costs and expenses incurred by the Custodian consistent withsuch instructions (it being understood that any such reimbursement shall bepaid in accordance with the priorities set forth in Section 3.5(d) ofthe Sale and Allocation Agreement)) and will maintain such insurance againstloss or damage to the Contract Files as the Indenture Trustee and the Servicerreasonably deem appropriate.  “AuthorizedOfficer of the Indenture Trustee” shall mean an officer certified by theSecretary of the Indenture Trustee as an officer who is authorized to giveinstructions to the Custodian as set forth on a certificate delivered to theCustodian, the Issuer and the Insurer on the Closing Date or on any suchsubsequent certificate delivered to the Custodian, the Issuer and the Insurer.

 

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**Section 6A.3****                          Regardingthe Custodian.**

 

(a)                                  TheCustodian undertakes to perform only such duties as are expressly set forthherein.

 

(b)                                 TheCustodian may rely and shall be protected in acting or refraining from actingupon any written notice, instruction or request furnished to it hereunder andbelieved by it to be genuine and to have been signed or presented by the properparty or parties.  The Custodian shall beunder no duty to inquire into or investigate the validity, accuracy or contentof any such document.  The Custodianshall have no duty to verify the authenticity, genuineness or conformity to therequirements of this Indenture of any Contract Files or related documentsdelivered to it hereunder, or to determine whether the materials included inany Contract File conform to the requirements hereof.

 

(c)                                  TheCustodian shall not be liable for any action taken or omitted by it in goodfaith unless a court of competent jurisdiction determines that the Custodian’swillful misconduct, gross negligence or bad faith was the primary cause of anyloss to the Issuer, the Insurer or the Indenture Trustee.  In the administration of the custodialaccount hereunder, the Custodian may execute any of its powers and perform itsduties hereunder directly or through agents or attorneys and may consult withcounsel, accountants and other skilled persons to be selected and retained byit.  The Custodian shall not be liablefor anything done, suffered or omitted in good faith by it in accordance withthe advice of counsel.

 

(d)                                 TheIssuer agrees to indemnify and hold the Custodian and its directors, officers,agents and employees (collectively the “*Indemnitees*”)harmless from and against any and all claims, liabilities, losses, damages,fines, penalties, and expenses, including out-of-pocket and incidental expensesand legal fees and expenses (collectively, together with the amounts specifiedas “Losses” pursuant to Section 6.7(a), the “*Losses*”)that may be imposed on, incurred by, or asserted against, the Indemnitees orany of them for following any instructions or other directions upon which theCustodian is authorized to rely pursuant to the terms of this Indenture (itbeing understood that such Losses shall be paid pursuant to Section 3.5(d) ofthe Sale and Allocation Agreement).

 

(e)                                  Inaddition to and not in limitation of paragraph (d) immediatelyabove, the Issuer also agrees to indemnify and hold the Indemnitees and each ofthem harmless from and against any and all Losses that may be imposed on,incurred by, or asserted against, the Indemnitees or any of them in connectionwith or arising out of the Custodian’s performance under this Indenture,provided the Indemnitees have not acted with gross negligence or bad faith orengaged in willful misconduct or breach of contract (it being understood thatsuch Losses shall be paid pursuant to Section 3.5(d) of the Sale andAllocation Agreement).

 

(f)                                    Theduties and responsibilities of the Custodian hereunder shall be determinedsolely by the express provisions of this Indenture, and no other or furtherduties or responsibilities shall be implied. The Custodian shall not have any liability under, nor duty to inquireinto the terms and provisions of, any agreement or instructions, other than asspecifically required by this Indenture.

 

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(g)                                 TheCustodian shall not incur any liability for following the instructions hereincontained or expressly provided for, or written instructions given by theparties hereto in accordance with the express provisions hereof.

 

(h)                                 Inthe event that the Custodian shall be uncertain as to its duties or rightshereunder or shall receive instructions, claims or demands from any partyhereto which, in its opinion, conflict with any of the provisions of thisIndenture, it shall be entitled to refrain from taking any action and its soleobligation shall be to request definitive instructions from the other partieshereto and to keep safely all property held in custody until it shall bedirected otherwise in writing by all of the other parties hereto or by a finalorder or judgment of a court of competent jurisdiction.

 

(i)                                     Anycorporation or association into which the Custodian in its individual capacitymay be merged or converted or with which it may be consolidated, or anycorporation or association resulting from any merger, conversion orconsolidation to which the Custodian in its individual capacity shall be aparty, or any corporation or association to which all or substantially all ofthe corporate trust business of the Custodian in its individual capacity may besold or otherwise transferred, shall be the Custodian under this Indenturewithout further act.

 

(j)                                     Anythingin this Indenture to the contrary notwithstanding, in no event shall theCustodian be liable for special, indirect or consequential loss or damage ofany kind whatsoever (including but not limited to lost profits), even if theCustodian has been advised of the likelihood of such loss or damage andregardless of the form of action.

 

(k)                                  TheCustodian agrees to maintain the Contract Files which are delivered to it atthe offices of the Custodian located at: ABS Custody Vault, 751 Kasota Avenue,MAC N9328-011, Minneapolis, Minnesota 55414, Attn: Corporate Trust Services – Asset Backed Securities Vault,and the Custodian shall notify the Indenture Trustee, the Issuer and theInsurer by written notice of any change in the location of the ContractFiles.  Subject to the foregoing, theCustodian may temporarily move individual Contract Files or any portion thereofwithout notice as necessary to allow the Servicer to conduct collection andother servicing activities in accordance with its customary practices and procedures.

 

(l)                                     TheCustodian shall hold the Contract Files in its fire-resistant storage vaultunder its exclusive custody and control in accordance with customary standardsfor such custody and shall maintain a fidelity bond plus document hazardinsurance in such amounts and against such risks as customarily are maintainedby custodians acting in a similar capacity to the Custodian hereunder withrespect to receivables similar to the Contracts.  If the Indenture Trustee or the Issuersuffers losses or damages as a result of the destruction or loss of any of theContract Files or any item therein, the Custodian shall:  (i) at the request of the IndentureTrustee or the Issuer, make any appropriate claim under such bond or insurance;and (ii) to the extent of the Indenture Trustee’s or the Issuer’s lossesor damages, pay the proceeds thereof to the Indenture Trustee, or if all of theIssuer’s obligations under this Indenture and the Notes and the InsuranceAgreement have been paid in full, to the Issuer, unless the Custodian hasreplaced the lost or destroyed items or has otherwise reimbursed the IndentureTrustee or the Issuer, as applicable, for such losses or damages.  The Custodian shall maintain the ContractFiles segregated from and not commingled with any other files of the Custodian.

 

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(m)                               TheCustodian shall not deliver physical possession of, or otherwise transfer,assign, pledge, mortgage, convey or dispose of any Contract Files in itspossession to any Person except (i) as provided in this Article VI-Aand the Servicing Agreement, and (ii) upon termination of this Indenture.

 

(n)                                 TheCustodian hereby waives any and all rights of offset with respect to any andall Contract Files in the Custodian’s possession, whether such right of offsetarises by contract, operation of law or otherwise.

 

(o)                                 TheCustodian specifically acknowledges and agrees that so long as Wells FargoBank, National Association, is acting as Custodian under this Indenture in theevent that Wells Fargo Bank, National Association shall either be terminated orresign as Indenture Trustee pursuant to this Indenture, then the Custodianshall similarly either be terminated or resign and the Custodian shall deliverthe Contract Files to the successor Indenture Trustee, acting as successorCustodian, appointed pursuant to the terms of this Indenture at such place asthe successor Custodian may reasonably designate.  Any entity acting as Custodian hereunder maynot resign as such unless such entity also resigns its capacity as IndentureTrustee.

 

(p)                                 Exceptfor actions expressly authorized by this Article, the Custodian shall take noaction which would or would be likely to impair the security interests createdor existing under any Contract or Financed Vehicle or to impair the value ofany Contract or Financed Vehicle.

 

(q)                                 TheCustodian hereby agrees not to assert (in its individual capacity or otherwise)any liens of any kind with respect to the Contract Files (except in its role asIndenture Trustee and secured party with respect to the liens created pursuantto this Indenture and secured party assignee with respect to the liens createdpursuant to the Contribution Agreement and the Sale and Allocation Agreement)held by it or the related Contracts and hereby releases and waives any suchliens.

 

(r)                                    TheCustodian shall permit inspection at all reasonable times upon at least two (2) BusinessDays prior notice during regular business hours by the Issuer, the IndentureTrustee or the Insurer (or by its auditors when requested by the Issuer, theInsurer or the Indenture Trustee, as applicable) of the Contract Files and therecords of the Custodian relating to this Article (or its auditors whenrequested by the Issuer, the Insurer or the Indenture Trustee, as applicable)to make copies of the Contract Files and the records of the Custodian relatingto this Indenture.

 

**Article VIINoteholders’ Lists and Reports**

** **

**Section 7.1.**                                Issuer to FurnishIndenture Trustee Names and Addresses of Noteholders.

** **

The Issuer shall furnishor cause to be furnished to the Indenture Trustee (i) within five (5) daysafter each Record Date, a list, in such form as the Indenture Trustee mayreasonably require, of the names and addresses of the Class A Noteholdersas of such Record Date and (ii) at such other times as the IndentureTrustee may request in writing, within thirty (30) days after 

 

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receipt by theIssuer of any such request, a list of similar form and content as of a date notmore than ten (10) days prior to the time such list is furnished;provided, however, that so long as the Indenture Trustee is the Note Registraror the Class A Notes are issued as Book-Entry Notes, no such list shall berequired to be furnished.

 

**Section 7.2.**                                Preservation ofInformation; Communications to Noteholders.

** **

The Indenture Trusteeshall preserve, in as current a form as is reasonably practicable, the namesand addresses of the Noteholders contained in the most recent list furnished tothe Indenture Trustee as provided in Section 7.1 and the names andaddresses of the Noteholders received by the Indenture Trustee in its capacityas Note Registrar.  The Indenture Trusteemay destroy any list furnished to it as provided in Section 7.1upon receipt of a new list so furnished.

 

**Section 7.3.**                                Fiscal Year.

** **

Unlessthe Issuer otherwise determines, the Fiscal Year of the Issuer shall end on April 30of each year.

 

**Article VIIIAccounts, Disbursements and Releases**

** **

**Section 8.1.**                                Collection of Money Collection.

** **

Except as otherwiseexpressly provided herein, the Indenture Trustee may demand payment or deliveryof, and shall receive and collect, directly and without intervention orassistance of any fiscal agent or other intermediary, all money and otherproperty payable to or receivable by the Indenture Trustee pursuant to thisIndenture and the Sale and Allocation Agreement.  The Indenture Trustee shall apply all suchmoney received by it as provided in this Indenture and the Sale and AllocationAgreement.  Except as otherwise expresslyprovided in this Indenture, if any default occurs in the making of any paymentor performance under any agreement or instrument that is part of the TrustEstate, the Indenture Trustee may take such action as may be appropriate toenforce such payment or performance, including the institution and prosecutionof appropriate Proceedings.  Any suchaction shall be without prejudice to any right to claim a Default or Event ofDefault under this Indenture and any right to proceed thereafter as provided inArticle V.

 

**Section 8.2.**                                Trust Accounts.

** **

(a)                                  Onor before the Closing Date, the Issuer shall cause the Servicer to establishand maintain, in the name of the Indenture Trustee, for the benefit of theInsurer and the Noteholders, the Collection Account as provided in Section 3.1of the Sale and Allocation Agreement.

 

(b)                                 Onor before the Closing Date, the Issuer shall cause the Servicer to establishand maintain, in the name of the Indenture Trustee, for the benefit of the Class ANoteholders and the Insurer, the Reserve Account as provided in Section 3.6(a) ofthe Sale and Allocation Agreement.

 

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(c)                                  Oneach Payment Date, the Indenture Trustee shall apply or cause to be applied theamount on deposit in the Collection Account on such Payment Date in accordancewith Section 3.5(d) of the Sale and Allocation Agreement.

 

(d)                                 Onor before the Closing Date, the Issuer shall cause the Servicer to establishand maintain, in the name of the Indenture Trustee, for the exclusive benefitof the Class A Noteholders, the Class A Note Payment Account asprovided in Section 3.1(b) of the Sale and Allocation Agreement and,for the exclusive benefit of the Class B Noteholders, the Class BNote Payment Account.  On each PaymentDate, the Indenture Trustee shall apply or cause to be applied the amount ondeposit in the Class A Note Payment Account and the Class B NotePayment Account on such Payment Date in accordance with Section 2.8(b) or(f), as applicable.

 

(e)                                  Onor before the Closing Date, the Issuer shall cause the Servicer to establishand maintain, in the name of the Indenture Trustee, for the exclusive benefitof the Class A Noteholders, the Class B Noteholders and the Insurer,the Prefunding Account as provided in Section 3.7(a) of the Sale andAllocation Agreement.

 

**Section 8.3.**                                General ProvisionsRegarding Accounts.

** **

(a)                                  Solong as no Default or Event of Default shall have occurred and be continuing,all or a portion of the funds in the Trust Accounts shall be invested by theIndenture Trustee at the direction of the Servicer in Eligible Investments asprovided in Sections 3.1 and 3.6(b) of the Sale and AllocationAgreement.  All income or other gain (netof losses and investment expenses) from investments of monies deposited in theTrust Accounts shall be withdrawn by the Indenture Trustee from such accountsand deposited to the Collection Account and shall constitute AvailableFunds.  The Servicer shall not direct theIndenture Trustee to make any investment of any funds or to sell any investmentheld in any of the Trust Accounts unless the security interest Granted andperfected in such account will continue to be perfected in such investment orthe proceeds of such sale, in either case without any further action by anyPerson, and, in connection with any direction to the Indenture Trustee to makeany such investment or sale, if requested by the Indenture Trustee, the Issuershall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to theIndenture Trustee, to such effect.

 

(b)                                 Subjectto Section 6.1(c), the Indenture Trustee shall not in any way beheld liable by reason of any insufficiency in any of the Trust Accountsresulting from any loss on any Permitted Investment included therein, exceptfor losses attributable to the Indenture Trustee’s failure to make payments onsuch Eligible Investments issued by the Indenture Trustee, in its commercialcapacity as principal obligor and not as trustee, in accordance with theirterms.

 

(c)                                  If(i) the Servicer shall have failed to give investment directions for anyfunds 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 upon by the Issuerand Indenture Trustee), on the Business Day preceding each Payment Date, (ii) aDefault or Event of Default shall have occurred and be continuing with respectto the Notes but the Notes shall not have been declared due and payablepursuant to Section 5.2 or (iii) if the Notes shall have beendeclared due and payable following an Event of Default, amounts collected orreceivable from the Trust Estate are being applied in accordance with Section 5.4as if there had not been such a declaration, then the Indenture 

 

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Trusteeshall, to the fullest extent practicable, invest and reinvest funds in theTrust Accounts in Eligible Investments described in clause (vii) of thedefinition thereof.

 

**Section 8.4.**                                Release of TrustEstate.

** **

(a)                                  Subjectto the payment of its fees and expenses pursuant to Section 6.7, theIndenture Trustee may, and when required by the provisions of this Indentureshall, execute instruments to release property from the lien of this Indenture,or convey the Indenture Trustee’s interest in the same, in a manner and undercircumstances that are not inconsistent with the provisions of thisIndenture.  No party relying upon aninstrument executed by the Indenture Trustee as provided in this Article VIIIshall be bound to ascertain the Indenture Trustee’s authority, inquire into thesatisfaction of any conditions precedent or see to the application of anymonies.

 

(b)                                 TheIndenture Trustee shall, at such time as there are no Notes Outstanding, thePolicy has been terminated in accordance with its terms and has been returnedto the Insurer for cancellation and all sums due the Indenture Trustee and theInsurer pursuant to Section 6.7 have been paid in full, release anyremaining portion of the Trust Estate that secured the Notes from the lien ofthis Indenture and release to the Issuer or any other Person entitled theretoany funds then on deposit in the Trust Accounts.  The Indenture Trustee shall release propertyfrom the lien of this Indenture pursuant to this Section 8.4(b) onlyupon receipt of an Issuer Request accompanied by an Issuer’s Certificate and anOpinion of Counsel.

 

**Section 8.5.**                                Opinion of Counsel

** **

The Indenture Trusteeshall receive at least seven (7) days notice when requested by the Issuerto take any action pursuant to Section 8.4(a), accompanied bycopies of any instruments involved, and the Indenture Trustee shall alsorequire, except in connection with any action contemplated by Section 8.4(b),as a condition to such action, an Opinion of Counsel, in form and substancesatisfactory to the Indenture Trustee, stating the legal effect of any suchaction, outlining the steps required to complete such action, and concludingthat all conditions precedent to the taking of such action have been compliedwith and such action will not materially and adversely impair the security forthe Notes or the rights of the Noteholders or the Insurer in contravention ofthe provisions of this Indenture; provided, however, that suchOpinion of Counsel shall not be required to express an opinion as to the fairvalue of the Trust Estate.  Counselrendering any such opinion may rely, without independent investigation, on theaccuracy and validity of any certificate or other instrument delivered to theIndenture Trustee in connection with any such action.

 

**Article IX**Supplemental Indentures

** **

**Section 9.1.**                                SupplementalIndentures Without Consent of Noteholders.

** **

The Issuer and theIndenture Trustee, when authorized by an Issuer Order, may, without the consentof the Holders of any Notes but with prior notice to the Rating Agencies andthe Insurer and with the consent of the Insurer (if no Insurer Default shallhave occurred and be 

 

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continuing), atany time and from time to time, enter into one or more indentures supplementalhereto, in form satisfactory to the Indenture Trustee, for any of the followingpurposes:

 

(a)                                  tocorrect or amplify the description of any property at any time subject to thelien of this Indenture, or better to assure, convey and confirm unto theIndenture Trustee any property subject or required to be subjected to the lienof this Indenture, or to subject to the lien of this Indenture additionalproperty;

 

(b)                                 toevidence the succession, in compliance with the applicable provisions hereof,of another Person to the Issuer, and the assumption by any such successor ofthe covenants of the Issuer herein and in the Notes contained;

 

(c)                                  toadd to the covenants of the Issuer, for the benefit of the Noteholders and theInsurer, or to surrender any right or power herein conferred upon the Issuer;

 

(d)                                 toconvey, transfer, assign, mortgage or pledge any property to or with theIndenture Trustee;

 

(e)                                  tocure any ambiguity, to correct or supplement any provision herein or in anysupplemental indenture that may be inconsistent with any other provision hereinor in any supplemental indenture or to make any other provisions with respectto matters or questions arising under this Indenture which will not beinconsistent with other provisions of this Indenture;

 

(f)                                    toevidence and provide for the acceptance of the appointment hereunder by asuccessor trustee with respect to the Notes and to add to or change any of theprovisions of this Indenture as shall be necessary to facilitate theadministration of the trusts hereunder by more than one trustee, pursuant tothe requirements of Article VI; or

 

(g)                                 tomodify, eliminate or add to the provisions of this Indenture to such extent asshall be necessary to effect the qualification of this Indenture under anyfederal statute hereafter enacted.

 

provided,however, that (i) such action shall not, as evidenced by an Opinion ofCounsel which may be based on an officer’s certificate of the Issuer, adverselyaffect in any material respect the interests of any Noteholder or the Insurer, (ii) theRating Agency Condition shall have been satisfied with respect to such actionand (iii) such action shall not, as evidenced by an Opinion of Counsel,cause the Issuer to be characterized for federal income tax purposes as anassociation or publicly traded partnership taxable as a corporation orotherwise have any material adverse impact on the federal income taxation ofany Notes Outstanding or any Noteholder. The Indenture Trustee is hereby authorized to join in the execution ofany such supplemental indenture and to make any further appropriate agreementsand stipulations that may be therein contained.

 

**Section 9.2.**                                SupplementalIndentures with Consent of Noteholders.

** **

The Issuer and theIndenture Trustee, when authorized by an Issuer Order, may, with the consent ofthe Insurer (if no Insurer Default shall have occurred and be continuing) andthe 

 

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Noteholdersevidencing not less than 51% of the Class A Note Balance and with priornotice to the Rating Agencies and the Insurer, by Act of such Holders deliveredto the Issuer and the Indenture Trustee, at any time and from time to time,enter into one or more indentures supplemental hereto for the purpose of addingany provisions to, or changing in any manner or eliminating any of theprovisions of, this Indenture or modifying in any manner the rights of theNoteholders under this Indenture; provided, however, that (a) suchaction shall not, as evidenced by an Opinion of Counsel, which may be based ona certificate of the Issuer, adversely affect in any material respect theinterests of any Noteholder or the Insurer, (b) the Rating AgencyCondition shall have been satisfied with respect to such action and (c) suchaction shall not, as evidenced by an Opinion of Counsel, cause the Issuer to becharacterized for federal income tax purposes as an association or publiclytraded partnership taxable as a corporation or otherwise have any materialadverse impact on the federal income taxation of any Notes Outstanding or anyNoteholder; and, provided further, that no such supplemental indenture shall,without the consent of the Insurer and the Holder of each Outstanding Noteaffected thereby:

 

(i)                                     changethe Final Note Payment Date for any Class of Notes or the date of paymentof any installment of principal of or interest, if applicable, on any Class ofNotes, or reduce the principal amount thereof, the interest rate thereon or theRedemption Price with respect thereto, change the provisions of this Indenturerelating to the application of collections on, or the proceeds of the sale of,the Trust Estate to payment of principal of or interest, if applicable on any Class ofNotes, or change any place of payment where, or the coin or currency in which,any Note or the interest thereon is payable;

 

(ii)                                  impairthe right to institute suit for the enforcement of the provisions of thisIndenture requiring the application of available funds, as provided in Article V,to the payment of any amount due on any Class of Notes on or after therespective due dates thereof (or, in the case of redemption, on or after theRedemption Date);

 

(iii)                               reducethe percentage of the Notes the consent of the Holders of which is required forany such supplemental indenture or for any waiver of compliance with certainprovisions of this Indenture or of certain defaults hereunder and theirconsequences as provided in this Indenture;

 

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

 

(v)                                 reducethe percentage of the Notes the consent of the Holders of which is required todirect the Indenture Trustee to sell or liquidate the Trust Estate pursuant to Section 5.4if the proceeds of such sale would be insufficient to pay in full the principalamount of and accrued but unpaid interest, if applicable, on any Class ofNotes;

 

(vi)                              modifyany provision of this Indenture specifying a percentage of the principal amountof the Notes necessary to amend this Indenture or the other TransactionDocuments except to increase any percentage specified herein or to provide thatcertain additional provisions of this Indenture or the other TransactionDocuments cannot be 

 

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modified or waivedwithout the consent of the Holders of each Outstanding Note affected thereby;

 

(vii)                           modifyany of the provisions of this Indenture in such a manner as to affect thecalculation of the amount of any payment of interest, if applicable, or principaldue on any Class of Notes on any Payment Date (including the calculationof any of the individual components of such calculation) or to affect therights of the Noteholders to the benefit of any provisions for the mandatoryredemption of the Notes contained herein; or

 

(viii)                        permit thecreation of any lien ranking prior to or on a parity with the lien of thisIndenture with respect to any part of the Trust Estate or, except as otherwisepermitted or contemplated herein, terminate the lien of this Indenture on anysuch collateral at any time subject hereto or deprive the Holder of any Note ofthe security provided by the lien of this Indenture.

 

The Indenture Trustee mayin its discretion determine whether or not any Notes would be affected by anysupplemental indenture and any such determination shall be conclusive upon theHolders of all Notes, whether theretofore or thereafter authenticated anddelivered hereunder.  The IndentureTrustee shall not be liable for any such determination made in good faith.

 

It shall not be necessaryfor any Act of Noteholders under this Section 9.2 to approve theparticular form of any proposed supplemental indenture, but it shall besufficient if such Act shall approve the substance thereof.  Promptly after the execution by the Issuerand the Indenture Trustee of any supplemental indenture pursuant to this Section 9.2,the Indenture Trustee shall mail to the Noteholders to which such amendment orsupplemental indenture relates a notice setting forth in general terms thesubstance of such supplemental indenture. Any failure of the Indenture Trustee to mail such notice, or any defecttherein, shall not, however, in any way impair or affect the validity of anysuch supplemental indenture.

 

**Section 9.3.**                                Execution of SupplementalIndentures.

** **

In executing, orpermitting the additional trusts created by, any supplemental indenturepermitted by this Article IX or the modification thereby of the trustscreated by this Indenture, the Indenture Trustee shall be entitled to receiveand, subject to Sections 6.1 and 6.2, shall be fully protected inrelying upon an Opinion of Counsel stating that the execution of suchsupplemental indenture is authorized or permitted by this Indenture and thatall conditions precedent in this Indenture to the execution and delivery ofsuch supplemental indenture have been satisfied.  The Indenture Trustee may, but shall not beobligated to, enter into any such supplemental indenture that affects theIndenture Trustee’s own rights, duties, liabilities or immunities under thisIndenture or otherwise.

 

**Section 9.4.**                                Effect ofSupplemental Indenture.

** **

Upon the execution of anysupplemental indenture pursuant to the provisions hereof, this Indenture shallbe and shall be deemed to be modified and amended in accordance therewith withrespect to the Notes affected thereby, and the respective rights, limitationsof rights, obligations, duties, liabilities and immunities under this Indentureof the Indenture Trustee, the 

 

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Issuer and theNoteholders shall thereafter be determined, exercised and enforced hereundersubject in all respects to such modifications and amendments, and all the termsand conditions of any such supplemental indenture shall be and be deemed to bepart of the terms and conditions of this Indenture for any and all purposes.

 

**Section 9.5.**                                Reference in Notesto Supplemental Indentures.

** **

Any Notes authenticatedand delivered after the execution of any supplemental indenture pursuant tothis Article IX may, and if required by the Indenture Trustee shall, beara notation in form approved by the Indenture Trustee as to any matter providedfor in such supplemental indenture.  Ifthe Issuer or the Indenture Trustee shall so determine, new Notes so modifiedas to conform, in the opinion of the Indenture Trustee and the Issuer, to anysuch supplemental indenture may be prepared and executed by the Issuer andauthenticated and delivered by the Indenture Trustee in exchange forOutstanding Notes.

 

**Article XRedemption of Notes**

** **

**Section 10.1.**                         Redemption.

** **

The Notes are subject to redemption in whole, but not in part, at thedirection of the Issuer on any Payment Date on which the Depositor exercisesits option to purchase the assets of the Issuer pursuant to Section 5.16of the Sale and Allocation Agreement. The amount paid by the Depositor pursuant to such Section 5.16shall be treated as collections in respect of the Contracts, constituteAvailable Funds and be applied to pay the unpaid principal amount of theOutstanding Notes and accrued and unpaid interest thereon plus all amounts owedto the Insurer, the Owner Trustee, the Indenture Trustee, the Servicer and theBack-up Servicer under the Transaction Documents.  The Issuer shall furnish or shall cause theDepositor to furnish notice of such redemption to the Insurer, the Seller, theIndenture Trustee, the Rating Agencies and the Noteholders.  The Issuer shall cause the Depositor todeposit the Redemption Price in the Collection Account by 10:00 A.M. (New YorkCity time) on the Business Day prior to the Redemption Date, whereupon allNotes shall be due and payable on the Redemption Date.

 

**Section 10.2.**                         Form of RedemptionNotice.

** **

Notice of redemption ofthe Notes under Section 10.1 shall be given by the IndentureTrustee by first-class mail, postage prepaid, or by facsimile mailed ortransmitted promptly following receipt of notice from the Issuer or theServicer pursuant to Section 10.1, but not later than ten (10) daysprior to the applicable Redemption Date, to each Holder of the Notes as of theclose of business on the Record Date preceding the applicable Redemption Date,at such Holder’s address or facsimile number appearing in the Note Register.

 

All notices of redemptionshall state:

 

(a)                                  theRedemption Date;

 

(b)                                 theRedemption Price; and

 

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(c)                                  theplace where the Notes are to be surrendered for payment of the applicableRedemption Price (which shall be the office or agency of the Issuer to bemaintained as provided in Section 3.2).

 

Notice of redemption ofthe Notes shall be given by the Indenture Trustee in the name and at theexpense of the Issuer.  Any failure togive notice of redemption, or any defect therein, to any Holder of any Noteshall not, however, impair or affect the validity of the redemption of anyother Note.

 

**Section 10.3.**                         Notes Payable on RedemptionDate.

** **

The Notes to be redeemedshall, following notice of redemption as required by Section 10.2(in the case of redemption pursuant to Section 10.1), become dueand payable on the Redemption Date at the Redemption Price and (unless theIssuer shall default in the payment of the Redemption Price) no interest shallaccrue on the Redemption Price for any period after the date to which accruedinterest is calculated for purposes of calculating the Redemption Price.

 

**Article XIMiscellaneous**

** **

**Section 11.1.**                         Compliance Certificates andOpinions, etc.

** **

(a)                                  Uponany application or request by the Issuer to the Indenture Trustee to take anyaction under any provision of this Indenture, the Issuer shall furnish to theIndenture Trustee (i) an Issuer’s Certificate stating that all conditionsprecedent, if any, provided for in this Indenture relating to the proposedaction have been complied with, (ii) an Opinion of Counsel stating that,in the opinion of such counsel, all such conditions precedent, if any, havebeen complied with.

 

Every certificate oropinion with respect to compliance with a condition or covenant provided for inthis Indenture shall include:

 

(A)                              astatement that each signatory of such certificate or opinion has read or hascaused to be read such covenant or condition and the definitions hereinrelating thereto;

 

(B)                                abrief statement as to the nature and scope of the examination or investigationupon which the statements or opinions contained in such certificate or opinionare based;

 

(C)                                astatement that, in the opinion of each such signatory, such signatory has madesuch examination or investigation as is necessary to enable such signatory toexpress an informed opinion as to whether or not such covenant or condition hasbeen complied with; and

 

(D)                               astatement as to whether, in the opinion of each such signatory, such conditionor covenant has been complied with.

 

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(b)                                 Priorto the deposit of any Collateral or other property or securities with theIndenture Trustee that is to be made the basis for the release of any propertyor securities subject to the lien of this Indenture, the Issuer shall, inaddition to any obligation imposed in Section 11.1(a) orelsewhere in this Indenture, deliver to the Indenture Trustee an Issuer’sCertificate certifying or stating the opinion of each person signing suchcertificate as to the fair value (within ninety (90) days of such deposit) tothe Issuer of the Collateral or other property or securities to be sodeposited.

 

(c)                                  Wheneverthe Issuer is required to furnish to the Indenture Trustee an Issuer’sCertificate certifying or stating the opinion of any signer thereof as to thematters described in Section 11.1(b), the Issuer shall also furnishto the Indenture Trustee an Independent Certificate as to the same matters ifthe fair value to the Issuer of the property or securities to be so depositedand of all other such property or securities made the basis of any suchwithdrawal or release since the commencement of the then-current Fiscal Year ofthe Issuer, as set forth in the certificates furnished pursuant to Section 11.1(b) andthis Section 11.1(c), is ten percent (10%) or more of the Class ANote Balance, but such a certificate need not be furnished with respect to anyproperty or securities so deposited if the fair value thereof to the Issuer asset forth in the related Issuer’s Certificate is less than $25,000 or less thanone percent (1%) of the Class A Note Balance.

 

(d)                                 Wheneverany property or securities are to be released from the lien of this Indenture,the Issuer shall also furnish to the Indenture Trustee an Issuer’s Certificatecertifying or stating the opinion of each person signing such certificate as tothe fair value (within ninety (90) days of such release) of the property orsecurities proposed to be released and stating that in the opinion of suchperson the proposed release will not impair the security under this Indenturein contravention of the provisions hereof.

 

(e)                                  Wheneverthe Issuer is required to furnish to the Indenture Trustee an Issuer’sCertificate certifying or stating the opinion of any signer thereof as to thematters described in Section 11.1(d), the Issuer shall also furnishto the Indenture Trustee an Independent Certificate as to the same matters ifthe fair value of the property or securities and of all other property, otherthan property as contemplated by Section 11.1(f) or securitiesreleased from the lien of this Indenture since the commencement of thethen-current calendar year, as set forth in the certificates required by Section 11.1(d) andthis Section 11.1(e), is ten percent (10%) or more of the Class ANote Balance, but such a certificate need not be furnished in the case of anyrelease of property or securities if the fair value thereof as set forth in therelated Issuer’s Certificate is less than $25,000 or less than one percent (1%)of the Class A Note Balance.

 

(f)                                    NotwithstandingSection 2.10 or any other provisions of this Section 11.1,the Issuer may, without compliance with the requirements of the otherprovisions of this Section 11.1, (i) collect, liquidate, sellor otherwise dispose of Contracts and Financed Vehicles as and to the extentpermitted or required by the Transaction Documents and (ii) make cashpayments out of the Trust Accounts as and to the extent permitted or requiredby the Transaction Documents.

 

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**Section 11.2.**                         Form of DocumentsDelivered to Indenture Trustee.

** **

(a)                                  Inany case where several matters are required to be certified by, or covered byan opinion of, any specified Person, it is not necessary that all such mattersbe certified by, or covered by the opinion of, only one such Person, or thatthey be so certified or covered by only one document, but one such Person maycertify or give an opinion with respect to some matters and one or more othersuch Persons as to other matters, and any such Person may certify or give anopinion as to such matters in one or several documents.

 

(b)                                 Anycertificate 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, orrepresentations by, counsel, unless such officer knows, or in the exercise ofreasonable care should know, that the certificate or opinion or representationswith respect to the matters upon which such Issuer’s Certificate or opinion isbased are erroneous.  Any suchcertificate of an Authorized Officer or Opinion of Counsel may be based,insofar as it relates to factual matters, upon a certificate or opinion of, orrepresentations by, one or more officers of the Servicer, the Seller, theAdministrator or the Issuer, stating that the information with respect to suchfactual matters is in the possession of the Servicer, the Seller, theAdministrator or the Issuer, unless such Authorized Officer or counsel knows,or in the exercise of reasonable care should know, that the certificate oropinion or representations with respect to such matters are erroneous.

 

(c)                                  Whereany Person is required to make, give or execute two or more applications,requests, consents, certificates, statements, opinions or other instrumentsunder this Indenture, they may, but need not, be consolidated and form oneinstrument.

 

(d)                                 Wheneverin this Indenture, in connection with any application or certificate or reportto the Indenture Trustee, it is provided that the Issuer shall deliver anydocument as a condition of the granting of such application, or as evidence ofthe Issuer’s compliance with any term hereof, it is intended that the truth andaccuracy, at the time of the granting of such application or at the effectivedate of such certificate or report (as the case may be), of the facts andopinions stated in such document shall in such case be conditions precedent tothe right of the Issuer to have such application granted or to the sufficiencyof such certificate or report.  Theforegoing shall not, however, be construed to affect the Indenture Trustee’sright to rely upon the truth and accuracy of any statement or opinion containedin any such document as provided in Article VI.

 

**Section 11.3.**                         Acts of Noteholders.

** **

(a)                                  Anyrequest, demand, authorization, direction, notice, consent, waiver or otheraction provided by this Indenture to be given or taken by the Noteholders maybe embodied in and evidenced by one or more instruments of substantiallysimilar tenor signed by the Noteholders in person or by agents duly appointedin writing, and except as herein otherwise expressly provided such action shallbecome effective when such instrument or instruments are delivered to theIndenture Trustee and, where it is hereby expressly required, to theIssuer.  Such instrument or instruments(and the action embodied therein and evidenced thereby) are herein sometimesreferred to as the “Act” of the Noteholders signing such instrument orinstruments.  Proof of execution of anysuch instrument or of a writing appointing any such agent shall be 

 

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sufficientfor any purpose of this Indenture and (subject to Section 6.1) conclusivein favor of the Indenture Trustee and the Issuer, if made in the mannerprovided in this Section 11.3.

 

(b)                                 Thefact and date of the execution by any Person of any such instrument or writingmay be proved in any manner that the Indenture Trustee deems sufficient.

 

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

 

(d)                                 Anyrequest, demand, authorization, direction, notice, consent, waiver or otheraction by the Holder of any Notes shall bind the Holder of every Note issuedupon the registration thereof or in exchange therefor or in lieu thereof, inrespect of anything done, omitted or suffered to be done by the IndentureTrustee or the Issuer in reliance thereon, whether or not notation of suchaction is made upon such Note.

 

**Section 11.4.**                         Notices, etc. to IndentureTrustee.

** **

Any request, demand,authorization, direction, notice, consent, waiver or Act of Noteholders orother documents provided or permitted by this Indenture shall be in writing andif such request, demand, authorization, direction, notice, consent, waiver, Actof Noteholders is to be made upon, given or furnished to or filed with:

 

(a)                                  theIndenture Trustee by any Noteholder or by the Issuer, shall be sufficient forevery purpose hereunder if made, given, furnished or filed in writing to orwith the Indenture Trustee at its Corporate Trust Office;

 

(b)                                 theIssuer by the Indenture Trustee or by any Noteholder, shall be sufficient forevery purpose hereunder if in writing and mailed first-class, postage prepaidto the Issuer addressed to: First Investors Auto Owner Trust 2005-A, c/o WellsFargo Delaware Trust Company, 919 North Market Street, Suite 700,Wilmington, DE 19801, Attention: Corporate Trust Administration, or at anyother address previously furnished in writing to the Indenture Trustee by theIssuer or the Administrator.  The Issuershall promptly transmit any notice received by it from the Noteholders to theIndenture Trustee; or

 

(c)                                  theInsurer by the Indenture Trustee, the Servicer or any Noteholder, shall besufficient for every purpose hereunder if in writing and mailed first-class,postage prepaid to the Insurer addressed to MBIA Insurance Corporation, 113King Street, Armonk, New York 10504, Attention: Insured Portfolio Management,Structured Finance.

 

Notices required to begiven to the Rating Agencies by the Issuer, the Indenture Trustee or the OwnerTrustee shall be in writing, personally delivered, telecopied or mailed bycertified mail, return receipt requested, to (i) in the case of Moody’s,at the following address: Moody’s Investors Service, Inc., 99 ChurchStreet, 4th Floor, New York, New York 10007, ServicerReports@moodys.com, Attn:Yan Yan, with an additional copy to Moody’s Investors Service, Inc., 99Church Street, 4th Floor, New York, New York 10007, Attn: ABS MonitoringDepartment, and (ii) in case of S&P, if available electronically, atServicer_reports@sandp.com, and if not available electronically, at thefollowing address: Standard & Poor’s Ratings Services, a division ofThe McGraw-Hill Companies, Inc., 55 Water Street, 43rd Floor, New York,New York 10041, Attention: ABS Surveillance Group.

 

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**Section 11.5.**                         Notices to Noteholders;Waiver Notices to Noteholders.

** **

(a)                                  Wherethis Indenture provides for notice to Noteholders of any event, such noticeshall be sufficiently given (unless otherwise herein expressly provided) if inwriting and mailed, first-class, postage prepaid to each Noteholder affected bysuch event, at its address as it appears on the Note Register, not later thanthe latest date, and not earlier than the earliest date, prescribed for thegiving of such notice.  In any case wherenotice to Noteholders is given by mail, neither the failure to mail such noticenor any defect in any notice so mailed to any particular Noteholder shallaffect the sufficiency of such notice with respect to other Noteholders, andany notice that is mailed in the manner herein provided shall conclusively bepresumed to have been duly given.

 

(b)                                 Wherethis Indenture provides for notice in any manner, such notice may be waived inwriting by any Person entitled to receive such notice, either before or afterthe event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Noteholders shall befiled with the Indenture Trustee, but such filing shall not be a conditionprecedent to the validity of any action taken in reliance upon such a waiver.

 

(c)                                  If,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 noticeof any event to Noteholders when such notice is required to be given pursuantto any provision of this Indenture, then any manner of giving such notice asshall be satisfactory to the Indenture Trustee shall be deemed to be asufficient giving of such notice.

 

(d)                                 Wherethis Indenture provides for notice to the Rating Agencies, failure to give suchnotice shall not affect any other rights or obligations created hereunder, andshall not under any circumstance constitute a Default or Event of Default.

 

**Section 11.6.**                         Alternate Payment andNotice Provisions.

** **

Notwithstanding anyprovision of this Indenture or any of the Notes to the contrary, the Issuer mayenter into any agreement with any Holder of a Note providing for a method ofpayment, or notice by the Indenture Trustee or any Paying Agent to such Holder,that is different from the methods provided for in this Indenture for suchpayments or notices.  The Issuer shallfurnish to the Indenture Trustee a copy of each such agreement and theIndenture Trustee shall cause payments to be made and notices to be given inaccordance with such agreements.

 

**Section 11.7.**                         Effect of Headings andTable of Contents.

** **

The Article and Section headingsherein and the Table of Contents are for convenience of reference only andshall not define or limit any of the terms or provisions hereof.

 

**Section 11.8.**                         Successors and Assigns.

** **

All covenants andagreements in this Indenture and the Notes by the Issuer shall bind itssuccessors and assigns, whether so expressed or not.  All agreements of the Indenture Trustee inthis Indenture shall bind its successors, co-trustees and agents.

 

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**Section 11.9.**                         Severability.

** **

If any provision of thisIndenture or the Notes shall be invalid, illegal or unenforceable, thevalidity, legality, and enforceability of the remaining provisions of thisIndenture and the Notes shall not in any way be affected or impaired thereby.

 

**Section 11.10.**                  Benefits of Indenture.

** **

Nothing in this Indentureor in the Notes, express or implied, shall give to any Person, other than theparties hereto and their successors hereunder, the Insurer, the Noteholders,any other party secured hereunder, and any other Person with an ownershipinterest in any part of the Trust Estate, any benefit or any legal or equitableright, remedy or claim under this Indenture.

 

**Section 11.11.**                  Legal Holiday.

** **

If the date on which anypayment is due shall not be a Business Day, then (notwithstanding any otherprovision of the Notes or this Indenture) payment need not be made on such datebut may be made on the next succeeding Business Day with the same force andeffect as if made on the date on which nominally due, and no interest shallaccrue for the period from and after any such nominal date.

 

**Section 11.12.**                  Governing Law.

** **

This Indenture shall beconstrued in accordance with the laws of the State of New York withoutreference to its conflict of law provisions and the obligations, rights andremedies of the parties under this Indenture shall be determined in accordancewith such laws.

 

**Section 11.13.**                  Counterparts.

** **

This Indenture may beexecuted in any number of counterparts, each of which counterparts when soexecuted shall be deemed to be an original, and all of which counterparts shalltogether constitute but one and the same instrument.

 

**Section 11.14.**                  Recording of Indenture.

** **

If this Indenture issubject to recording in any appropriate public recording office, such recordingshall be effected by the Issuer at its expense and shall be accompanied by an Opinionof Counsel (which may be counsel to the Indenture Trustee or any other counselreasonably acceptable to the Indenture Trustee) to the effect that suchrecording is necessary either for the protection of the Noteholders or anyother Person secured hereunder or for the enforcement of any right or remedygranted to the Indenture Trustee under this Indenture.

 

**Section 11.15.**                  Trust Obligation.

** **

No recourse may be taken,directly or indirectly, with respect to the obligations of the Issuer, theOwner Trustee or the Indenture Trustee on the Notes or under this Indenture orany certificate or other writing delivered in connection herewith or therewithagainst (a) the Indenture Trustee or the Owner Trustee in its individualcapacity, (b) any holder of a beneficial 

 

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interest in theIssuer or (c) any partner, owner, beneficiary, agent, officer, director,employee or agent of the Indenture Trustee or the Owner Trustee in itsindividual capacity, of any holder of a beneficial interest in the Issuer, theOwner Trustee or the Indenture Trustee or of any successor or assign of theIndenture Trustee or the Owner Trustee in its individual capacity, except asany such Person may have expressly agreed (it being understood that theIndenture Trustee and the Owner Trustee have no such obligations in theirindividual capacities), and except that any such partner, owner or beneficiaryshall be fully liable, to the extent provided by applicable law, for any unpaidconsideration for stock, unpaid capital contribution or failure to pay anyinstallment or call owing to such entity. For all purposes of this Indenture the Owner Trustee (as such and in itsindividual capacity) shall be subject to, and entitled to the benefits of, theterms and provisions of the Trust Agreement.

 

**Section 11.16.**                  No Petition.

** **

The Indenture Trustee, byentering into this Indenture, and each Noteholder or Note Owner, by accepting aNote or beneficial interest in a Note, as the case may be, hereby covenant andagree that they will not at any time institute against, join in any institutionagainst, or knowingly or intentionally cooperate or encourage any other Personin instituting against, the Depositor or the Issuer, any bankruptcy,reorganization, arrangement, insolvency or liquidation proceedings or otherproceedings under any United States federal or state bankruptcy or similar lawin connection with any obligations relating to the Notes, this Indenture or anyof the other Transaction Documents.

 

**Section 11.17.**                  Inspection.

** **

The Issuer shall, withreasonable prior notice, permit any representative of the Indenture Trustee orthe Insurer, during the Issuer’s normal business hours, to examine the books ofaccount, records, reports and other papers of the Issuer, to make copies andextracts therefrom, to cause such books to be audited by Independent certifiedpublic accountants, and to discuss the Issuer’s affairs, finances and accountswith 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 causeits representatives to hold in confidence all such information except to theextent disclosure may be required by law (and all reasonable applications forconfidential treatment are unavailing) and except to the extent that theIndenture Trustee may reasonably determine that such disclosure is consistentwith its obligations hereunder.

 

**Section 11.18.**                  Certain Matters Regarding theInsurer.

** **

If no Insurer Defaultshall have occurred and be continuing, the Insurer shall have the right toexercise all rights, including voting rights, which the Class ANoteholders are entitled to exercise pursuant to this Indenture, without anyconsent of such Class A Noteholders except for amendments which requirethe consent of both Class A Noteholders and the Insurer, in accordancewith Section 9.2; provided, however, that, withoutthe consent of each Class A Noteholder affected thereby, the Insurer shallnot exercise such rights to amend this Indenture in any manner that would (a) reducethe amount of, or delay the timing of, collections of payments on the Contractsor distributions which are required to be made on any Class of Class ANotes,

 

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(b) adverselyaffect in any material respect the interests of the Holders of any Class ofClass A Notes or (c) alter the rights of any Class A Holder toconsent to such amendment.

 

Notwithstanding anyprovision of this Indenture to the contrary, if an Insurer Default has occurredand is continuing, the Insurer shall not have the right to take any actionunder this Indenture or to control or direct the actions of the Issuer, theIndenture Trustee or the Owner Trustee pursuant to the terms of this Indenture,nor shall the consent of the Insurer be required with respect to any action (orwaiver of a right to take action) to be taken by the Issuer, the IndentureTrustee, the Owner Trustee, or the Class A Noteholders; provided, however,that (i) the consent of the Insurer shall be required at all times withrespect to any amendment of this Indenture and (ii) the Insurer shall beentitled to receive notices hereunder at all times whether or not an InsurerDefault has occurred.

 

**Section 11.19.**                  Acknowledgment of Multiple Roles.

** **

The parties expresslyacknowledge and consent to Wells Fargo Bank, National Association (“*Wells Fargo*”) acting in the possibledual capacity of Back-up Servicer or successor Servicer and in the capacity asIndenture Trustee and Custodian.  WellsFargo may, in such dual capacity, discharge its separate functions fully,without hindrance or regard to conflict of interest principles, duty of loyaltyprinciples or other breach of fiduciary duties to the extent that any suchconflict or breach arises from the performance by Wells Fargo of express dutiesset forth in this Indenture in any of such capacities, all of which defenses,claims or assertions are hereby expressly waived by the other parties heretoexcept in the case of negligence (other than errors in judgment) and willfulmisconduct by Wells Fargo.

 

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IN WITNESS WHEREOF, theparties hereto have caused this Indenture to be duly executed by their respectiveofficers, thereunto duly authorized and duly attested, all as of the day andyear first above written.

 
|   | FIRST  INVESTORS AUTO OWNER TRUST 2005-A                                                                         |
|--------|------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                             |
|   | By:                                                                                                              | WELLS FARGO  DELAWARE TRUST  COMPANY, not in its individual capacity but  solely as Owner Trustee |   |
|   |                                                                                                             |
|   |                                                                                                             |
|   | By:                                                                                                              |   |   |
|   | Name:                                                                                                            |   |   |
|   | Title:                                                                                                           |   |   |
|   |                                                                                                             |
|   |                                                                                                             |
|   | WELLS FARGO  BANK, NATIONAL ASSOCIATION,  not in its individual capacity but as Indenture Trustee and  Custodian |
|   |                                                                                                             |
|   |                                                                                                             |
|   | By:                                                                                                              |   |   |
|   | Name:                                                                                                            |   |   |
|   | Title:                                                                                                           |   |   |
|        |                                                                                                                  |  |  |  |  |  |

 

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SCHEDULE A

to Indenture

 

**Perfection Representations, Warranties AndCovenants**

 

In addition to therepresentations, warranties and covenants contained in the Indenture, theIssuer hereby represents, warrants, and covenants to the Indenture Trustee asfollows on the Closing Date, and on each Additional Contract Purchase Date, ineach case only with respect to the Collateral pledged to the Indenture Trusteeon the Closing Date, or the relevant Additional Contract Purchase Date, asapplicable:

 

**General**

 

1.                                       TheIndenture creates a valid and continuing security interest (as defined in theRelevant UCC Section 9-102) in the Collateral in favor of the IndentureTrustee, which security interest is prior to all other Liens, except as setforth below, and is enforceable as such as against creditors of and purchasersfrom and assignees of the Issuer.

 

2.                                       EachContract constitutes “tangible chattel paper” and not “electronic chattel paper”,within the meaning of the Relevant UCC Section 9-102.

 

3.                                       TheIssuer has taken or will take all steps necessary actions with respect to theContracts to perfect the security interest of the Indenture Trustee in theContracts.

 

**Creation**

 

1.                                       TheIssuer owns and has good and marketable title to the Collateral, free and clearof any Lien, claim or encumbrance of any Person, excepting only tax liens,mechanics’ liens and other liens that arise by the operation of law, in eachcase on any of the Financed Vehicles and arising solely as a result of anaction or omission of the related Obligor.

 

**Perfection**

 

1.                                       TheIssuer has caused the filing of all appropriate financing statements in theproper filing office in the appropriate jurisdictions under applicable law inorder to perfect the security interest in the Collateral granted to theIndenture Trustee under the Indenture.

 

2.                                       Withrespect to Collateral that constitutes tangible chattel paper, such tangiblechattel paper is in the possession of the Custodian, and the Issuer hasreceived a written acknowledgment from the Custodian that it is holding suchtangible chattel paper for the benefit of the Indenture Trustee and theIssuer.  All financing statements filedor to be filed against the Issuer in favor of the Indenture Trustee inconnection with this Indenture describing the Collateral contain a statement tothe following effect: “A purchase of or security interest in any collateraldescribed in this financing statement will violate the rights of the SecuredParty.”

 

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**Priority**

 

1.                                       Otherthan the security interest granted to the Indenture Trustee pursuant to thisIndenture, the Issuer has not pledged, assigned, sold, granted a securityinterest in, or otherwise conveyed any of the Collateral.  The Issuer has not authorized the filing of,or is aware of any financing statements against either the Seller, theDepositor or the Issuer that includes a description of the Collateral andproceeds related thereto other than any financing statement:  (i) relating to the sale of theContributed Property by the Seller to the Depositor under the ContributionAgreement; (ii) relating to the sale of the Trust Property by theDepositor to the Issuer under the Sale and Allocation Agreement; (iii) relatingto the security interest granted to the Indenture Trustee by the Issuer underthe Indenture; or (iv) that has been terminated or amended to reflect arelease of the Collateral.

 

2.                                       TheIssuer is not aware of any judgment, ERISA or tax lien filings against eitherthe Seller, the Depositor or the Issuer.

 

3.                                       Noneof the tangible chattel paper that constitutes or evidences the Contracts hasany marks or notations indicating that it has been pledged, assigned orotherwise conveyed to any Person other than the Seller, the Depositor, theIssuer or the Indenture Trustee.

 

**Survival of Perfection Representations**

 

1.                                       Notwithstandingany other provision of this Indenture, the Contribution Agreement, the Sale andAllocation Agreement or any other Transaction Document, the PerfectionRepresentations, Warranties and Covenants contained in this Schedule shallbe continuing, and remain in full force and effect until such time as allobligations under the Sale and Allocation Agreement, Contribution Agreement andthe Indenture have been finally and fully paid and performed.

 

**No Waiver**

 

1.                                       Theparties hereto: (i) shall not, without obtaining a confirmation of thethen-current rating of the Class A Notes (without giving effect to thePolicy), waive any of the Perfection Representations, Warranties or Covenants; (ii) shallprovide the Rating Agencies with prompt written notice of any breach of the PerfectionRepresentations, Warranties or Covenants, and shall not, without obtaining aconfirmation of the then-current rating of the Class A Notes (withoutgiving effect to the Policy) as determined after any adjustment or withdrawalof the ratings following notice of such breach) waive a breach of any of thePerfection Representations, Warranties or Covenants.

 

A-2

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Exhibit A-1

$69,000,000

 

UNLESS THIS CLASS A-1NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUSTCOMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FORREGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED ISREGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS ISREQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TOCEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZEDREPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OROTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNERHEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

THIS CLASS A-1 NOTEHAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, ASAMENDED (THE “SECURITIES ACT”), OR THE APPLICABLE SECURITIES LAWS OF ANYSTATE.  ACCORDINGLY, TRANSFER OF THIS CLASS A-1NOTE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN SECTION 2.15 OF THEINDENTURE.  BY ITS ACCEPTANCE OF THIS CLASS A-1NOTE, THE HOLDER OF THIS CLASS A-1 NOTE IS DEEMED TO REPRESENT TO THEISSUER AND THE INDENTURE TRUSTEE THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER”AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT AND IS ACQUIRING THIS NOTE FORITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENTFOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS).

 

NO SALE, PLEDGE OR OTHERTRANSFER OF THIS CLASS A-1 NOTE SHALL BE MADE UNLESS SUCH SALE, PLEDGE OROTHER TRANSFER IS (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENTUNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE CLASS A-1 NOTES AREELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSONTHE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A “QUALIFIEDINSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNTOR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVENTHAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (C) PURSUANTTO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THESECURITIES ACT, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED AND ANYAPPLICABLE STATE SECURITIES AND BLUE SKY LAWS OR IS MADE IN ACCORDANCE WITHEACH SUCH ACT AND STATE LAWS. THE INDENTURE TRUSTEE MAY REQUIRE AN OPINIONOF COUNSEL TO BE DELIVERED TO IT IN CONNECTION WITH ANY SALE, PLEDGE OR OTHERTRANSFER OF THIS CLASS A-1 NOTE PURSUANT TO CLAUSES (A) OR (C) ABOVE.  ALL OPINIONS OF COUNSEL REQUIRED INCONNECTION WITH ANY TRANSFER SHALL BE BY COUNSEL REASONABLY ACCEPTABLE TO THEINDENTURE TRUSTEE.

 

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EACH INVESTOR IN THIS CLASS A-1NOTE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTEDTHAT EITHER (I) IT IS NOT, AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS CLASS A-1NOTE FOR, ON BEHALF OF OR WITH ANY ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHERARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACTOF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THEINTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A PLAN OR OTHERARRANGEMENT SUBJECT TO ANY PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S.OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIVELY SIMILAR TO THE FOREGOINGPROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”) OR (II) ITS ACQUISITION ANDHOLDING OF SUCH CLASS A-1 NOTE OR ANY INTEREST THEREIN WILL NOT CONSTITUTEOR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR THE CODE, OR AVIOLATION OF SIMILAR LAW.

 

A-1-2

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| REGISTERED   |   |                |
|--------------|--------|---------------------|
| No. A-1 |   | CUSIP NO. 32057TAD3 |

 

**FIRST INVESTORS AUTO OWNER TRUST 2005-A**

 

**FORM OF 3.57% CLASS A-1 ASSET-BACKED NOTES**

 

First Investors AutoOwner Trust 2005-A, a statutory trust organized and existing under the laws ofthe State of Delaware (herein referred to as the “*Issuer*”),for value received, hereby promises to pay to Cede & Co., or itsregistered assigns, the principal sum of $69,000,000 (SIXTY NINE MILLIONDOLLARS) payable on each Payment Date in the aggregate amount, if any, payablefrom the Class A Note Payment Account in respect of principal on the Class ANotes pursuant to and in accordance with Section 2.8 of the Indenture,dated as of May 5, 2005 (as amended, supplemented or otherwise modifiedand in effect from time to time, the “*Indenture*”),between the Issuer and Wells Fargo Bank, National Association, a nationalbanking association, as Indenture Trustee and Custodian (in such capacities the“Indenture Trustee” and the “*Custodian*”)and Section 3.5 of the Sale and Allocation Agreement; provided, however,that if not paid prior to such date, the entire unpaid principal amount of thisNote shall be due and payable on the earlier of December 17, 2007 (the “*Final Note Payment Date*”) and theRedemption Date, if any, pursuant to Section 10.1 of the Indenture.  Capitalized terms used but not defined hereinare defined in Article I of the Indenture, which also contains rules asto construction that shall be applicable herein.

 

The Issuer shall payinterest on this Class A-1 Note at the rate per annum shown above on eachPayment Date until the principal of this Class A-1 Note is paid or madeavailable for payment, on the principal amount of this Class A-1 Noteoutstanding on the preceding Payment Date (after giving effect to all paymentsof principal made on the preceding Payment Date), subject to certainlimitations contained in Section 3.1 of the Indenture.  Interest on this Class A-1 Note willaccrue for each Payment Date from and including the previous Payment Date (or,in the case of the initial Payment Date or if no interest has been paid, fromthe Closing Date) to but excluding such Payment Date.  Interest will be computed on the basis of a360-day year of twelve 30-day months. Such principal of and interest on this Class A-1 Note shall be paidin the manner specified on the reverse hereof.

 

The principal of andinterest on this Class A-1 Note are payable in such coin or currency ofthe United States of America as at the time of payment is legal tender forpayment of public and private debts.  Allpayments made by the Issuer with respect to this Class A-1 Note shall beapplied first to interest due and payable on this Class A-1 Note asprovided above and then to the unpaid principal of this Class A-1 Note.

 

Reference is made to thefurther provisions of this Class A-1 Note set forth on the reverse hereof,which shall have the same effect as though fully set forth on the face of this Class A-1Note.

 

Unless the certificate ofauthentication hereon has been executed by the Indenture Trustee whose nameappears below by manual signature, this Class A-1 Note shall not beentitled to any 

 

A-1-3

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benefit under theIndenture referred to on the reverse hereof, or be valid or obligatory for anypurpose.

 

This Class A-1 Noteis one of a duly authorized issue of Class A-1 Notes of the Issuer,designated as its Class A-1 Asset-Backed Notes, are issued under theIndenture, to which Indenture and all indentures supplemental thereto referenceis hereby made for a statement of the respective rights and obligationsthereunder of the Issuer, the Indenture Trustee and the Holders of the Class A-1Notes.  The Class A-1 Notes aresubject to all terms of the Indenture.

 

This Class A-1 Noteis and will be secured by the Collateral pledged as security therefor asprovided in the Indenture.

 

Principal of this Class A-1Note is payable on each Payment Date as described on the face hereof.  “*Payment Date*”means the fifteenth day of each month or, if any such day is not a BusinessDay, the next succeeding Business Day, commencing May 16, 2005.

 

The entire unpaidprincipal amount of this Class A-1 Note shall be due and payable on theearlier of the Final Note Payment Date and the Redemption Date, if any,pursuant to Section 10.1 of the Indenture. Notwithstanding the foregoing, the entire unpaid principal amount ofthis Note shall be due and payable on the date on which an Event of Defaultshall have occurred and the Notes have to be immediately due and payable in themanner provided in Section 5.2 of the Indenture.  Notwithstanding the foregoing sentence, this Class A-1Note shall become immediately due and payable without declaration, notice ordemand by or to any Person upon the occurrence of an Event of Default specifiedin Section 5.1(i) of the Indenture with respect to the Issuer.  All principal payments on the Class A-1Notes shall be made pro rata to the Class A-1 Holders entitled thereto.

 

Payments of interest onthis Class A-1 Note due and payable on each Payment Date, together withthe installment of principal, if any, to the extent not in full payment of thisNote, shall be made by check mailed to the Person in whose name this Class A-1Note is registered appears as the Registered Holder of this Class A-1 Note(or one or more Predecessor Notes) on the related Record Date by check mailedfirst-class postage prepaid to such Person’s address as it appears on the NoteRegister on such Record Date; provided, however, that, unless Definitive Noteshave been issued pursuant to Section 2.13 of the Indenture, if this Class A-1Note is registered in the name of the nominee of the Clearing Agency (initially,such nominee to be Cede & Co.), payments will be made by wire transferin immediately available funds to the account designated by such nominee.  Any reduction in the principal amount of thisClass A-1 Note effected by any payments made on any Payment Date shall bebinding upon all future Holders of this Class A-1 Note and of any Class A-1Note issued upon the registration of transfer hereof or in exchange hereof orin lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, forpayment in full of the then remaining unpaid principal amount of this Class A-1Note on a Payment Date, then the Indenture Trustee, in the name of and onbehalf of the Issuer, will notify the Person who was the registered Holderhereof as of the Record Date preceding such Payment Date by notice mailed ortransmitted by facsimile prior to such Payment Date, and the amount then dueand payable shall be payable only upon presentation and surrender of this Class A-1Note at the Indenture Trustee’s Corporate Trust Office or at the office of theIndenture Trustee’s agent appointed for such purposes located at 

 

A-1-4

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Sixth Street andMarquette Avenue MAC N9311-161, Minneapolis, Minnesota  55479, Attention:  Corporate Trust Services Asset-BackedAdministration or such other address as the Indenture Trustee may designatefrom time to time as its Corporate Trust Offices in accordance with theIndenture.

 

The Issuer shall payinterest on overdue installments of interest at the Note Rate applicable to theClass A-1 Notes to the extent permitted by law.

 

The Class A-1 Notesare entitled to the benefits of the Policy issued by the Insurer.  The Insurer is obligated to pay, inaccordance with the terms of the Policy as described in the “Statement ofInsurance” attached hereto.

 

As provided in theIndenture, the Notes may be redeemed in the manner and to the extent describedin Section 10.1 of the Indenture.

 

As provided in theIndenture, and subject to certain limitations set forth therein, the transferof this Class A-1 Note may be registered on the Note Register uponsurrender of this Class A-1 Note for registration of transfer at theoffice or agency designated by the Issuer pursuant to the Indenture, dulyendorsed by, or accompanied by a written instrument of transfer in formsatisfactory to the Indenture Trustee duly executed by, the Holder hereof orsuch Holder’s attorney duly authorized in writing, and thereupon one or morenew Class A-1 Notes of authorized denominations and in the same aggregateprincipal amount will be issued to the designated transferee ortransferees.  No service charge will becharged for any registration of transfer or exchange of this Class A-1Note, but the transferor may be required to pay a sum sufficient to cover anytax or other governmental charge that may be imposed in connection with anysuch registration of transfer or exchange.

 

Each Noteholder or NoteOwner, by its acceptance of this Class A-1 Note or, in the case of a NoteOwner, a beneficial interest in this Class A-1 Note, covenants and agreesthat no recourse may be taken, directly or indirectly, with respect to theobligations of the Issuer, the Owner Trustee or the Indenture Trustee on this Class A-1Note or under the Indenture or any certificate or other writing delivered inconnection therewith, against (i) the Indenture Trustee or the OwnerTrustee, each in its individual capacity, (ii) any owner of a beneficialinterest in the Issuer or (iii) any partner, owner, beneficiary, agent,officer, director or employee of the Indenture Trustee or the Owner Trustee,each in its individual capacity, any holder of a beneficial interest in theIssuer, the Owner Trustee or the Indenture Trustee or of any successor orassign of the Indenture Trustee or the Owner Trustee, each in its individualcapacity, except as any such Person may have expressly agreed (it beingunderstood that the Indenture Trustee and the Owner Trustee have no suchobligations in their individual capacities) and except that any such partner,owner or beneficiary shall be fully liable, to the extent provided byapplicable law, for any unpaid consideration for stock, unpaid capitalcontribution for stock, unpaid capital contribution or failure to pay anyinstallment or call owing to such entity.

 

Each Noteholder or NoteOwner, by accepting this Class A-1 Note or a beneficial interest in this Class A-1Note, as the case may be, hereby covenants and agrees that it will not at anytime institute against, join in any institution against, or knowingly orintentionally cooperate or encourage any other Person in instituting against,the Depositor or the Issuer, any bankruptcy,

 

A-1-5

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reorganization,arrangement, insolvency or liquidation proceedings or other proceedings underany United States federal or state bankruptcy or similar law in connection withany obligations relating to the Notes, the Indenture or any of the otherTransaction Documents.

 

The Issuer has enteredinto the Indenture and this Class A-1 Note is issued with the intentionthat, for federal, state and local income, and franchise tax purposes, the Class A-1Notes will qualify as indebtedness of the Issuer secured by the TrustEstate.  The Issuer, by entering into theIndenture and this Class A-1 Note, and each Noteholder, by its acceptanceof this Class A-1 Note (and each Note Owner by its acceptance of abeneficial interest in this Class A-1 Note), agree to treat this Class A-1Note as indebtedness of the Issuer for federal, state and local income andfranchise tax purposes.

 

Prior to the duepresentment for registration of transfer of this Class A-1 Note, theIssuer, the Indenture Trustee and any agent of the Issuer or the IndentureTrustee may treat the Person in whose name this Class A-1 Note (as of theday of determination or as of such other date as may be specified in theIndenture) is registered as the owner hereof for all purposes, whether or notthis Class A-1 Note be overdue, and none of the Issuer, the IndentureTrustee or any such agent shall be affected by notice to the contrary.

 

The Indenture allows,with certain exceptions as therein provided, the Issuer and the IndentureTrustee to enter into one or more indentures that are supplemental to theIndenture and which effect a modification of the rights and obligations of theIssuer and the rights of the Holders of the Class A Notes under theIndenture at any time by the Issuer with the consent of the Noteholdersevidencing not less than 51% of the Class A Note Balance (subject to theright of the Insurer to exercise such consent provided that no Insurer Defaultshall have occurred and be continuing). The Indenture also permits the Indenture Trustee and the Issuer to enterinto supplemental indentures with respect to certain terms and conditions setforth in the Indenture without the consent of Holders of the Class A Notesissued thereunder.

 

The term “Issuer,” asused in this Class A-1 Note, includes any successor to the Issuer underthe Indenture.

 

The Class A-1 Notesare issuable only in registered form in denominations as provided in theIndenture, subject to certain limitations therein set forth.

 

This Class A-1 Noteand the Indenture shall be governed by, and construed in accordance with thelaws of the State of New York, without reference to its conflict of lawprovisions, and the obligations, rights and remedies of the parties hereunderand thereunder shall be determined in accordance with such laws.

 

No reference herein to theIndenture, and no provision of this Class A-1 Note or of the Indenture,shall alter or impair the obligation of the Issuer, which is absolute andunconditional, to pay the principal of and interest on this Class A-1 Noteat the times, place and rate, and in the coin or currency herein prescribed.

 

Anything herein to thecontrary notwithstanding, except as expressly provided in the TransactionDocuments, none of Wells Fargo Bank, National Association, in its individualcapacity, Wells Fargo Delaware Trust Company, in its individual capacity, anyowner of a 

 

A-1-6

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beneficialinterest in the Issuer, or any of their respective partners, beneficiaries,agents, officers, directors, employees or successors or assigns shall bepersonally liable for, nor shall recourse be had to any of them for, thepayment of principal or of interest on this Class A-1 Note or performanceof, or omission to perform, any of the covenants, obligations orindemnifications contained in the Indenture. The Holder of this Class A-1 Note, by its acceptance hereof (andeach Note Owner, by its acceptance of a beneficial interest herein), agreesthat, except as expressly provided in the Transaction Documents, in the case ofan Event of Default under the Indenture, the Holder shall have no claim againstany of the foregoing for any deficiency, loss or claim therefrom; provided,however, that nothing contained herein shall be taken to preventrecourse to, and enforcement against, the assets of the Issuer for any and allliabilities, obligations and undertakings contained in the Indenture or in thisClass A-1 Note.

 

A-1-7

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IN WITNESS WHEREOF, theIssuer has caused this instrument to be signed as of the date set forth below.

 

Date:  May 5, 2005

 
|   | FIRST INVESTORS  AUTO OWNER TRUST 2005-A |
|--------|------------------------------------------|
|   |                                     |
|   | By:                                      | WELLS FARGO  DELAWARE TRUST  COMPANY, not in its individual capacity but  solely as Owner Trustee under the Trust Agreement |
|   |                                     |
|   | By:                                      |   |   |
|   |                                     | Authorized Signatory |   |

 

A-1-8

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INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Class A-1Notes designated above and referred to in the within-mentioned Indenture.

 
|   | WELLS FARGO  BANK, NATIONAL ASSOCIATION,  not in its individual capacity but solely as Indenture Trustee |
|--------|----------------------------------------------------------------------------------------------------------|
|   |                                                                                                     |
|   | By:                                                                                                      |   |   |
|   |                                                                                                     | Authorized Signatory |   |

 

A-1-9

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ASSIGNMENT

 

Social Security ortaxpayer I.D. or other identifying number of assignee:

 
|   |
|--------|
|   |

 

FOR VALUE RECEIVED, theundersigned hereby sells, assigns and transfers unto:

 
|   |
|--------|

(name and address ofassignee)

 

the within Note and allrights 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 of Assignor |   |
|   |                  |   |
|   | */                    |
|   | Signature Guaranteed  |   |

 

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*/                                     NOTICE:  The signature to this assignment mustcorrespond with the name of the registered owner as it appears on the face ofthe within Class A-1 Note in every particular, without alteration, enlargementor any change whatever.  Such signaturemust be guaranteed by an “eligible guarantor institution” meeting therequirements of the Note Registrar.

 

A-1-10

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STATEMENT OF INSURANCE

 

A-1-11

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Exhibit A-2

$106,493,000

 

UNLESS THIS CLASS A-2NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUSTCOMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FORREGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED ISREGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS ISREQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TOCEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVEOF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY ORTO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &CO., HAS AN INTEREST HEREIN.

 

THIS CLASS A-2 NOTEHAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, ASAMENDED (THE “SECURITIES ACT”), OR THE APPLICABLE SECURITIES LAWS OF ANYSTATE.  ACCORDINGLY, TRANSFER OF THIS CLASS A-2NOTE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN SECTION 2.15 OF THEINDENTURE.  BY ITS ACCEPTANCE OF THIS CLASS A-2NOTE, THE HOLDER OF THIS CLASS A-2 NOTE IS DEEMED TO REPRESENT TO THEISSUER AND THE INDENTURE TRUSTEE THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER”AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT AND IS ACQUIRING THIS NOTE FORITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR AGENTFOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED INSTITUTIONAL BUYERS).

 

NO SALE, PLEDGE OR OTHERTRANSFER OF THIS CLASS A-2 NOTE SHALL BE MADE UNLESS SUCH SALE, PLEDGE OROTHER TRANSFER IS (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENTUNDER THE SECURITIES ACT, (B) FOR SO LONG AS THE CLASS A-2 NOTES AREELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSONTHE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A “QUALIFIEDINSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNTOR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVENTHAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (C) PURSUANTTO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THESECURITIES ACT, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED AND ANYAPPLICABLE STATE SECURITIES AND BLUE SKY LAWS OR IS MADE IN ACCORDANCE WITHEACH SUCH ACT AND STATE LAWS. THE INDENTURE TRUSTEE MAY REQUIRE AN OPINIONOF COUNSEL TO BE DELIVERED TO IT IN CONNECTION WITH ANY SALE, PLEDGE OR OTHERTRANSFER OF THIS CLASS A-2 NOTE PURSUANT TO CLAUSES (A) OR (C) ABOVE.  ALL OPINIONS OF COUNSEL REQUIRED INCONNECTION WITH ANY TRANSFER SHALL BE BY COUNSEL REASONABLY ACCEPTABLE TO THEINDENTURE TRUSTEE.

 

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EACH INVESTOR IN THIS CLASS A-2NOTE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTEDTHAT EITHER (I) IT IS NOT, AND IS NOT DIRECTLY OR INDIRECTLY ACQUIRING THIS CLASS A-2NOTE FOR, ON BEHALF OF OR WITH ANY ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHERARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACTOF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF THEINTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR A PLAN OR OTHERARRANGEMENT SUBJECT TO ANY PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S.OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIVELY SIMILAR TO THE FOREGOINGPROVISIONS OF ERISA OR THE CODE (“SIMILAR LAW”) OR (II) ITS ACQUISITION ANDHOLDING OF SUCH CLASS A-2 NOTE OR ANY INTEREST THEREIN WILL NOT CONSTITUTEOR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR THE CODE, OR AVIOLATION OF SIMILAR LAW.

 

A-2-2

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| REGISTERED   |   |                |
|--------------|--------|---------------------|
| No. A-2 |   | CUSIP NO. 32057TAE1 |

 

FIRST INVESTORS AUTO OWNER TRUST 2005-AFORM OF 4.23% CLASS A-2 ASSET-BACKED NOTES

 

First Investors AutoOwner Trust 2005-A, a statutory trust organized and existing under the laws ofthe State of Delaware (herein referred to as the “*Issuer*”),for value received, hereby promises to pay to Cede & Co., or itsregistered assigns, the principal sum of $106,493,000 (ONE HUNDRED SIX MILLIONFOUR HUNDRED NINETY THREE THOUSAND DOLLARS) payable on each Payment Date in theaggregate amount, if any, payable from the Class A Note Payment Account inrespect of principal on the Class A Notes pursuant to and in accordancewith Section 2.8 of the Indenture, dated as of May 5, 2005 (asamended, supplemented or otherwise modified and in effect from time to time,the “*Indenture*”), between the Issuer andWells Fargo Bank, National Association, a national banking association, asIndenture Trustee and Custodian (in such capacities the “*IndentureTrustee*” and the “*Custodian*”)and Section 3.5 of the Sale and Allocation Agreement; provided, however,that if not paid prior to such date, the entire unpaid principal amount of thisNote shall be due and payable on the earlier of July 16, 2012 (the “*Final Note Payment Date*”) and theRedemption Date, if any, pursuant to Section 10.1 of the Indenture.  Capitalized terms used but not defined hereinare defined in Article I of the Indenture, which also contains rules asto construction that shall be applicable herein.

 

The Issuer shall pay intereston this Class A-2 Note at the rate per annum shown above on each PaymentDate until the principal of this Class A-2 Note is paid or made availablefor payment, on the principal amount of this Class A-2 Note outstanding onthe preceding Payment Date (after giving effect to all payments of principalmade on the preceding Payment Date), subject to certain limitations containedin Section 3.1 of the Indenture. Interest on this Class A-2 Note willaccrue for each Payment Date from and including the previous Payment Date (or,in the case of the initial Payment Date or if no interest has been paid, fromthe Closing Date) to but excluding such Payment Date.  Interest will be computed on the basis of a360-day year of twelve 30 day months. Such principal of and interest on this Class A-2 Note shall be paidin the manner specified on the reverse hereof.

 

The principal of andinterest on this Class A-2 Note are payable in such coin or currency ofthe United States of America as at the time of payment is legal tender forpayment of public and private debts.  Allpayments made by the Issuer with respect to this Class A-2 Note shall beapplied first to interest due and payable on this Class A-2 Note asprovided above and then to the unpaid principal of this Class A-2 Note.

 

Reference is made to thefurther provisions of this Class A-2 Note set forth on the reverse hereof,which shall have the same effect as though fully set forth on the face of this Class A-2Note.

 

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Unless the certificate ofauthentication hereon has been executed by the Indenture Trustee whose nameappears below by manual signature, this Class A-2 Note shall not beentitled to any benefit under the Indenture referred to on the reverse hereof,or be valid or obligatory for any purpose.

 

This Class A-2 Noteis one of a duly authorized issue of Class A-2 Notes of the Issuer,designated as its Class A-2 Asset-Backed Notes, are issued under theIndenture, to which Indenture and all indentures supplemental thereto referenceis hereby made for a statement of the respective rights and obligationsthereunder of the Issuer, the Indenture Trustee and the Holders of the Class A-2Notes.  The Class A-2 Notes aresubject to all terms of the Indenture.

 

This Class A-2 Noteis and will be secured by the Collateral pledged as security therefor asprovided in the Indenture.

 

Principal of this Class A-2Note is payable on each Payment Date as described on the face hereof.  “*Payment Date*”means the fifteenth day of each month or, if any such day is not a BusinessDay, the next succeeding Business Day, commencing May 16, 2005.

 

The entire unpaidprincipal amount of this Class A-2 Note shall be due and payable on theearlier of the Final Note Payment Date and the Redemption Date, if any,pursuant to Section 10.1 of the Indenture. Notwithstanding the foregoing, the entire unpaid principal amount ofthis Note shall be due and payable on the date on which an Event of Defaultshall have occurred and the Notes have to be immediately due and payable in themanner provided in Section 5.2 of the Indenture.  Notwithstanding the foregoing sentence, this Class A-2Note shall become immediately due and payable without declaration, notice ordemand by or to any Person upon the occurrence of an Event of Default specifiedin Section 5.1(i) of the Indenture with respect to the Issuer.  All principal payments on the Class A-2Notes shall be made pro rata to the Class A-2 Holders entitled thereto.

 

Payments of interest onthis Class A-2 Note due and payable on each Payment Date, together withthe installment of principal, if any, to the extent not in full payment of thisNote, shall be made by check mailed to the Person in whose name this Class A-2Note is registered appears as the Registered Holder of this Class A-2 Note(or one or more Predecessor Notes) on the related Record Date by check mailedfirst-class postage prepaid to such Person’s address as it appears on the NoteRegister on such Record Date; provided, however, that, unless Definitive Noteshave been issued pursuant to Section 2.13 of the Indenture, if this Class A-2Note is registered in the name of the nominee of the Clearing Agency(initially, such nominee to be Cede & Co.), payments will be made bywire transfer in immediately available funds to the account designated by suchnominee.  Any reduction in the principalamount of this Class A-2 Note effected by any payments made on any PaymentDate shall be binding upon all future Holders of this Class A-2 Note andof any Class A-2 Note issued upon the registration of transfer hereof orin exchange hereof or in lieu hereof, whether or not noted hereon.  If funds are expected to be available, asprovided in the Indenture, for payment in full of the then remaining unpaidprincipal amount of this Class A-2 Note on a Payment Date, then theIndenture Trustee, in the name of and on behalf of the Issuer, will notify thePerson who was the registered Holder hereof as of the Record Date precedingsuch Payment Date by notice mailed or transmitted by facsimile prior to suchPayment Date, and the amount then due and payable shall be payable only upon 

 

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presentation andsurrender of this Class A-2 Note at the Indenture Trustee’s Corporate TrustOffice or at the office of the Indenture Trustee’s agent appointed for suchpurposes located at Sixth Street and Marquette Avenue MAC N9311-161,Minneapolis, Minnesota  55479,Attention:  Corporate Trust ServicesAsset-Backed Administration or such other address as the Indenture Trustee maydesignate from time to time as its Corporate Trust Offices in accordance withthe Indenture.

 

The Issuer shall payinterest on overdue installments of interest at the Note Rate applicable to theClass A-2 Notes to the extent permitted by law.

 

The Class A-2 Notesare entitled to the benefits of the Policy issued by the Insurer.  The Insurer is obligated to pay, inaccordance with the terms of the Policy as described in the “Statement ofInsurance” attached hereto.

 

As provided in theIndenture, the Notes may be redeemed in the manner and to the extent describedin Section 10.1 of the Indenture.

 

As provided in theIndenture, and subject to certain limitations set forth therein, the transferof this Class A-2 Note may be registered on the Note Register uponsurrender of this Class A-2 Note for registration of transfer at theoffice or agency designated by the Issuer pursuant to the Indenture, dulyendorsed by, or accompanied by a written instrument of transfer in form satisfactoryto the Indenture Trustee duly executed by, the Holder hereof or such Holder’sattorney duly authorized in writing, and thereupon one or more new Class A-2Notes of authorized denominations and in the same aggregate principal amountwill be issued to the designated transferee or transferees.  No service charge will be charged for anyregistration of transfer or exchange of this Class A-2 Note, but thetransferor may be required to pay a sum sufficient to cover any tax or othergovernmental charge that may be imposed in connection with any suchregistration of transfer or exchange.

 

Each Noteholder or NoteOwner, by its acceptance of this Class A-2 Note or, in the case of a NoteOwner, a beneficial interest in this Class A-2 Note, covenants and agreesthat no recourse may be taken, directly or indirectly, with respect to theobligations of the Issuer, the Owner Trustee or the Indenture Trustee on this Class A-2Note or under the Indenture or any certificate or other writing delivered inconnection therewith, against (i) the Indenture Trustee or the OwnerTrustee, each in its individual capacity, (ii) any owner of a beneficialinterest in the Issuer or (iii) any partner, owner, beneficiary, agent,officer, director or employee of the Indenture Trustee or the Owner Trustee,each in its individual capacity, any holder of a beneficial interest in theIssuer, the Owner Trustee or the Indenture Trustee or of any successor orassign of the Indenture Trustee or the Owner Trustee, each in its individualcapacity, except as any such Person may have expressly agreed (it beingunderstood that the Indenture Trustee and the Owner Trustee have no suchobligations in their individual capacities) and except that any such partner,owner or beneficiary shall be fully liable, to the extent provided byapplicable law, for any unpaid consideration for stock, unpaid capitalcontribution for stock, unpaid capital contribution or failure to pay anyinstallment or call owing to such entity.

 

Each Noteholder or NoteOwner, by accepting this Class A-2 Note or a beneficial interest in this Class A-2Note, as the case may be, hereby covenants and agrees that it will not at any 

 

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time instituteagainst, join in any institution against, or knowingly or intentionallycooperate or encourage any other Person in instituting against, the Depositoror the Issuer, any bankruptcy, reorganization, arrangement, insolvency orliquidation proceedings or other proceedings under any United States federal orstate bankruptcy or similar law in connection with any obligations relating tothe Notes, the Indenture or any of the other Transaction Documents.

 

The Issuer has enteredinto the Indenture and this Class A-2 Note is issued with the intentionthat, for federal, state and local income, and franchise tax purposes, the Class A-2Notes will qualify as indebtedness of the Issuer secured by the TrustEstate.  The Issuer, by entering into theIndenture and this Class A-2 Note, and each Noteholder, by its acceptanceof this Class A-2 Note (and each Note Owner by its acceptance of abeneficial interest in this Class A-2 Note), agree to treat this Class A-2Note as indebtedness of the Issuer for federal, state and local income andfranchise tax purposes.

 

Prior to the duepresentment for registration of transfer of this Class A-2 Note, theIssuer, the Indenture Trustee and any agent of the Issuer or the IndentureTrustee may treat the Person in whose name this Class A-2 Note (as of theday of determination or as of such other date as may be specified in theIndenture) is registered as the owner hereof for all purposes, whether or notthis Class A-2 Note be overdue, and none of the Issuer, the IndentureTrustee or any such agent shall be affected by notice to the contrary.

 

The Indenture allows,with certain exceptions as therein provided, the Issuer and the IndentureTrustee to enter into one or more indentures that are supplemental to theIndenture and which effect a modification of the rights and obligations of theIssuer and the rights of the Holders of the Class A Notes under theIndenture at any time by the Issuer with the consent of the Noteholdersevidencing not less than 51% of the Class A Note Balance (subject to theright of the Insurer to exercise such consent provided that no Insurer Defaultshall have occurred and be continuing). The Indenture also permits the Indenture Trustee and the Issuer to enterinto supplemental indentures with respect to certain terms and conditions setforth in the Indenture without the consent of Holders of the Class A Notesissued thereunder.

 

The term “Issuer,” asused in this Class A-2 Note, includes any successor to the Issuer underthe Indenture.

 

The Class A-2 Notesare issuable only in registered form in denominations as provided in theIndenture, subject to certain limitations therein set forth.

 

This Class A-2 Noteand the Indenture shall be governed by, and construed in accordance with thelaws of the State of New York, without reference to its conflict of law provisions,and the obligations, rights and remedies of the parties hereunder andthereunder shall be determined in accordance with such laws.

 

No reference herein tothe Indenture, and no provision of this Class A-2 Note or of theIndenture, shall alter or impair the obligation of the Issuer, which isabsolute and unconditional, to pay the principal of and interest on this Class A-2Note at the times, place and rate, and in the coin or currency hereinprescribed.

 

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Anything herein to thecontrary notwithstanding, except as expressly provided in the TransactionDocuments, none of Wells Fargo Bank, National Association, in its individualcapacity, Wells Fargo Delaware Trust Company, in its individual capacity, anyowner of a beneficial interest in the Issuer, or any of their respectivepartners, beneficiaries, agents, officers, directors, employees or successorsor assigns shall be personally liable for, nor shall recourse be had to any ofthem for, the payment of principal or of interest on this Class A-2 Noteor performance of, or omission to perform, any of the covenants, obligations orindemnifications contained in the Indenture. The Holder of this Class A-2 Note, by its acceptance hereof (andeach Note Owner, by its acceptance of a beneficial interest herein), agreesthat, except as expressly provided in the Transaction Documents, in the case ofan Event of Default under the Indenture, the Holder shall have no claim againstany of the foregoing for any deficiency, loss or claim therefrom; provided,however, that nothing contained herein shall be taken to preventrecourse to, and enforcement against, the assets of the Issuer for any and allliabilities, obligations and undertakings contained in the Indenture or in thisClass A-2 Note.

 

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IN WITNESS WHEREOF, theIssuer has caused this instrument to be signed as of the date set forth below.

 

Date:  May 5, 2005

 
|   | FIRST INVESTORS  AUTO OWNER TRUST 2005-A |
|--------|------------------------------------------|
|   |                                     |
|   | By:                                      | WELLS FARGO  DELAWARE TRUST  COMPANY, not in its individual capacity but  solely as Owner Trustee under the Trust Agreement |
|   |                                     |
|   | By:                                      |   |   |
|   |                                     | Authorized Signatory |   |

 

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INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Class A-2Notes designated above and referred to in the within-mentioned Indenture.

 
|   | WELLS FARGO  BANK, NATIONAL ASSOCIATION,   not in its individual capacity but solely as Indenture Trustee |
|--------|-----------------------------------------------------------------------------------------------------------|
|   |                                                                                                      |
|   | By:                                                                                                       |   |   |
|   |                                                                                                      | Authorized Signatory |   |

 

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ASSIGNMENT

 

Social Security ortaxpayer I.D. or other identifying number of assignee:

 
|   |
|--------|
|   |

 

FOR VALUE RECEIVED, theundersigned hereby sells, assigns and transfers unto:

 
|   |
|--------|

(name and address ofassignee)

 

the within Note and allrights 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 of Assignor |   |
|   |                  |   |
|   | */                    |
|   | Signature Guaranteed  |   |

 

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*/                                     NOTICE:  The signature to this assignment mustcorrespond with the name of the registered owner as it appears on the face ofthe within Class A-2 Note in every particular, without alteration,enlargement or any change whatever.  Suchsignature must be guaranteed by an “eligible guarantor institution” meeting therequirements of the Note Registrar.

 

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STATEMENT OF INSURANCE

 

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Exhibit B

$5,427,618.68

 

THIS CLASS B NOTEHAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “*SECURITIES ACT*”) OR ANY STATESECURITIES OR “BLUE SKY” LAWS.  THEHOLDER HEREOF, BY PURCHASING THIS CLASS B NOTE, AGREES THAT THIS NOTE MAY BERESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO AN AFFILIATE OF THEDEPOSITOR, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THESECURITIES ACT OR (3) IN RELIANCE ON AN EXEMPTION FROM THE REGISTRATIONREQUIREMENTS OF THE SECURITIES ACT AND SUBJECT TO THE ISSUER’S AND THEINDENTURE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRETHE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATIONSATISFACTORY TO EACH OF THEM.  ANYNOTEHOLDER WILL, AND EACH SUBSEQUENT NOTEHOLDER IS REQUIRED TO, NOTIFY ANYPURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TOABOVE.  THE ISSUER IS NOT OBLIGATED TOREGISTER THIS CLASS B NOTE UNDER THE 1933 ACT OR ANY STATE SECURITIES ORBLUE SKY LAWS.  NO TRANSFER OF THIS CLASS BNOTE SHALL BE PERMITTED TO THE EXTENT THAT SUCH TRANSFER WOULD RESULT IN MORETHAN 80 HOLDERS (WITHIN THE MEANING OF TREASURY REGULATION SECTION 1.7704-1(H))OF CLASS B NOTES AND BENEFICIAL INTERESTS IN THE ISSUER IN THEAGGREGATE.  NO TRANSFER OF THIS CLASS BNOTE MAY BE MADE TO ANY PERSON (A “PASS-THROUGH ENTITY”) THAT IS APARTNERSHIP (INCLUDING ANY OTHER ENTITY TREATED AS A PARTNERSHIP FOR INCOME TAXPURPOSES), S CORPORATION OR GRANTOR TRUST UNLESS SUCH PASS-THROUGH ENTITY ISABLE TO REPRESENT THAT THIS CLASS B NOTE REPRESENTS LESS THAN 50% OF THEFAIR MARKET VALUE OF ALL ASSETS OF SUCH ENTITY. NOTWITHSTANDING THE FOREGOING, NO TRANSFER OF THIS CLASS B NOTESHALL BE MADE EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THEINDENTURE AND IN THIS CLASS B NOTE. TRANSFER OF THIS CLASS B NOTE IS SUBJECT TO ADDITIONAL TRANSFERRESTRICTIONS CONTAINED IN SECTION 2.16 OF THE INDENTURE.  EACH HOLDER OF THIS CLASS B NOTE AGREESTHAT THIS CLASS B NOTE IS SUBJECT TO THE PROVISIONS OF ARTICLE 8 OFTHE UNIFORM COMMERCIAL CODE AS IN EFFECT IN ALL APPLICABLE JURISDICTIONS.

 

No. B-1

 

FIRST INVESTORS AUTO OWNER TRUST 2005-A

 

FORM OF CLASS B ASSET-BACKED NOTES

 

First Investors AutoOwner Trust 2005-A, a statutory trust organized and existing under the laws ofthe State of Delaware (herein referred to as the “*Issuer*”),for value received, hereby 

 

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promises to pay to**First Investors Auto Funding Corporation**orits registered assigns, the principal sum of $5,427,618.68 (FIVE MILLION FOURHUNDRED TWENTY SEVEN THOUSAND SIX HUNDRED EIGHTEEN DOLLARS AND SIXTY EIGHTCENTS) payable on each Payment Date in the aggregate amount, if any, payablefrom the Class B Note Payment Account in respect of principal on the Class BNotes pursuant to and in accordance with Section 2.8 of the Indenture,dated as of May 5, 2005 (as amended, supplemented or otherwise modifiedand in effect from time to time, the “*Indenture*”),between the Issuer and Wells Fargo Bank, National Association, a nationalbanking association, as Indenture Trustee and Custodian (in such capacities the“*Indenture Trustee*” and the “*Custodian*”) and Section 3.5 ofthe Sale and Allocation Agreement; provided, however, that if notpaid prior to such date, the entire unpaid principal amount of this Note shallbe due and payable on the earlier of July 16, 2012 (the “*Final Note Payment Date*”) and theRedemption Date, if any, pursuant to Section 10.1 of the Indenture.  Capitalized terms used but not defined hereinare defined in Article I of the Indenture, which also contains rules asto construction that shall be applicable herein.

 

Principal of this Class BNote shall be paid in the manner specified on the reverse hereof.

 

The principal of this Class BNote is payable in such coin or currency of the United States of America as atthe time of payment is legal tender for payment of public and private debts.

 

This Class B Noteshall not accrue interest.

 

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

 

Unless the certificate ofauthentication hereon has been executed by the Indenture Trustee whose nameappears below by manual signature, this Class B Note shall not be entitledto any benefit under the Indenture referred to on the reverse hereof, or bevalid or obligatory for any purpose.

 

[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK.]

 

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This Class B Note isone of a duly authorized issue of Class B Notes of the Issuer, designatedas its Class B Asset-Backed Notes, are issued under the Indenture, towhich Indenture and all indentures supplemental thereto reference is herebymade for a statement of the respective rights and obligations thereunder of theIssuer, the Indenture Trustee and the Holders of the Notes.  The Class B Notes are subject to allterms of the Indenture.

 

This Class Note isand will be equally and ratably secured by the Collateral pledged as securitytherefor as provided in the Indenture.

 

Principal of this Class BNote is due and payable on each Payment Date as described on the facehereof.  “*PaymentDate*” means the fifteenth day of each month or, if any such dayis not a Business Day, the next succeeding Business Day, commencing May 16,2005.

 

As described above, theentire unpaid principal amount of this Class B Note shall be due andpayable on the earlier of the Final Note Payment Date and the Redemption Date,if any, pursuant to Section 10.1 of the Indenture.  Notwithstanding the foregoing, the entireunpaid principal amount of this Note shall be due and payable on the date onwhich an Event of Default shall have occurred and the Notes have been declaredto be immediately due and payable in the manner provided in Section 5.2 ofthe Indenture.  Notwithstanding theforegoing sentence, this Class B Note shall become immediately due andpayable without declaration, notice or demand by or to any Person upon theoccurrence of an Event of Default specified in Section 5.1(i) of theIndenture with respect to the Issuer. All principal payments on the Class B Notes shall be made pro ratato the Class B Holders entitled thereto.

 

Installments ofprincipal, if any, to the extent not in full payment of this Note, shall bemade by check mailed to the Person in whose name this Class B Note isregistered appears as the Registered Holder of this Class B Note (or oneor more Predecessor Notes) on the related Record Date by wire transfer inimmediately available funds to the account designated by such Holder.  Any reduction in the principal amount of thisClass B Note effected by any payments made on any Payment Date shall bebinding upon all future Holders of this Class B Note and of any Class BNote issued upon the registration of transfer hereof or in exchange hereof orin lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, forpayment in full of the then remaining unpaid principal amount of this Class BNote on a Payment Date, then the Indenture Trustee, in the name of and onbehalf of the Issuer, will notify the Person who was the registered Holderhereof as of the Record Date preceding such Payment Date by notice mailed ortransmitted by facsimile prior to such Payment Date, and the amount then dueand payable shall be payable only upon presentation and surrender of this Noteat the Indenture Trustee’s Corporate Trust Office or at the office of theIndenture Trustee’s agent appointed for such purposes located at Sixth Streetand Marquette Avenue MAC N9311-161, Minneapolis, Minnesota 55479, Attention:Corporate Trust Services Asset-Backed Administration or such other address asthe Indenture Trustee may designate from time to time as its Corporate TrustOffices in accordance with the Indenture.

 

As provided in theIndenture, the Notes may be redeemed in the manner and to the extent describedin Section 10.1 of the Indenture.

 

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As provided in theIndenture, and subject to certain limitations set forth therein, the transferof this Class B Note may be registered on the Note Register upon surrenderof this Note for registration of transfer at the office or agency designated bythe Issuer pursuant to the Indenture, duly endorsed by, or accompanied by awritten instrument of transfer in form satisfactory to the Indenture Trusteeduly executed by, the Holder hereof or such Holder’s attorney duly authorizedin writing, and thereupon one or more new Class B Notes of authorizeddenominations and in the same aggregate principal amount will be issued to thedesignated transferee or transferees.  Noservice charge will be charged for any registration of transfer or exchange ofthis Class B Note, but the transferor may be required to pay a sumsufficient to cover any tax or other governmental charge that may be imposed inconnection with any such registration of transfer or exchange.

 

Each Noteholder, by itsacceptance of this Class B Note, covenants and agrees that no recourse maybe taken, directly or indirectly, with respect to the obligations of theIssuer, the Owner Trustee or the Indenture Trustee on this Class B Note orunder the Indenture or any certificate or other writing delivered in connectiontherewith, against (i) the Indenture Trustee or the Owner Trustee, each inits individual capacity, (ii) any owner of a beneficial interest in theIssuer or (iii) any partner, owner, beneficiary, agent, officer, directoror employee of the Indenture Trustee or the Owner Trustee, each in itsindividual capacity, any holder of a beneficial interest in the Issuer, theOwner Trustee or the Indenture Trustee or of any successor or assign of theIndenture Trustee or the Owner Trustee, each in its individual capacity, exceptas any such Person may have expressly agreed (it being understood that theIndenture Trustee and the Owner Trustee have no such obligations in theirindividual capacities) and except that any such partner, owner or beneficiaryshall be fully liable, to the extent provided by applicable law, for any unpaidconsideration for stock, unpaid capital contribution for stock, unpaid capitalcontribution or failure to pay any installment or call owing to such entity.

 

Each Noteholder, by acceptingthis Class B Note hereby covenants and agrees that it will not at any timeinstitute against, join in any institution against, or knowingly orintentionally cooperate or encourage any other Person in instituting against,the Depositor or the Issuer, any bankruptcy, reorganization, arrangement,insolvency or liquidation proceedings or other proceedings under any UnitedStates federal or state bankruptcy or similar law in connection with anyobligations relating to the Notes, the Indenture or any of the otherTransaction Documents.

 

The Issuer has enteredinto the Indenture and this Class B Note is issued with the intentionthat, for federal, state and local income, and franchise tax purposes, the Class BNotes will qualify as indebtedness of the Issuer secured by the TrustEstate.  The Issuer, by entering into theIndenture and this Class B Note, and each Noteholder, by its acceptance ofthis Class B Note, agree to treat this Class B Note as indebtednessof the Issuer for federal, state and local income and franchise tax purposes.

 

Prior to the duepresentment for registration of transfer of this Class B Note, the Issuer,the Indenture Trustee and any agent of the Issuer or the Indenture Trustee maytreat the Person in whose name this Class B Note (as of the day ofdetermination or as of such other date as may be specified in the Indenture) isregistered as the owner hereof for all purposes, whether or not this 

 

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Class B Notebe overdue, and none of the Issuer, the Indenture Trustee or any such agentshall be affected by notice to the contrary.

 

The Indenture allows,with certain exceptions as therein provided, the Issuer and the IndentureTrustee to enter into one or more indentures that are supplemental to theIndenture and which effect a modification of the rights and obligations of theIssuer and the rights of the Holders of the Notes under the Indenture at anytime by the Issuer with the consent of the Noteholders evidencing not less than51% of the Class A Note Balance (subject to the right of the Insurer toexercise such consent provided that no Insurer Default shall have occurred andbe continuing).  The Indenture alsopermits the Indenture Trustee and the Issuer to enter into supplementalindentures with respect to certain terms and conditions set forth in theIndenture without the consent of Holders of the Notes issued thereunder.

 

The term “Issuer,” asused in this Class B Note, includes any successor to the Issuer under theIndenture.

 

The Class B Notesare issuable only in certificated form in denominations as provided in theIndenture, subject to certain limitations therein set forth.

 

This Class B Noteand the Indenture shall be governed by, and construed in accordance with thelaws of the State of New York without reference to its conflict of lawprovisions, and the obligations, rights and remedies of the parties hereunderand thereunder shall be determined in accordance with such laws.

 

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

 

Anything herein to thecontrary notwithstanding, except as expressly provided in the TransactionDocuments, none of Wells Fargo Bank, National Association, in its individualcapacity, Wells Fargo Delaware Trust Company in its individual capacity, anyowner of a beneficial interest in the Issuer, or any of their respectivepartners, beneficiaries, agents, officers, directors, employees or successorsor assigns shall be personally liable for, nor shall recourse be had to any ofthem for, the payment of principal or of interest on this Class B Note orperformance of, or omission to perform, any of the covenants, obligations orindemnifications contained in the Indenture. The Holder of this Class B Note, by its acceptance hereof, agreesthat, except as expressly provided in the Transaction Documents, in the case ofan Event of Default under the Indenture, the Holder shall have no claim againstany of the foregoing for any deficiency, loss or claim therefrom; provided,however, that nothing contained herein shall be taken to prevent recourse to,and enforcement against, the assets of the Issuer for any and all liabilities,obligations and undertakings contained in the Indenture or in this Class BNote.

 

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WITNESS WHEREOF, theIssuer has caused this instrument to be signed as of the date set forth below.

 

Date:  May 5, 2005

 
|   | FIRST INVESTORS  AUTO OWNER TRUST 2005-A |
|--------|------------------------------------------|
|   |                                     |
|   | By:                                      | WELLS FARGO  DELAWARE TRUST  COMPANY, not in its individual capacity but  solely as Owner Trustee under the Trust Agreement |
|   |                                     |
|   | By:                                      |   |   |
|   |                                     | Authorized Signatory |   |

 

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INDENTURE TRUSTEE’SCERTIFICATE OF AUTHENTICATION

 

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

 
|   | WELLS FARGO  BANK, NATIONAL ASSOCIATION,   not in its individual capacity but solely as Indenture Trustee |
|--------|-----------------------------------------------------------------------------------------------------------|
|   |                                                                                                      |
|   | By:                                                                                                       |   |   |
|   |                                                                                                      | Authorized Signatory |   |

 

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ASSIGNMENT

 

Social Security ortaxpayer I.D. or other identifying number of assignee:

 
|   |
|--------|
|   |

 

FOR VALUE RECEIVED, theundersigned hereby sells, assigns and transfers unto:

 
|   |   |
|--------|--------|
|   |

(name and address ofassignee)

 

the within Note and allrights 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 of Assignor |   |
|   |                  |   |
|   | */                    |
|   | Signature Guaranteed  |   |

 

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*/                                     NOTICE:  The signature to this assignment mustcorrespond with the name of the registered owner as it appears on the face ofthe within Class B Note in every particular, without alteration,enlargement or any change whatever.  Suchsignature must be guaranteed by an “eligible guarantor institution” meeting therequirements of the Note Registrar.

 

B-8

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Exhibit C

 

[RESERVED]

 

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Exhibit D

 

REQUEST FOR RELEASE OF CONTRACT

 

[Date]

 

TO:                            WellsFargo Bank, National Association

  asCustodian

ABSCustody Vault

751Kasota Avenue

MACN9328-011

Minneapolis,Minnesota  55414

Attention:                                         CorporateTrust Services --Asset-Backed Administration

 

In connection with theContract Files which are owned by First Investors Auto Owner Trust 2005-A (the “*Issuer*”) and are pledged by theIssuer to Wells Fargo Bank, National Association, as Indenture Trustee (the “*Indenture Trustee*”), theundersigned, as [**Indenture Trustee][Servicer]**,requests the release of the Contract File related to the Contract identifiedbelow by its number.  The undersignedshall return the documents to you when the undersigned’s need therefor nolonger exists, except where the Contract is paid in full or otherwise disposedof.  Capitalized terms used but nototherwise defined herein shall have the respective meanings assigned to suchterms in the Indenture, dated as of May 5, 2005, between Wells Fargo Bank,National Association, as Indenture Trustee and Custodian, and the Issuer.

 

Reason for DocumentRequest: (check one)

 
| Code |   |   |   | Reason       |
|------|--------|--------|--------|--------------|
| 5    |   |   |   | Liquidation  |
| 1    |   |   |   | Paid Off     |
| 4    |   |   |   | Repurchase   |
| 19   |   |   |   | Servicing    |
| 3    |   |   |   | Substitution |

 
|                                    | By              |   |
|-----------------------------------------|-----------------|--------|
|                                    |            | Name:  |
|                                    |            | Title: |
|                                    |            |
|                                    | CONTRACT NUMBER |   |
|                                    | CUSTOMER        |   |
| Address where  files are to be shipped: |            |   |
|                                    |            |   |   |
|                                    |            |   |   |
|                                    |            |   |   |
|                                    |            |   |   |
|                                    |            |   |   |
| Shipping Number:                        |            |   |   |   |
| Carrier:                                |            |   |   |   |
|                                         |                 |        |  |  |  |  |  |

 

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