Exhibit 4.2


 




 





INDENTURE


 


Dated as of
[                ,
200  ]


 


among


 


HSBC AUTOMOTIVE TRUST
[200  -  ]


Issuer,


 


[INDENTURE TRUSTEE]


Indenture Trustee


 


and


 


[ADMINISTRATOR]


Administrator




 





 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I. Definitions and Incorporation by Reference

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1

  	
  Definitions

  	
  1

  
	
  SECTION 1.2

  	
  Incorporation by Reference of the Trust Indenture Act

  	
  6

  
	
  SECTION 1.3

  	
  Rules of Construction

  	
  7

  
	
  SECTION 1.4

  	
  Action by or Consent of Noteholders and Certificateholders

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE II. The Notes

  	
  8

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1

  	
  Form; Amount Limited; Issuable in Series

  	
  8

  
	
  SECTION 2.2

  	
  Execution, Authentication and Delivery

  	
  8

  
	
  SECTION 2.3

  	
  Temporary Notes

  	
  9

  
	
  SECTION 2.4

  	
  Registration; Registration of Transfer and Exchange

  	
  9

  
	
  SECTION 2.5

  	
  Mutilated, Destroyed, Lost or Stolen Notes

  	
  12

  
	
  SECTION 2.6

  	
  Persons Deemed Owner

  	
  13

  
	
  SECTION 2.7

  	
  Payment of Principal and Interest; Defaulted Interest

  	
  13

  
	
  SECTION 2.8

  	
  Cancellation

  	
  14

  
	
  SECTION 2.9

  	
  Reserved

  	
  14

  
	
  SECTION 2.10

  	
  Book-Entry Notes

  	
  14

  
	
  SECTION 2.11

  	
  Notices to Clearing Agency

  	
  15

  
	
  SECTION 2.12

  	
  Definitive Notes

  	
  15

  
	
  SECTION 2.13

  	
  Final Distribution

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE III. Covenants

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1

  	
  Payment of Principal and Interest

  	
  17

  
	
  SECTION 3.2

  	
  Maintenance of Office or Agency

  	
  17

  
	
  SECTION 3.3

  	
  Money for Payments to be Held in Trust

  	
  17

  
	
  SECTION 3.4

  	
  Existence

  	
  19

  
	
  SECTION 3.5

  	
  Protection of Series Trust Estate

  	
  19

  
	
  SECTION 3.6

  	
  Opinions as to Series Trust Estate

  	
  20

  
	
  SECTION 3.7

  	
  Performance of Obligations; Servicing of Receivables

  	
  21

  
	
  SECTION 3.8

  	
  Negative Covenants

  	
  21

  
	
  SECTION 3.9

  	
  Annual Statement as to Compliance

  	
  22

  
	
  SECTION 3.10

  	
  Issuer May Consolidate, Etc. Only on Certain Terms

  	
  23

  
	
  SECTION 3.11

  	
  Successor or Transferee

  	
  25

  
	
  SECTION 3.12

  	
  No Other Business

  	
  25

  
	
  SECTION 3.13

  	
  No Borrowing

  	
  25

  
	
  SECTION 3.14

  	
  Servicer’s Obligations

  	
  25

  
	
  SECTION 3.15

  	
  Guarantees, Loans, Advances and Other Liabilities

  	
  25

  
	
  SECTION 3.16

  	
  Capital Expenditures

  	
  26

  
	
  SECTION 3.17

  	
  Compliance with Laws

  	
  26

  
	
  SECTION 3.18

  	
  Restricted Payments

  	
  26

  
	
  SECTION 3.19

  	
  Notice of Events of Default

  	
  26

  
	
  SECTION 3.20

  	
  Further Instruments and Acts

  	
  26

  
	
  SECTION 3.21

  	
  Amendments of Sale and Servicing Agreement and Trust Agreement

  	
  26

  
	
  SECTION 3.22

  	
  Income Tax Characterization

  	
  27

  



 


i

















 


	
  ARTICLE IV. Satisfaction and Discharge

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1

  	
  Satisfaction and Discharge of Indenture

  	
  27

  
	
  SECTION 4.2

  	
  Application of Trust Money

  	
  28

  
	
  SECTION 4.3

  	
  Repayment of Monies Held by Note Paying Agent

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE V. Remedies

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1

  	
  Events of Default

  	
  28

  
	
  SECTION 5.2

  	
  Collection of Indebtedness and Suits for Enforcement by Indenture
  Trustee

  	
  28

  
	
  SECTION 5.3

  	
  Limitation of Suits

  	
  30

  
	
  SECTION 5.4

  	
  Unconditional Rights of Noteholders To Receive Principal and Interest

  	
  31

  
	
  SECTION 5.5

  	
  Restoration of Rights and Remedies

  	
  31

  
	
  SECTION 5.6

  	
  Rights and Remedies Cumulative

  	
  31

  
	
  SECTION 5.7

  	
  Delay or Omission Not a Waiver

  	
  32

  
	
  SECTION 5.8

  	
  Limitation on Voting of Preferred Stock; Control by Noteholders

  	
  32

  
	
  SECTION 5.9

  	
  Waiver of Past Defaults

  	
  32

  
	
  SECTION 5.10

  	
  Undertaking for Costs

  	
  33

  
	
  SECTION 5.11

  	
  Waiver of Stay or Extension Laws

  	
  33

  
	
  SECTION 5.12

  	
  Action on Notes

  	
  33

  
	
  SECTION 5.13

  	
  Performance and Enforcement of Certain Obligations

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI. The Indenture Trustee and the Administrator

  	
  34

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1

  	
  Duties of Indenture Trustee

  	
  34

  
	
  SECTION 6.2

  	
  Rights of Indenture Trustee

  	
  36

  
	
  SECTION 6.3

  	
  Individual Rights of Indenture Trustee

  	
  38

  
	
  SECTION 6.4

  	
  Indenture Trustee’s Disclaimer

  	
  38

  
	
  SECTION 6.5

  	
  Notice of Defaults

  	
  38

  
	
  SECTION 6.6

  	
  Reports by Servicer to Holders

  	
  38

  
	
  SECTION 6.7

  	
  Indenture Trustee Compensation and Indemnification

  	
  38

  
	
  SECTION 6.8

  	
  Replacement of Indenture Trustee

  	
  39

  
	
  SECTION 6.9

  	
  Successor Indenture Trustee by Merger

  	
  41

  
	
  SECTION 6.10

  	
  Appointment of Co-Indenture Trustee or Separate Indenture Trustee

  	
  42

  
	
  SECTION 6.11

  	
  Eligibility: Disqualification

  	
  43

  
	
  SECTION 6.12

  	
  Preferential Collection of Claims Against Issuer

  	
  43

  
	
  SECTION 6.13

  	
  Representations and Warranties of the Indenture Trustee

  	
  43

  
	
  SECTION 6.14

  	
  Waiver of Setoffs

  	
  44

  
	
  SECTION 6.15

  	
  No Consent to Certain Acts of Seller

  	
  44

  
	
  SECTION 6.16

  	
  Duties, Liabilities and Limitations on Liability of Administrator.

  	
  44

  
	
  SECTION 6.17

  	
  Administrator Compensation and Indemnification.

  	
  45

  
	
  SECTION 6.18

  	
  Replacement of Administrator.

  	
  46

  
	
  SECTION 6.19

  	
  Successor Administrator by Merger

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII. Noteholders’ Lists and Reports

  	
  48

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1

  	
  Issuer To Furnish To Indenture Trustee and Administrator Names and
  Addresses of Noteholders

  	
  48

  



 


ii

















 


	
  SECTION 7.2

  	
  Preservation of Information; Communications to Noteholders

  	
  48

  
	
  SECTION 7.3

  	
  Reports by Issuer

  	
  49

  
	
  SECTION 7.4

  	
  Reports by Indenture Trustee

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII. Accounts, Disbursements and Releases

  	
  50

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1

  	
  Collection of Money

  	
  50

  
	
  SECTION 8.2

  	
  Release of Series Trust Estate

  	
  50

  
	
  SECTION 8.3

  	
  Opinion of Counsel

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX. Amendments; the Series Supplement

  	
  51

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1

  	
  Amendments Without Consent of Noteholders

  	
  51

  
	
  SECTION 9.2

  	
  Amendments With Consent of Noteholders

  	
  52

  
	
  SECTION 9.3

  	
  Series Supplement Authorizing the Notes

  	
  54

  
	
  SECTION 9.4

  	
  Execution of the Series Supplement

  	
  54

  
	
  SECTION 9.5

  	
  Effect of Series Supplement

  	
  54

  
	
  SECTION 9.6

  	
  Conformity With Trust Indenture Act

  	
  54

  
	
  SECTION 9.7

  	
  Reference in Notes to the Series Supplement

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
   

  	
  55

  
	
   

  	
   

  	
   

  
	
  SECTION 10.1

  	
  [Note Insurer’s Rights Regarding Actions, Proceedings or Investigations

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI. Miscellaneous

  	
  56

  
	
   

  	
   

  	
   

  
	
  SECTION 11.1

  	
  Compliance Certificates and Opinions, etc.

  	
  56

  
	
  SECTION 11.2

  	
  Form of Documents Delivered to Indenture Trustee

  	
  58

  
	
  SECTION 11.3

  	
  Acts of Noteholders

  	
  58

  
	
  SECTION 11.4

  	
  Notices, etc., to Indenture Trustee, Issuer and Rating Agencies

  	
  59

  
	
  SECTION 11.5

  	
  Notices to Noteholders; Waiver

  	
  60

  
	
  SECTION 11.6

  	
  Alternate Payment and Notice Provisions

  	
  60

  
	
  SECTION 11.7

  	
  Conflict with TIA

  	
  61

  
	
  SECTION 11.8

  	
  Effect of Headings and Table of Contents

  	
  61

  
	
  SECTION 11.9

  	
  Successors and Assigns

  	
  61

  
	
  SECTION 11.10

  	
  Separability

  	
  61

  
	
  SECTION 11.11

  	
  Benefits of Indenture

  	
  61

  
	
  SECTION 11.12

  	
  Legal Holidays

  	
  61

  
	
  SECTION 11.13

  	
  GOVERNING LAW

  	
  62

  
	
  SECTION 11.14

  	
  Counterparts

  	
  62

  
	
  SECTION 11.15

  	
  Recording of Indenture

  	
  62

  
	
  SECTION 11.16

  	
  Trust Obligation

  	
  62

  
	
  SECTION 11.17

  	
  No Petition

  	
  62

  
	
  SECTION 11.18

  	
  Limited Recourse

  	
  63

  
	
  SECTION 11.19

  	
  Inspection

  	
  63

  
	
  SECTION 11.20

  	
  Limitation of Liability

  	
  63

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A – Form of Transferee Certificate

  	
   

  



 


iii

















 


INDENTURE dated as of
[                ,
200  ], among HSBC AUTOMOTIVE TRUST [200  -  ], a
Delaware statutory trust (the “Issuer”), [INDENTURE TRUSTEE], a
[                ]
banking association, as indenture trustee (the “Indenture Trustee”) and
[ADMINISTRATOR], a [                      ]
banking association, as administrator (the “Administrator”).


 


In consideration of the mutual agreements contained
herein, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:


 


GRANTING CLAUSE


 


In order to secure the due and punctual payment of
the principal of and interest on the Notes when and as the same shall become
due and payable, whether as scheduled, by declaration of acceleration,
prepayment or otherwise, the Issuer, pursuant to the Series Supplement,
shall pledge the Series Trust Estate to the Indenture Trustee, all for the
benefit of the Indenture Trustee for the benefit of the Secured Parties.


 


ARTICLE I.


 


Definitions and Incorporation by Reference


 


SECTION 1.1         Definitions.
Except as otherwise specified herein, the following terms have the respective
meanings set forth below for all purposes of this Indenture.


 


“Act” has the meaning specified in Section 11.3(a).


 


“Administrator” means
[                              ],
a
[                ]
banking association, as administrator under this Indenture and the other Basic
Documents to which it is a party, or any successor administrator hereunder and
thereunder.


 


“Authorized Officer” means, with respect to the
Issuer and the Servicer, any officer or agent acting pursuant to a power of
attorney of the Owner Trustee or the Servicer, as applicable, who is authorized
to act for the Owner Trustee or the Servicer, as applicable, in matters
relating to the Issuer and who is identified on the list of Authorized Officers
delivered by each of the Owner Trustee and the Servicer to the Indenture
Trustee and the Administrator on the Closing Date (as such list may be
modified or supplemented from time to time thereafter).


 


“Book Entry Notes” means any beneficial interest in
the Notes, ownership and transfers of which shall be made through book entries
by a Clearing Agency as described in Section 2.10.


 


“Class” means all of the Notes having the same
specified payment terms and priority of payment.


 


“Class SV Preferred Stock” means the preferred
stock of the Seller.


 


1

















 


“Clearing Agency” means an organization registered
as a “clearing agency” pursuant to Section 17A of the Exchange Act.


 


“Clearing Agency Participant” means a broker,
dealer, bank, other financial institution or other Person for whom from time to
time a Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.


 


“Code” means the Internal Revenue Code of 1986, as
amended from time to time, and the Treasury Regulations promulgated thereunder.


 


“Corporate Trust Office” has the meaning assigned to
such term in the Series Supplement.


 


“Default” means any occurrence that is, or with
notice or the lapse of time or both would become, an Event of Default.


 


“Definitive Notes” has the meaning specified in Section 2.10.


 


“Event of Default” has the meaning specified in Section 5.1.


 


“Exchange Act” means the Securities Exchange Act of
1934, as amended.


 


“Executive Officer” means, with respect to any
corporation, the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, President, Executive Vice President, any Vice President, the
Secretary, the Treasurer, or any Assistant Treasurer of such corporation.


 


“Form 8-K” means a current report pursuant to Section 13
or Section 15(d) of the Exchange Act.


 


“Grant” means mortgage, pledge, bargain, sell,
warrant, alienate, remise, release, convey, assign, transfer, create, grant a
lien upon and a security interest in and right of set-off against, deposit, set
over and confirm pursuant to this Indenture. A Grant of the Series Trust
Estate or of any other agreement or instrument shall include all rights, powers
and options (but none of the obligations) of the granting party thereunder,
including the immediate and continuing right to claim for, collect, receive and
give receipt for principal and interest payments in respect of the Series Trust
Estate and all other monies payable thereunder, to give and receive notices and
other communications, to make waivers or other agreements, to exercise all
rights and options, to bring proceedings in the name of the granting party or
otherwise and generally to do and receive anything that the granting party is
or may be entitled to do or receive thereunder or with respect thereto.


 


“Holder” or “Noteholder” means the Person in whose
name a Note is registered on the Note Register.


 


“Indebtedness” means, with respect to any Person at
any time, (a) indebtedness or liability of such Person for borrowed money
whether or not evidenced by 


 


2

















 


bonds,
debentures, notes or other instruments, or for the deferred purchase price of
property or services (including trade obligations); (b) obligations of
such Person as lessee under leases which should have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases; (c) current liabilities of such Person in respect of unfunded
vested benefits under plans covered by Title IV of ERISA; (d) obligations
issued for or liabilities incurred on the account of such Person; (e) obligations
or liabilities of such Person arising under acceptance facilities; (f) obligations
of such Person under any guarantees, endorsements (other than for collection or
deposit in the ordinary course of business) and other contingent obligations to
purchase, to provide funds for payment, to supply funds to invest in any Person
or otherwise to assure a creditor against loss; (g) obligations of such
Person secured by any lien on property or assets of such Person, whether or not
the obligations have been assumed by such Person; or (h) obligations of
such Person under any interest rate or currency exchange agreement.


 


“Indenture Trustee” means, initially, [Indenture
Trustee], a
[            
banking
              ],
not in its individual capacity but as trustee under this Indenture, or any
successor trustee under this Indenture.


 


“Indenture Trustee Fee” means the fees due to the
Indenture Trustee, as may be set forth in that certain fee letter, dated
as of the date hereof between the Servicer and the Indenture Trustee.


 


“Independent” means, when used with respect to any
specified Person, that the person (a) is in fact independent of the
Issuer, any other obligor upon the Notes, the Seller and any Affiliate of any
of the foregoing persons, (b) does not have any direct financial interest
or any material indirect financial interest in the Issuer, any such other
obligor, the Seller or any Affiliate of any of the foregoing Persons and (c) is
not connected with the Issuer, any such other obligor, the Seller or any
Affiliate of any of the foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.


 


“Independent Certificate” means a certificate or
opinion to be delivered to the Indenture Trustee under the circumstances
described in, and otherwise complying with, the applicable requirements of Section 11.1,
prepared by an Independent appraiser or other expert appointed pursuant to an
Issuer Order and approved by the Indenture Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer
has read the definition of “Independent” in this Indenture and that the signer
is Independent within the meaning thereof.


 


[“Insurer” has the meaning assigned to such term in
the Series Supplement.]


 


“Issuer Order” and “Issuer Request” means a written
order or request signed in the name of the Issuer by any one of its Authorized
Officers and delivered to the Indenture Trustee and/or the Administrator, as
the case may be.


 


“Moody’s” means Moody’s Investors Service, Inc.,
or its successor.


 


3

















 


“Notes” means the Notes authenticated and delivered
under this Indenture.


 


“Note Owner” means, with respect to a Book-Entry
Note, the person who is the owner of such Book-Entry Note, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency Participant or
as an indirect participant, in each case in accordance with the rules of
such Clearing Agency).


 


“Note Paying Agent” means the Administrator or any
other Person that meets the eligibility standards for the Indenture Trustee
specified in Section 6.11 and is authorized by the Issuer to make payments
to and distributions from the Collection Account, including payment of
principal of or interest on the Notes on behalf of the Issuer.


 


“Note Register” and “Note Registrar” have the
respective meanings specified in Section 2.4.


 


“Officer’s Certificate” means a certificate signed
by any Authorized Officer of the Issuer, under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1
and TIA § 314, and delivered to the Indenture Trustee and/or the
Administrator, as the case may be. Unless otherwise specified, any
reference in this Indenture to an Officer’s Certificate shall be to an Officer’s
Certificate of any Authorized Officer of the Issuer. Each certificate with
respect to compliance with a condition or covenant provided for in this
Indenture shall include (1) a statement that the Authorized Officer
signing the certificate has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements contained in such certificate are based; (3) a
statement that in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and (4) a
statement as to whether or not, in the opinion of such person, such condition
or covenant has been complied with.


 


“Outstanding” means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture except:


 


(i)            Notes theretofore canceled by the Note
Registrar or delivered to the Note Registrar for cancellation;


 


(ii)           Notes or portions thereof the payment for
which money in the necessary amount has been theretofore deposited with the
Indenture Trustee or any Note Paying Agent in trust for the Holders of such
Notes (provided, however, that if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to the Series Supplement
or provision therefor, satisfactory to the Indenture Trustee and the
Administrator, has been made); and


 


(iii)          Notes in exchange for or in lieu of other
Notes which have been authenticated and delivered pursuant to this Indenture
unless proof satisfactory to 


 


4

















 


the Indenture Trustee and the Administrator is
presented that any such Notes are held by a bona fide purchaser;


 


provided, however,
that in determining whether the Holders of the requisite Outstanding Amount of
the Notes have given any request, demand, authorization, direction, notice,
consent or waiver hereunder or under any Basic Document, Notes owned by the
Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any of
the foregoing Persons shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Indenture Trustee and/or the Administrator
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes that a Responsible Officer of
the Indenture Trustee or the Administrator, as the case may be, either
actually knows to be so owned or has received written notice thereof shall be
so disregarded. Notes so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee or the Administrator, as the case may be, the pledgee’s
right so to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any of
the foregoing Persons.


 


“Outstanding Amount” means the aggregate principal
amount of all Notes, or Class of Notes, as applicable, Outstanding at the
date of determination.


 


“Owner Trustee” has the meaning assigned to such
term in the Trust Agreement.


 


“Predecessor Note” means, with respect to any
particular Note, every previous Note evidencing all or a portion of the same
debt as that evidenced by such particular Note; and, for the purpose of this
definition, any Note authenticated and delivered under Section 2.5 in lieu
of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Note.


 


“Proceeding” means any suit in equity, action at law
or other judicial or administrative proceeding.


 


“Record Date” means, with respect to a Distribution
Date, the close of business on the Business Day immediately preceding such
Distribution Date. However, if Definitive Notes are issued, the Record Date
shall be the last Business Day of the month preceding a Distribution Date.


 


“Registration Statement” has the meaning specified
therefor in the Securities Act.


 


“Responsible Officer” means, with respect to the
Indenture Trustee, the Administrator or the Owner Trustee, any officer within
the Corporate Trust Office of the Indenture Trustee, the Administrator or the
Owner Trustee, as the case may be, including any Vice President, Assistant
Vice President, Assistant Treasurer, Assistant Secretary, Financial Services
Officer or any other officer of the Indenture Trustee, the Administrator or the
Owner Trustee, as the case may be, customarily performing functions
similar to 


 


5

















 


those
performed by any of the above designated officers and in each case having
direct responsibility for the administration of this Indenture.


 


“Sale and Servicing Agreement” has the meaning
assigned to such term in the Series Supplement.


 


“Secured Parties” has the meaning assigned to such
term in the Series Supplement.


 


“Securities Act” means the Securities Act of 1933,
as amended.


 


“Series Supplement” means the Series Supplement,
dated as of
[                ,
200  ], among the Servicer, the Issuer, the Seller, the Indenture
Trustee, the Owner Trustee and the Administrator, as such agreement may be
amended or supplemented from time to time.


 


“Series Trust Estate” has the meaning assigned
to such term in the Series Supplement.


 


“S&P” means Standard & Poor’s Rating
Services, a division of The McGraw-Hill Companies, Inc., or its successor.


 


“State” means any one of the 50 states of the United
States of America or the District of Columbia.


 


“Tranche” means all of the Notes having the same
date of authentication.


 


“Trust Agreement” has the meaning assigned to such
term in the Series Supplement.


 


“Trust Indenture Act” or “TIA” means the Trust
Indenture Act of 1939, as amended and as in force on the date hereof, unless
otherwise specifically provided.


 


“UCC” means, unless the context otherwise requires,
the Uniform Commercial Code, as in effect in the relevant jurisdiction, as
amended from time to time.


 


“Unregistered Note” means a Note which is not being
offered for sale hereunder pursuant to a Registration Statement.


 


Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to them in the Sale and
Servicing Agreement, the Series Supplement or the Trust Agreement.


 


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


 


6

















 


“Commission” means the Securities and Exchange
Commission.


 


“indenture securities” means the Notes.


 


“indenture security holder” means a Noteholder.


 


“indenture to be qualified” means this Indenture.


 


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


 


“obligor” on the indenture securities means the
Issuer.


 


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


 


SECTION 1.3         Rules of
Construction. Unless the context otherwise requires:


 


(i)            a term has the meaning assigned to it;


 


(ii)           an accounting term not otherwise defined has
the meaning assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;


 


(iii)          “or” is not exclusive;


 


(iv)          “including” means including without
limitation; and


 


(v)           words in the singular include the plural and
words in the plural include the singular.


 


SECTION 1.4         Action
by or Consent of Noteholders and Certificateholders. Whenever any provision
of this Indenture refers to action to be taken, or consented to, by Noteholders
or Certificateholders, such provision shall be deemed to refer to the
Certificateholder or Noteholder, as the case may be, of record as of the
Record Date immediately preceding the date on which such action is to be taken,
or consent given, by Noteholders or Certificateholders. Solely for the purposes
of any action to be taken, or consented to, by Noteholders or
Certificateholders, any Note or Certificate registered in the name of Seller or
any Affiliate thereof shall be deemed not to be Outstanding (except in the event
that the Seller and/or an Affiliate thereof then owns all outstanding
Certificates and Outstanding Notes); provided, however, that,
solely for the purpose of determining whether the Indenture Trustee is entitled
to rely upon any such action or consent, only Notes or Certificates that a
Responsible Officer of the Owner Trustee or the Indenture Trustee, as the case may be,
either actually knows to be so owned or has received written notice thereof
shall be so disregarded.


 


7

















 


ARTICLE II.


 


The Notes


 


SECTION 2.1         Form;
Amount Limited; Issuable in Series.


 


(a)           The Notes shall be in substantially the form set forth in the Series Supplement,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture or the Series Supplement
and which do not affect the rights, duties or obligations of the Indenture
Trustee or the Administrator without the consent of the Indenture Trustee or
the Administrator, respectively, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may, consistently herewith, be determined by the officers executing such
Notes, as evidenced by their execution of the Notes. Any portion of the text of
any Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note.


 


The Definitive Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the officers executing
such Notes, as evidenced by their execution of such Notes.


 


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


 


(b)           The aggregate principal amount of Notes which may be authenticated
and delivered and Outstanding at any time under this Indenture is not limited; provided
that the Series Supplement may so limit the aggregate principal
amount of Notes. The Notes shall be issued in a series, and may be issued
in Classes and/or Tranches within such series (and Tranches within a
Class).


 


No Notes shall be issued under this Indenture unless
such Notes have been authorized pursuant to the Series Supplement, and all
conditions precedent to the issuance thereof, as specified in the Series Supplement,
shall have been satisfied.


 


All Notes issued under this Indenture shall be in
all respects equally and ratably entitled to the benefits hereof and secured by
the Series Trust Estate without preference, priority or distinction on
account of the actual time or times of authentication and delivery, all in
accordance with the terms and provisions hereof and the Series Supplement.


 


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


 


Notes bearing the original or facsimile signature of
individuals who were at any time Authorized Officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the 


 


8

















 


authentication
and delivery of such Notes or did not hold such offices at the issuance date of
such Notes.


 


The Notes shall be issuable in the denominations
specified in the Series Supplement.


 


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


 


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


 


If temporary Notes of any Class or Tranche are
issued, the Issuer will cause Definitive Notes of such Class or Tranche to
be prepared without unreasonable delay. After the preparation of Definitive Notes
of such Class or Tranche, the temporary Notes shall be exchangeable for
Definitive Notes of such Class or Tranche upon surrender of the temporary
Notes at the office or agency of the Issuer to be maintained as provided in Section 3.2,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Notes, the Issuer shall execute and, upon receipt of an Issuer
Order, the Administrator shall authenticate and deliver in exchange therefor a
like principal amount of Definitive Notes of such Class or Tranche of
authorized denominations. Until so exchanged, the temporary Notes of any Class or
Tranche shall in all respects be entitled to the same benefits under this
Indenture and the Series Supplement as Definitive Notes of such Class or
Tranche.


 


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


 


If a Person other than the Administrator is
appointed by the Issuer as Note Registrar, the Issuer will give the Indenture
Trustee and the Administrator prompt written notice of the appointment of such
Note Registrar and of the location, and any change in 


 


9

















 


the
location, of the Note Register. The Indenture Trustee and, if it is no longer
serving as Note Registrar hereunder, the Administrator, shall have the right to
inspect the Note Register at all reasonable times and to obtain copies thereof.
The Indenture Trustee and the Administrator shall have the right to rely upon a
certificate executed on behalf of the Note Registrar by an Authorized Officer
thereof as to the names and addresses of the Holders of the Notes and the
principal amounts and number of such Notes.


 


Upon surrender for registration or transfer of any
Note at the office or agency of the Issuer to be maintained as provided in Section 3.2,
and if the requirements of Section 8-401(1) of the UCC are met, the
Issuer shall execute and cause the Administrator to authenticate one or more
new Notes, in any authorized denominations, of the same class and a like
aggregate principal amount. A Noteholder may also obtain from the
Administrator, in the name of the designated transferee or transferees one or
more new Notes, in any authorized denominations, of the same Class and
Tranche, as applicable, and a like aggregate principal amount. Such
requirements shall not be deemed to create a duty in the Administrator, nor
shall the Administrator have any duty, to monitor the compliance by the Issuer
with Section 8-401 of the UCC.


 


At the option of the Holder, Notes of any Class or
Tranche may be exchanged for other Notes of such Class or Tranche in
any authorized denominations of the same Class (and Tranche, if
applicable) and a like aggregate principal amount, upon surrender of the Notes
to be exchanged at such office or agency. Whenever any Notes are so surrendered
for exchange, and if the requirements of Section 8-401(1) of the UCC
are met, the Issuer shall execute and upon its written request the
Administrator shall authenticate the Notes which the Noteholder making the
exchange is entitled to receive. Such requirements shall not be deemed to
create a duty in the Administrator, nor shall the Administrator have any duty,
to monitor the compliance by the Issuer with Section 8-401 of the UCC.


 


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


 


Unless specified in the Series Supplement,
every Note presented or surrendered for registration of transfer or exchange
shall, unless specified in the Series Supplement, be (i) duly
endorsed by, or be accompanied by a written instrument of transfer in the form attached
as an exhibit to the Note duly executed by the Holder thereof or such
Holder’s attorney duly authorized in writing, with such signature guaranteed by
an “eligible guarantor institution” meeting the requirements of the Note
Registrar which requirements include membership or participation in Securities
Transfer Agents Medallion Program (“Stamp”) or such other “signature guarantee
program” as may be determined by the Note Registrar in addition to, or in
substitution for, Stamp, all in accordance with the Exchange Act, and (ii) accompanied
by such other documents as the Note Registrar may require.


 


10

















 


No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Note Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes.


 


Notwithstanding, the preceding provisions of this
section, the Issuer shall not be required to make, and the Note Registrar shall
not register, transfers or exchanges of Notes selected for redemption for a
period of 15 days preceding a Distribution Date.


 


The Note Registrar shall not register the transfer
of a Definitive Note unless the transferee has executed and delivered to the
Administrator a certification, in the form of Exhibit A
hereto, to the effect that either (i) the transferee is not (A) an
employee benefit plan (within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) that is
subject to Title I of ERISA or (B) a plan (within the meaning of Section 4975(e)(1) of
the Code) that is subject to Section 4975 of the Code (each of the
foregoing, a “Plan”), and is not acting on behalf of or investing the assets of
a Plan or (ii) that the transferee’s acquisition and continued holding of
the Definitive Note will be covered by a prohibited transaction class exemption
issued by the U.S. Department of Labor. Each Note Owner that purchases a
Book-Entry Note, or to whom a Book-Entry Note is transferred, shall be deemed
to represent that either (i) it is not a Plan and is not acting on behalf
of or investing the assets of a Plan or (ii) its acquisition and continued
holding of the Book-Entry Note will be covered by a prohibited transaction class exemption
issued by the U.S. Department of Labor.


 


No Holder of an Unregistered Note shall transfer its
Note, unless (i) such transfer is made in accordance with Rule 144A
under the Securities Act or (ii) pursuant to an exemption from
registration provided by Rule 144 under the Securities Act (if available)
and the registration and qualification requirements under applicable state
securities laws.


 


Each Unregistered Note issued hereunder will contain
the following legend limiting sales to “Qualified Institutional Buyers” within
the meaning of Rule 144A under the Securities Act:


 


THIS NOTE HAS NOT BEEN AND WILL NOT
BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND HAS NOT BEEN APPROVED
OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR REGULATORY
AUTHORITY OF ANY STATE. THIS NOTE HAS BEEN OFFERED AND SOLD PRIVATELY. THE
HOLDER HEREOF ACKNOWLEDGES THAT THESE SECURITIES ARE “RESTRICTED SECURITIES” THAT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT AND AGREES FOR THE BENEFIT OF THE OBLIGORS AND ITS AFFILIATES THAT THESE
SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) TO A PERSON WHOM 


 


11

















 


THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (B) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION.


 


SECTION 2.5         Mutilated,
Destroyed, Lost or Stolen Notes. If (i) any mutilated Note is
surrendered to the Administrator or the Note Registrar, or the Administrator or
the Note Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Note, and (ii) there is delivered to each of the
Issuer, the Administrator and the Note Registrar such security or indemnity as may be
required by it to hold the Issuer, the Administrator[, the Insurer (for so long
as it is the Controlling Party)] and the Note Registrar harmless, then, in the
absence of notice to the Issuer, the Administrator or the Note Registrar that
such Note has been acquired by a bona fide purchaser, and provided that the
requirements of Section 8-405 of the UCC are met, the Issuer shall execute
and upon its written request the Administrator shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Note, a replacement Note of the same Class or Tranche (such requirement
shall not be deemed to create a duty in the Administrator to monitor the
compliance by the Issuer with Section 8-405); provided, however,
that if any such destroyed, lost or stolen Note, but not a mutilated Note,
shall have become, or within seven days shall be due and payable, or shall have
been called for redemption pursuant to the terms of the Series Supplement,
the Issuer may, instead of issuing a replacement Note, direct the
Administrator, in writing, to pay such destroyed, lost or stolen Note when so
due or payable or upon the redemption date without surrender thereof. If, after
the delivery of such replacement Note or payment of a destroyed, lost or stolen
Note pursuant to the proviso in the preceding sentence, a bona fide purchaser
of the original Note in lieu of which such replacement Note was issued presents
for payment such original Note, the Issuer, the Administrator and the Note
Registrar shall be entitled to recover such replacement Note (or such payment)
from the Person to whom it was delivered or any Person taking such replacement
Note from such Person to whom such replacement Note was delivered or any
assignee of such Person, except a bona fide purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Issuer or the Administrator in
connection therewith.


 


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


 


Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute
an original additional 


 


12

















 


contractual
obligation of the Issuer, whether or not the mutilated, destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture and the Series Supplement equally
and proportionately with any and all other Notes duly issued hereunder.


 


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


 


SECTION 2.6         Persons
Deemed Owner. Prior to due presentment for registration of transfer of any
Note, the Issuer, the Indenture Trustee, the Administrator, the Note Registrar
and any agent of any of them may treat the Person in whose name any Note
is registered (as of the Record Date) as the owner of such Note for the purpose
of receiving payments of principal of and interest, if any on such Note and for
all other purposes whatsoever, whether or not such Note be overdue, and none of
the Issuer, the Indenture Trustee, the Administrator, [the Insurer, ]the Note
Registrar or any agent of any of them shall be affected by notice to the
contrary.


 


SECTION 2.7         Payment
of Principal and Interest; Defaulted Interest.


 


(a)           The Notes shall accrue interest as provided in the form of Note
set forth in the Series Supplement and such interest shall be due and
payable on each Distribution Date as specified therein. Any installment of
interest or principal, if any, payable on any Note which is punctually or duly
provided for by the Issuer on the applicable Distribution Date shall be paid,
as provided in the Series Supplement, or if not so provided to the Person
in whose name such Note (or one or more Predecessor Notes) is registered on the
Record Date, by check mailed first-class, postage prepaid, to such Person’s
address as it appears on the Note Register on such Record Date, except that, if
the Notes are Book-Entry Notes, unless Definitive Notes have been issued
pursuant to Section 2.12, with respect to Notes registered on the Record
Date in the name of the nominee of the Clearing Agency (initially, such nominee
to be Cede & Co.), payment will be made by wire transfer in
immediately available funds to the account designated by such nominee and
except for the final installment of principal payable with respect to such Note
on a Distribution Date or on the Final Scheduled Distribution Date as set forth
in the Series Supplement which shall be payable as provided below. The
funds represented by any such checks returned undelivered shall be held in
accordance with Section 3.3.


 


(b)           The principal of each Note shall be payable in installments on each Distribution
Date as provided in the form of Note set forth in the Series Supplement.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable, if not previously paid, on the date on which an Event
of Default shall have occurred and be continuing, if the Notes are declared to
be immediately due and payable in the manner provided in the Series Supplement.
Upon written notice from the Servicer on behalf of the Issuer, the
Administrator shall notify the Person in whose name a Note is registered at the
close of business on the Record Date preceding the Distribution Date on which
the Issuer expects that the final installment of principal of and interest on 


 


13

















 


such
Note will be paid. Such notice may be mailed or transmitted by facsimile
prior to such final Distribution Date and may specify that such final
installment will be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and
surrendered for payment of such installment.


 


(c)           If the Issuer defaults in a payment of interest on the Notes, the
Issuer shall pay defaulted interest (plus interest on such defaulted interest
to the extent lawful) at the applicable Note Rate to the extent lawful. Unless
otherwise provided in the Series Supplement, the Issuer may pay such
defaulted interest to the Persons who are Noteholders on a subsequent special
record date, which date shall be at least five Business Days prior to the
payment date. The Issuer shall fix or cause to be fixed any such special record
date and payment date, and, at least 15 days before any such special record
date, the Issuer shall mail to each Noteholder, the Indenture Trustee and the
Administrator a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.


 


SECTION 2.8         Cancellation.
All Notes surrendered for payment, registration of transfer, exchange or
redemption shall, if surrendered to any Person other than the Administrator, be
delivered to the Note Registrar and shall be promptly canceled by the Note
Registrar in accordance with its customary procedures. The Issuer may at
any time deliver to the Note Registrar for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired
in any manner whatsoever, and all Notes so delivered shall be promptly canceled
by the Note Registrar in accordance with its customary procedures. No Notes
shall be authenticated in lieu of or in exchange for any Notes canceled as
provided in this Section, except as expressly permitted by this Indenture. All
canceled Notes may be held or disposed of by the Note Registrar in
accordance with its standard retention or disposal policy as in effect at the
time.


 


SECTION 2.9         Reserved.


 


SECTION 2.10       Book-Entry
Notes. The Notes, upon original issuance, may be issued in the form of
typewritten Notes representing the Book-Entry Notes, to be delivered to The
Depository Trust Company or its agent, the initial Clearing Agency, by, or on
behalf of, the Issuer. Such Notes may initially be registered on the Note
Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Note Owner will receive a Definitive Note representing
such Note Owner’s interest in such Note, except as provided in Section 2.12.
Unless and until definitive, fully registered Notes (the “Definitive Notes”)
have been issued to Note Owners pursuant to Section 2.12:


 


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


 


(ii)           the Note Registrar, the Indenture Trustee and
the Administrator shall be entitled to deal with the Clearing Agency for all
purposes of this Indenture (including the payment of principal of and interest
on the Notes and the giving of instructions or directions hereunder) as the
sole Holder of the Notes, and shall have no obligation to the Note Owners;


 


14

















 


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


 


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


 


(v)           whenever this Indenture requires or permits
actions to be taken based upon instructions or directions of Holders of Notes
evidencing a specified percentage of the Outstanding Amount of the Notes, the
Clearing Agency shall be deemed to represent such percentage only to the extent
that it has received instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes or in the Notes of
a Class, as the case maybe, and has delivered such instructions to the
Indenture Trustee and/or the Administrator, as the case may be; and


 


(vi)          Note Owners may receive copies of any
reports sent to Noteholders pursuant to this Indenture, upon written request,
together with a certification that they are Note Owners and payment of
reproduction and postage expenses associated with the distribution of such
reports, from the Administrator at the Corporate Trust Office or, if
applicable, on the Administrator’s web-site specified in the Series Supplement.


 


SECTION 2.11       Notices
to Clearing Agency. With respect to any Notes which are Book Entry Notes, whenever
a notice or other communication to the Noteholders is required under this
Indenture, unless and until Definitive Notes shall have been issued to Note
Owners pursuant to Section 2.12, the Indenture Trustee or the
Administrator, as the case may be, shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency, and shall have no obligation to the Note Owners.


 


SECTION 2.12       Definitive
Notes. If any Notes are Book-Entry Notes and if (i) the Servicer
advises the Indenture Trustee and the Administrator in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to such Notes, and the Servicer is unable to
locate a qualified successor, (ii) the Servicer at its option advises the
Indenture Trustee and the Administrator in writing that it elects to terminate
the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Note Owners representing beneficial
interests aggregating at least a majority of the Outstanding Amount of the
Notes advise the Indenture Trustee through the Clearing Agency in writing that
the continuation of a book entry system through the Clearing Agency is no
longer in the best interests of the Note Owners, then the Administrator, in the
case of (i) and (ii), and the Indenture Trustee, in 


 


15

















 


the case of (iii), shall notify all Note Owners, the Servicer, the
Indenture Trustee and the Administrator of the occurrence of any such event and
of the availability of Definitive Notes to Note Owners requesting the same.
Upon surrender to the Administrator of the typewritten Note or Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute, and upon the written
direction of the Issuer the Administrator shall authenticate, the Definitive
Notes in accordance with the instructions of the Clearing Agency. None of the
Issuer, the Note Registrar, the Indenture Trustee or the Administrator shall be
liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Notes, the Indenture Trustee, the Administrator and the
Note Registrar shall recognize the Holders of the Definitive Notes as
Noteholders.


 


SECTION 2.13       Final
Distribution.


 


(a)           Upon receiving notice from the Servicer of the Distribution Date (or
other date) on which the Noteholders of any Class may surrender their
Notes for payment of the final distribution on and cancellation of such Notes,
the Administrator shall provide notice to the Noteholders of such Class specifying
(i) the date upon which final payment of such Class will be made upon
presentation and surrender of Notes (if required) of such Class at the
office or offices therein designated, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such
payment date is not applicable, payments being made only upon presentation and
surrender of such Notes at the office or offices therein specified. The
Administrator will notify the Noteholders of the date for payment of the final
distribution on and cancellation of such Notes not later than five days before
such date. Unless it is serving in the related functions, the Administrator
shall give a copy of such notice to the Indenture Trustee, the Note Registrar
and the Note Paying Agent at the time such notice is given to Noteholders.


 


(b)           Notwithstanding a final distribution to the Noteholders of any Class,
except as otherwise provided in this paragraph, all funds then on deposit in
the Collection Account and the Trust Accounts shall continue to be held in
trust for the benefit of such Noteholders, and the Note Paying Agent or the
Administrator shall pay such funds to such Noteholders upon surrender of their
Notes. In the event that all such Noteholders shall not surrender their Notes
for cancellation within six months after the date specified in the notice from
the Administrator described in paragraph (a), the Administrator shall give a
second notice to the remaining such Noteholders to surrender their Notes for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all such Notes shall not have been surrendered
for cancellation, the Administrator may take appropriate steps, or may appoint
an agent to take appropriate steps, to contact the remaining such Noteholders concerning
surrender of their Notes, and the cost thereof shall be paid out of the funds
in the account held for the benefit of such Noteholders. The Administrator and
the Note Paying Agent shall upon written request pay to the Issuer any moneys
held by them for the payment of principal or interest that remains unclaimed
for two years. After payment to the Issuer, Noteholders entitled to such monies
must look to the Issuer for payment as general unsecured creditors, unless an
applicable abandoned property law designates another Person, and all 


 


16

















 


liability
of [the Insurer (under the Note Policy), ]the Indenture Trustee, the
Administrator or such Note Paying Agent with respect to such trust monies.


 


(c)           Any notice required or permitted to be given to a Holder of Registered
Notes shall be given by first-class mail, postage prepaid, at the address
of such Holder as shown in the Note Register.


 


ARTICLE III.


 


Covenants


 


SECTION 3.1         Payment
of Principal and Interest. The Issuer will duly and punctually pay or cause
to be paid the principal of and interest on the Notes in accordance with the
terms of the Notes, this Indenture and the Series Supplement. Amounts
properly withheld under the Code by any Person from a payment to any Noteholder
of interest and/or principal shall be considered as having been paid by the
Issuer to such Noteholder for all purposes of this Indenture.


 


SECTION 3.2         Maintenance
of Office or Agency. The Issuer will maintain an office or agency where
Notes may be surrendered for registration, transfer or exchange of the
Notes, and where notices and demands to or upon the Issuer in respect of the
Notes and this Indenture may be served. The Issuer hereby initially
appoints the Administrator to serve as its agent for the foregoing purposes.
The Issuer will give prompt written notice to the Indenture Trustee and the
Administrator of the location, and of any change in the location, of any such
office or agency. If at any time the Issuer shall fail to maintain any such
office or agency or shall fail to furnish the Indenture Trustee or the
Administrator with the address thereof, such surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Administrator, and the
Issuer hereby appoints the Administrator as its agent to receive all such
surrenders, notices and demands.


 


SECTION 3.3         Money
for Payments to be Held in Trust. One Business Day prior to each
Distribution Date, the Issuer shall deposit or cause to be deposited to the
Collection Account Available Funds (which shall be immediately available) with
respect to the related Collection Period. Such sum shall be held in trust for
the benefit of the Persons entitled thereto and (unless the Note Paying Agent
is the Administrator), the Issuer shall promptly notify the Administrator of
its action or failure so to act.


 


The Issuer hereby appoints the Person serving as
Administrator as Note Paying Agent to make payments to Noteholders on behalf of
the Issuer in accordance with the provisions of the Notes, this Indenture and
the Series Supplement, and such Person hereby accepts such appointment
(subject to removal in the event it no longer serves as Administrator pursuant
to Section 6.18).


 


The Issuer will cause each Note Paying Agent other
than the Indenture Trustee or the Administrator to execute and deliver to the
Indenture Trustee an instrument in which such Note Paying Agent shall agree
with the Indenture Trustee (and 


 


17

















 


if
the Indenture Trustee or the Administrator acts as Note Paying Agent with
respect to clauses (i) and (v), it hereby so agrees), subject to the
provisions of this Section, that such Note Paying Agent will:


 


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


 


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


 


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


 


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


 


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


 


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


 


The Issuer hereby appoints the Person serving as
Administrator, as Certificate Paying Agent to make payments to
Certificateholders on behalf of the Issuer in accordance with the provisions of
the Certificates, this Indenture and the Trust Agreement, and such Person
hereby accepts such appointment (subject to removal in the event it no longer
serves as Administrator pursuant to Section 6.18) and further agrees that
it will be bound by the provisions of the Trust Agreement relating to the
Certificate Paying Agent and will:


 


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


 


18

















 


provided and as provided in the Trust
Agreement and pay such sums to such Persons as herein and therein provided;


 


(ii)           give the Owner Trustee notice of any default by
the Issuer of which a Responsible Officer of the Certificate Paying Agent has
actual knowledge in the making of any payment required to be made with respect
to the Certificates;


 


(iii)          at any time during the continuance of any
such default, upon the written request of the Owner Trustee forthwith pay to
the Owner Trustee on behalf of the Issuer all sums so held in Trust by such
Certificate Paying Agent;


 


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


 


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


 


SECTION 3.4         Existence.
Except as otherwise permitted by the provisions of Section 3.10, the
Issuer will keep in full effect its existence, rights and franchises as a
statutory trust under the laws of the State of Delaware (unless it becomes, or
any successor Issuer hereunder is or becomes, organized under the laws of any
other state or of the United States of America, in which case the Issuer will
keep in full effect its existence, rights and franchises under the laws of such
other jurisdiction) and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Indenture, the Series Supplement,
the Notes and each other instrument or agreement included in the Series Trust
Estate.


 


SECTION 3.5         Protection
of Series Trust Estate. The Issuer intends the security interest
Granted pursuant to this Indenture and the Series Supplement in favor of
the Secured Parties to be prior to all other liens in respect of the Series Trust
Estate, and the Issuer shall take all actions necessary to obtain and maintain,
in favor of the Indenture Trustee for the benefit of the Secured Parties a
first lien on and a first priority, perfected security interest in the Series Trust
Estate. The Issuer will: (a) from time to time prepare (or shall cause to
be prepared), execute and deliver all such supplements and amendments hereto
and all such financing statements, continuation statements, instruments of
further assurance and other instruments, (b) authenticate such records,
and (c) take such other action necessary or advisable to:


 


(i)            Grant more effectively all or any portion of
the Series Trust Estate;


 


19

















 


(ii)           maintain or preserve the lien and security
interest (and the priority thereof) in favor of the Indenture Trustee for the
benefit of the Secured Parties created by this Indenture and the Series Supplement
or carry out more effectively the purposes hereof;


 


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


 


(iv)          enforce any of the Series Trust Estate;


 


(v)           preserve and defend title to the Series Trust
Estate and the rights of the Indenture Trustee in such Series Trust Estate
against the claims of all persons and parties; and


 


(vi)          pay all taxes or assessments levied or
assessed upon the Series Trust Estate when due.


 


SECTION 3.6         Opinions
as to Series Trust Estate.


 


(a)           On the Closing Date, the Issuer shall furnish to the Indenture Trustee
an Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording and filing of this
Indenture, the Series Supplement, and any other requisite documents, and
with respect to the execution and filing of any financing statements and
continuation statements, as are necessary to perfect and make effective the
first priority lien and security interest in favor of the Indenture Trustee for
the benefit of the Secured Parties, created by this Indenture and the Series Supplement
and reciting the details of such action, or stating that, in the opinion of
such counsel, no such action is necessary to make such perfected lien and
security interest effective.


 


(b)           On or before March 31 of each year, beginning with March 31,
[200  ], the Servicer on behalf of the Issuer shall furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in the opinion of
such counsel, such action has been taken with respect to the recording, filing,
re-recording and refiling of this Indenture, the Series Supplement and any
other requisite documents, with respect to the execution and filing of any
financing statements and continuation statements, and with respect to the
authentication of such records as are necessary to maintain the lien and
security interest created by this Indenture and the Series Supplement and
reciting the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain such lien and security
interest. Such Opinion of Counsel shall also describe the recording, filing,
re-recording and refiling of this Indenture, any indentures supplemental hereto
and any other requisite documents, the execution and filing of any financing
statements and continuation statements and the authentication of such records
that will, in the opinion of such counsel, be required to maintain the lien and
security interest of this Indenture and the Series Supplement until March 31
of the following year.


 


20

















 


SECTION 3.7         Performance
of Obligations; Servicing of Receivables.


 


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


 


(b)           The Issuer has contracted with the Servicer to assist the Issuer in
performing its duties under this Indenture and the Series Supplement. The
Issuer may contract with Persons other than the Servicer to assist it in
performing its duties under this Indenture and the Series Supplement, and
any performance of such duties by a Person identified to the Indenture Trustee
[and the Insurer (for so long as it is the Controlling Party) ]in an Officer’s
Certificate of the Issuer shall be deemed to be action taken by the Issuer.


 


(c)           The Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture and the Basic Documents and in the
instruments and agreements included in the Series Trust Estate, including,
but not limited, to preparing (or causing to be prepared) and filing (or
causing to be filed) all UCC financing statements and continuation statements
required to be filed by the terms of this Indenture, the Series Supplement
and the Sale and Servicing Agreement in accordance with and within the time
periods provided for herein and therein. Except as otherwise expressly provided
therein, the Issuer shall not waive, amend, modify, supplement or terminate any
Basic Document or any provision thereof without the consent of the Indenture
Trustee[ and the Insurer (for so long as it is the Controlling Party)].


 


(d)           If a Responsible Officer of the Owner Trustee shall have actual
knowledge of the occurrence of a Servicer Termination Event under the Sale and
Servicing Agreement, the Issuer shall promptly notify the Indenture Trustee,
the Administrator and the Rating Agencies thereof in accordance with Section 11.4,
and shall specify in such notice the action, if any, the Issuer is taking in
respect of such default. If a Servicer Termination Event shall arise from the
failure of the Servicer to perform any of its duties or obligations under
the Sale and Servicing Agreement with respect to the Receivables, the Issuer
shall take all reasonable steps available to it to remedy such failure.


 


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


 


(i)            except as expressly permitted by this
Indenture or the Basic Documents, sell, transfer, exchange or otherwise dispose
of any of the properties or assets of the Issuer, including those included in
the Series Trust Estate;


 


21

















 


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


 


(iii)          (A) permit the validity or effectiveness
of this Indenture or the Series Supplement to be impaired, or permit the
lien in favor of the Indenture Trustee created by this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to
be released from any covenants or obligations with respect to the Notes under
this Indenture or the Series Supplement except as may be expressly
permitted hereby, (B) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien of this Indenture
and the Series Supplement) to be created on or extend to or otherwise
arise upon or burden the Series Trust Estate or any part thereof or
any interest therein or the proceeds thereof (other than tax liens, mechanics’
liens and other liens that arise by operation of law, in each case on a Financed
Vehicle and arising solely as a result of an action or omission of the related
Obligor), (C) permit the lien of this Indenture and the Series Supplement
not to constitute a valid first priority (other than with respect to any such
tax, mechanics’ or other lien) security interest in the Series Trust
Estate, (D) except as expressly permitted therein, amend, modify or fail
to comply with the provisions of the Basic Documents or (E) except as
expressly permitted therein, amend, modify or fail to comply with the
provisions of the Related Documents.


 


SECTION 3.9         Annual
Statement as to Compliance. The Servicer on behalf of the Issuer will
deliver to the Indenture Trustee[ and the Insurer], an Officer’s Certificate
stating, as to the Authorized Officer signing such Officer’s Certificate, that


 


(i)            a review of the activities of the Issuer
during the preceding calendar year (or such shorter or longer, as applicable,
period since the Closing Date) and of performance under this Indenture has been
made under such Authorized Officer’s supervision; and


 


(ii)           to the best of such Authorized Officer’s
knowledge, based on such review, the Issuer has complied with all conditions
and covenants under this Indenture and the Series Supplement throughout
such period, or, if there has been a default in the compliance of any such
condition or covenant, specifying each such default known to such Authorized
Officer and the nature and status thereof.


 


The Officer’s Certificate referred to in this Section 3.9
will be delivered on or before March 1 of each calendar year, beginning March 1,
200[  ] and otherwise in compliance with the requirements of TIA Section 314(a)(4),
unless the Issuer is not required to file periodic reports under the Exchange
Act, in which case the reports may be delivered within 90 days after the
end of each calendar year and otherwise in compliance with the requirements of
TIA Section 314(a)(4).


 


22

















 


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


 


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


 


(i)            the Person (if other than the Issuer) formed
by or surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any State and shall
expressly assume, by an indenture supplemental hereto, executed and delivered
to the Indenture Trustee[, the Insurer (for so long as it is the Controlling
Party)] and the Administrator, in form satisfactory to the Indenture
Trustee[, the Insurer (for so long as it is the Controlling Party)] and the
Administrator, the due and punctual payment of the principal of and interest on
all Notes and the performance or observance of every agreement and covenant of
this Indenture and the Series Supplement on the part of the Issuer to
be performed or observed, all as provided herein;


 


(ii)           immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing under the Series Supplement;


 


(iii)          the Rating Agency Condition shall have been
satisfied with respect to such transaction;


 


(iv)          the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the Indenture Trustee[, the
Insurer (for so long as it is the Controlling Party)] and the Owner Trustee) to
the effect that such transaction will not cause the Trust to be treated as an
association or publicly traded partnership taxable as a corporation for federal
income tax purposes, or cause the Notes to fail to qualify as debt for federal
income tax purposes;


 


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


 


(vi)          the Issuer shall have delivered to the
Indenture Trustee[ and the Insurer (for so long as it is the Controlling
Party)] an Officer’s Certificate and an Opinion of Counsel each stating that
such consolidation or merger comply with this Article III and that all
conditions precedent herein provided for relating to such transaction have been
complied with (including any filing required by the Exchange Act)[; and


 


(vii)         [such consolidation or merger is approved in
writing by the Insurer (for so long as it is the Controlling Party)].


 


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


 


23

















 


(i)            the Person that acquires by conveyance or
transfer the properties and assets of the Issuer the conveyance or transfer of
which is hereby restricted shall (A) be a United States citizen or a
Person organized and existing under the laws of the United States of America or
any state, (B) expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee[ and the Insurer], in form satisfactory
to the Indenture Trustee[ and the Insurer], the due and punctual payment of the
principal of and interest on all Notes and the performance or observance of
every agreement and covenant of this Indenture, the Series Supplement,
each of the Basic Documents and each of the Related Documents on the part of
the Issuer to be performed or observed, all as provided herein, (C) expressly
agree by means of such Indenture Supplement that all right, title and interest
so conveyed or transferred shall be subject and subordinate to the rights of
Holders of the Notes, (D) unless otherwise provided in such Series Supplement,
expressly agree to indemnify, defend and hold harmless the Issuer against and
from any loss, liability or expense arising under or related to this Indenture,
the Series Supplement and the Notes and (E) expressly agree by means
of such Series Supplement that such Person (or if a group of persons, then
one specified Person) shall prepare (or cause to be prepared) and make all
filings with the Commission (and any other appropriate Person) required by the
Exchange Act in connection with the Notes;


 


(ii)           immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing under the Series Supplement;


 


(iii)          the Rating Agency Condition shall have been
satisfied with respect to such transaction;


 


(iv)          the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the Indenture Trustee[ and
the Insurer]) to the effect that such transaction will not cause the Trust to
be treated as an association or publicly traded partnership taxable as a
corporation for federal income tax purposes, or cause the Notes to fail to
qualify as debt for federal income tax purposes;


 


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


 


(vi)          the Issuer shall have delivered to the
Indenture Trustee[ and the Insurer] an Officers’ Certificate and an Opinion of
Counsel each stating that such conveyance or transfer and such Indenture
Supplement complies with this Article III and that all conditions
precedent herein provided for relating to such transaction have been complied
with (including any filing required by the Exchange Act)[;


 


24

















 


(vii)         such conveyance or transfer is approved in
writing by the Insurer (for so long as it is the Controlling Party)].


 


SECTION 3.11       Successor
or Transferee.


 


(a)           Upon any consolidation or merger of the Issuer in accordance with Section 3.10(a),
the Person formed by or surviving such consolidation or merger (if other than
the Issuer) shall succeed to, and be substituted for, and may exercise
every right and power of, the Issuer under this Indenture and the Series Supplement
with the same effect as if such Person had been named as Issuer herein.


 


(b)           Upon a conveyance or transfer of all the assets and properties of the
Issuer pursuant to Section 3.10(b), HSBC Automotive Trust
[200  -  ] will be released from every covenant and
agreement of this Indenture and the Series Supplement to be observed or
performed on the part of the Issuer with respect to the Notes immediately
upon the delivery of written notice to the Indenture Trustee stating that HSBC
Automotive Trust [200  -  ] is to be so released.


 


SECTION 3.12       No
Other Business. The Issuer shall not engage in any business other than
financing, purchasing, owning, selling and managing the Receivables, entering
and maintaining any ancillary agreement related to issuance of the Notes and
owning the Class SV Preferred Stock of the Seller in the manner
contemplated by this Indenture, the Basic Documents and the Series Supplement
and all Related Documents and activities incidental thereto.


 


SECTION 3.13       No
Borrowing. The Issuer shall not issue, incur, assume, guarantee or otherwise
become liable, directly or indirectly, for any Indebtedness except for (i) the
Notes, (ii) obligations owing from time to time to a Series Support
Provider under the related agreement regarding Series Support, if any and (iii) any
other Indebtedness permitted by or arising under the Basic Documents and the Series Supplement.
The proceeds of the Notes and the Certificates of a Series shall be used
exclusively to fund the Issuer’s purchase of the Receivables of such Series, or
to obtain release of the lien relating to the pledge of the Receivables for a
prior series of notes issued by the Issuer, the purchase of related
property of the Series Trust Estate, to fund any trust account and to pay
the Issuer’s organizational, transactional and start-up expenses.


 


SECTION 3.14       Servicer’s
Obligations. The Issuer shall enforce the provisions of Sections 4.9, 4.10,
4.11 and Article XIV of the Sale and Servicing Agreement with respect to
the duties of Servicer thereunder.


 


SECTION 3.15       Guarantees,
Loans, Advances and Other Liabilities. Except as contemplated by the Sale
and Servicing Agreement or this Indenture or the Series Supplement, the
Issuer shall not make any loan or advance or credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuring another’s
payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in 


 


25

















 


connection
with the obligations, stocks or dividends of, or own, purchase, repurchase or
acquire (or agree continently to do so) any stock, obligations, assets or
securities of, or any other interest in, or make any capital contribution to,
any other Person.


 


SECTION 3.16       Capital
Expenditures. The Issuer shall not make any expenditure (by long-term or
operating lease or otherwise) for capital assets (either realty or personalty).


 


SECTION 3.17       Compliance
with Laws. The Issuer shall comply with the requirements of all applicable
laws, the non-compliance with which would, individually or in the aggregate,
materially and adversely affect the ability of the Issuer to perform its
obligations under the Notes, this Indenture, or any Basic Document, the Series Supplement
or any Related Document.


 


SECTION 3.18       Restricted
Payments. The Issuer shall not, directly or indirectly, (i) pay any
dividend or make any distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, to the Owner
Trustee or any owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of the Issuer or
to the Seller, (ii) redeem, purchase, retire or otherwise acquire for
value any such ownership or equity interest or security or (iii) set aside
or otherwise segregate any amounts for any such purpose; provided, however,
that the Issuer may make, or cause to be made, distributions to the
Seller, the Servicer, the Owner Trustee, the Indenture Trustee, the
Administrator and the Certificateholders as permitted by, and to the extent
funds are available for such purpose under, the Sale and Servicing Agreement or
Trust Agreement. The Issuer will not, directly or indirectly, make payments to
or distributions from the Collection Account except in accordance with this
Indenture, the Basic Documents, the Series Supplement or any Related
Document.


 


SECTION 3.19       Notice
of Events of Default. Upon a Responsible Officer of the Owner Trustee
having actual knowledge thereof, the Issuer agrees to give the Indenture
Trustee, the Administrator and the Rating Agencies prompt written notice of
each Event of Default under the Series Supplement and each default on the part of
the Servicer or the Seller of its obligations under the Sale and Servicing
Agreement.


 


SECTION 3.20       Further
Instruments and Acts. Upon request of the Indenture Trustee[, the Insurer
(for so long as it is the Controlling Party)] or the Administrator, as the case
may be, the Issuer will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.


 


SECTION 3.21       Amendments
of Sale and Servicing Agreement and Trust Agreement. The Issuer shall not
agree to any amendment to Section 13.1 of the Sale and Servicing Agreement
or Section 11.1 of the Trust Agreement to eliminate the requirements
thereunder that the Indenture Trustee[, the Insurer], the Administrator or the
Holders of the Notes consent to amendments thereto as provided therein.


 


26

















 


SECTION 3.22       Income
Tax Characterization. For purposes of federal income, state and local
income and franchise and any other income taxes, the Issuer, the Noteholders
and the Certificateholders will treat the Notes as indebtedness and hereby
instruct the Indenture Trustee to treat the Notes as indebtedness for federal
and state tax reporting purposes.


 


ARTICLE IV.


 


Satisfaction and Discharge


 


SECTION 4.1         Satisfaction
and Discharge of Indenture. This Indenture shall cease to be of further
effect with respect to the Notes except as to (i) rights of registration
of transfer and exchange, (ii) substitution of mutilated, destroyed, lost
or stolen Notes, (iii) rights of Noteholders to receive payments of
principal thereof and interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8,
3.10, 3.12, 3.13, 3.20, 3.21 and 3.22, (v) the rights and immunities of
the Indenture Trustee and the Administrator hereunder (including the rights of
the Indenture Trustee and the Administrator under Section 6.7 and Section 6.17
and the obligations of the Indenture Trustee and the Administrator under Section 4.2)
and (vi) the rights of the Secured Parties as beneficiaries hereof with
respect to the Series Trust Estate so deposited with the Indenture Trustee
or the Administrator payable to all or any of them, and the Indenture Trustee,
on written demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to the Notes, when either


 


(1)           all Notes theretofore authenticated and
delivered (other than (i) Notes that have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section 2.5 and (ii) Notes
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 3.3) have been
delivered to the Note Registrar for cancellation and the Series Support,
if any, has been returned to the Series Support Provider; or


 


(2)           all Notes not theretofore delivered to the
Note Registrar for cancellation


 


(i)            have become due and payable,


 


(ii)           will become due and payable at their
respective Final Scheduled Distribution Dates within one year, or


 


(iii)          are to be called for redemption within one
year under arrangements satisfactory to the Indenture Trustee and the
Administrator for the giving of notice of redemption by the Administrator, upon
the instructions of the Servicer or the Indenture Trustee, as the case may be,
in the name, and at the expense, of the Issuer,


 


27

















 


and the Issuer, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be irrevocably deposited with the
Administrator cash or direct obligations of or obligations guaranteed by the
United States of America (which will mature prior to the date such amounts are
payable), in trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore delivered to
the Administrator for cancellation when due on the Final Scheduled Distribution
Date or tender date (if Notes shall have been called for redemption or tender
pursuant to the Series Supplement), as the case may be.


 


SECTION 4.2         Application
of Trust Money. All monies deposited with the Indenture Trustee and/or the
Administrator pursuant to Section 4.1 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes, this Indenture
and the Series Supplement, to the payment, either directly or through any
Note Paying Agent, as the Indenture Trustee and/or the Administrator, as the
case may be, may determine, to the Secured Parties for the payment or
redemption of which such monies have been deposited with the Indenture Trustee
and/or the Administrator, as the case may be, of all sums due and to
become due thereon for principal and interest; but such monies need not be
segregated from other funds except to the extent required herein or in the Sale
and Servicing Agreement or required by law.


 


SECTION 4.3         Repayment
of Monies Held by Note Paying Agent. In connection with the satisfaction
and discharge of this Indenture with respect to the Notes, all monies then held
by any Note Paying Agent under the provisions of this Indenture with respect to
such Notes shall, upon demand of the Issuer, be paid to the Administrator on
behalf of the Indenture Trustee to be held and applied according to Section 3.3
and thereupon such Note Paying Agent shall be released from all further
liability with respect to such monies.


 


ARTICLE V.


 


Remedies


 


SECTION 5.1         Events
of Default. The definition of “Event of Default” with respect to a Series,
together with certain rights and remedies consequent thereto, shall be set
forth in the Series Supplement.


 


SECTION 5.2         Collection
of Indebtedness and Suits for Enforcement by Indenture Trustee.


 


(a)           Subject to the terms of the Series Supplement, the Issuer
covenants that if (i) default is made in the payment of any interest on
any Note when the same becomes due and payable, and such default continues for
a period of five days, or (ii) default is made in the payment of the
principal of or any installment of the principal of any Note when the same
becomes due and payable, and such default continues for a period of five days,
the Issuer will, upon demand of the Indenture Trustee, pay to it or the 


 


28

















 


Administrator,
for the benefit of the Secured Parties, the whole amount then due and payable
on such Notes for principal and interest, with interest upon the overdue
principal, and, to the extent payment at such rate of interest shall be legally
enforceable, upon overdue installments of interest, at the applicable Note Rate
and in addition thereto such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee and its agents
and outside counsel.


 


(b)           If an Event of Default occurs and is continuing with respect to a
Series, the Indenture Trustee may in its discretion proceed to protect and
enforce the rights of the Secured Parties by such appropriate Proceedings as
the Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or the Series Supplement or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy or legal or
equitable right vested in the Indenture Trustee by this Indenture, the Series Supplement
or by law.


 


(c)           In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest
in the Series Trust Estate, proceedings under Title 11 of the United
States Code or any other applicable federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Notes of such Series, or to
the creditors or property of the Issuer or such other obligor, the Indenture
Trustee, irrespective of whether the principal of any Notes of such Series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:


 


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


 


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


 


29

















 


(iii)          to collect and receive any monies or other
property payable or deliverable on any such claims and received with respect to
the Series Trust Estate and to distribute all amounts received with
respect to the claims of the Secured Parties and of the Indenture Trustee on
their behalf; and


 


(iv)          to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Secured Parties, in each case against the Series Trust
Estate allowed in any judicial proceedings relative to the Issuer, its
creditors and its property;


 


and
any trustee, receiver, liquidator, custodian or other similar official in any
such proceeding is hereby authorized by the Secured Parties to make payments to
the Indenture Trustee, and, in the event that the Indenture Trustee shall
consent to the making of payments directly to the Secured Parties, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.


 


(d)           Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Secured Party any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any Secured
Party in any such proceeding except, as aforesaid, to vote for the election of
a trustee in bankruptcy or similar person.


 


(e)           All rights of action and of asserting claims under this Indenture, the Series Supplement
or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other proceedings relative thereto, and any such action or proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, subject to the payment of
the expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall
be for the ratable benefit of the Secured Parties.


 


(f)            In any proceedings brought by the Indenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture or
the Series Supplement), the Indenture Trustee shall be held to represent
all the Secured Parties, and it shall not be necessary to make any Secured
Party a party to any such proceedings.


 


SECTION 5.3         Limitation
of Suits. No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the Series Supplement,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:


 


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


 


30

















 


(ii)           the Holders of not less than 25% of the
Outstanding Amount of the Notes have made written request to the Indenture
Trustee to institute such proceeding in respect of such Event of Default in its
own name as Indenture Trustee hereunder;


 


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


 


(iv)          the Indenture Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has failed to institute
such Proceedings; and


 


(v)           no direction inconsistent with such written
request has been given to the Indenture Trustee during such 60-day period by
the Holders of a majority of the Outstanding Amount of the Notes of such
Series;


 


it
being understood and intended that no Holders of Notes shall have any right in
any manner whatsoever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holders of
Notes or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided. [Nothing herein shall be construed as giving Noteholders any
right to make a claim directly under the Note Policy.]


 


SECTION 5.4         Unconditional
Rights of Noteholders To Receive Principal and Interest. Notwithstanding
any other provisions in this Indenture, the Holder of any Note shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and interest, if any, on such Note on or after the respective due dates
thereof expressed in such Note or in this Indenture or the Series Supplement
(or, in the case of redemption or tender pursuant to the Series Supplement,
on or after the related redemption or tender date) and to institute a suit for
the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.


 


SECTION 5.5         Restoration
of Rights and Remedies. If the Indenture Trustee[, the Insurer] or any
Noteholder has instituted any Proceeding to enforce any right or remedy under
this Indenture or the Series Supplement and such Proceeding has been
discontinued or abandoned for any reason, then and in every such case the
Issuer, the Indenture Trustee[, the Insurer] and the related Noteholders shall,
subject to any determination in such Proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Indenture Trustee[, the Insurer] and the related Noteholders
shall continue as though no such proceeding had been instituted.


 


SECTION 5.6         Rights
and Remedies Cumulative. No right or remedy herein conferred upon or
reserved to [the Insurer or ]any Noteholders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or 


 


31

















 


employment
of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.


 


SECTION 5.7         Delay
or Omission Not a Waiver. No delay or omission of the Indenture Trustee,
any Controlling Party or any Holder of any related Note to exercise any right
or remedy accruing upon any Default or Event of Default shall impair any such
right or remedy or constitute a waiver of any such Default or Event of Default
or an acquiescence therein. Every right and remedy given by this Article V
or by law to the Indenture Trustee[, the Insurer] or to any Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by
the Indenture Trustee or by the related Noteholders, as the case may be.


 


SECTION 5.8         Limitation
on Voting of Preferred Stock; Control by Noteholders.


 


(a)           Notwithstanding any provision of any Related Document to the contrary,
the Indenture Trustee shall hold the Class SV Preferred Stock in trust for
the benefit of the Secured Parties and shall vote such stock only pursuant to
the written instructions of [the Insurer (for so long as it is the Controlling
Party) and, if the Insurer is no longer the Controlling Party, ]the Holders of
a majority of the Outstanding Amount of the Notes.


 


(b)           The Controlling Party shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Indenture Trustee with respect to the Notes of such Series or exercising
any trust or power conferred on the Indenture Trustee; provided that


 


(i)            such direction shall not be in conflict with
any rule of law or with this Indenture or with the Series Supplement;
and


 


(ii)           the Indenture Trustee may take any other
action deemed proper by the Indenture Trustee that is not inconsistent with
such direction;


 


provided, however,
that, subject to Section 6.1, the Indenture Trustee need not take any
action that it determines might involve it in liability or might materially
adversely affect the rights of any Noteholders not consenting to such action.


 


SECTION 5.9         Waiver
of Past Defaults. The Controlling Party may waive any Default or Event
of Default relating to the Notes and its consequences except a Default (a) in
payment of principal of or interest on any of the Notes or (b) in respect
of a covenant or provision hereof which cannot be modified or amended without
the consent of the Holder of each Note. In the case of any such waiver, the
Issuer, the Indenture Trustee[, the Insurer] and the Holders of the Notes shall
be restored to their former positions and rights hereunder, respectively; but
no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereto.


 


Upon any such waiver, such Default shall cease to
exist and be deemed to have been cured and not to have occurred, and any Event
of Default arising therefrom 


 


32

















 


shall
be deemed to have been cured and not to have occurred, for every purpose of
this Indenture and the Series Supplement; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.


 


SECTION 5.10       Undertaking
for Costs. All parties to this Indenture and the Series Supplement
agree, and each Holder of any Note by such Holder’s acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture and
the Series Supplement, or in any suit against the Indenture Trustee for
any action taken, suffered or omitted by it as Indenture Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply
to (a) any suit instituted by the Indenture Trustee, (b) [any suit
instituted by the Insurer, (c) ]any suit instituted by any Noteholder, or
group of Noteholders, in each case holding in the aggregate more than 10% of
the Outstanding Amount of the Notes or ([d]) any suit instituted by any
Noteholder for the enforcement of the payment of principal of or interest on
any Note on or after the respective due dates expressed in such Note and in
this Indenture and the Series Supplement.


 


SECTION 5.11       Waiver
of Stay or Extension Laws. The Issuer covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead or in any manner
whatsoever, claim or take the benefit of, any stay or extension law wherever
enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture and the Series Supplement;
and the Issuer (to the extent that it may lawfully do so) hereby expressly
waives all benefit of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee[ or the Insurer], but will suffer and permit the execution of every
such power as though no such law had been enacted.


 


SECTION 5.12       Action
on Notes. The Indenture Trustee’s right to seek and recover judgment on the
Notes or under this Indenture or the Series Supplement shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture or the Series Supplement. Neither the lien
of this Indenture or the Series Supplement nor any rights or remedies of
the Indenture Trustee[, the Insurer ] or the Noteholders shall be impaired by
the recovery of any judgment by the Indenture Trustee[ or the Insurer] against
the Issuer or by the levy of any execution under such judgment upon any portion
of the Series Trust Estate or upon any of the assets of the Issuer.


 


SECTION 5.13       Performance
and Enforcement of Certain Obligations.


 


(a)           Promptly following a request from the Indenture Trustee[ or the Insurer
(for so long as it is the Controlling Party)] to do so and at the Servicer’s
expense, the Issuer agrees to take all such lawful action as the Indenture
Trustee[ or the Insurer (for so long as it is the Controlling Party)] may request
to compel or secure the 


 


33

















 


performance
and observance by the Seller and the Servicer, as applicable, of each of their
obligations to the Issuer under or in connection with the Sale and Servicing
Agreement in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer under
or in connection with the Sale and Servicing Agreement to the extent and in the
manner directed by the Indenture Trustee[ or the Insurer (for so long as it is
the Controlling Party)], including the transmission of notices of default on
the part of the Seller or the Servicer thereunder and the institution of
legal or administrative actions or proceedings to compel or secure performance
by the Seller or the Servicer of each of their obligations under the Sale and
Servicing Agreement.


 


(b)           If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and at the written direction of the Holders of 66-2/3% of the
Outstanding Amount of the Notes shall, exercise all rights, remedies, powers,
privileges and claims of the Issuer against the Seller or the Servicer under or
in connection with the Sale and Servicing Agreement, including the right or
power to take any action to compel or secure performance or observance by the
Seller or the Servicer of each of their obligations to the Issuer thereunder
and to give any consent, request, notice, direction, approval, extension or
waiver under the Sale and Servicing Agreement, and any right of the Issuer to
take such action shall be suspended.


 


ARTICLE VI.


 


The Indenture Trustee and the Administrator


 


SECTION 6.1         Duties
of Indenture Trustee.


 


(a)           If an Event of Default has occurred and is continuing of which a
Responsible Officer of the Indenture Trustee has actual knowledge, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and the other Basic Documents and use the same degree of care and
skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.


 


(b)           Except during the continuance of an Event of Default with respect to a Series of
which a Responsible Officer of the Indenture Trustee has actual knowledge:


 


(i)            the Indenture Trustee undertakes to perform with
respect to such Series such duties and only such duties as are
specifically set forth in this Indenture and the other Basic Documents to which
it is a party and no implied covenants or obligations shall be read into this
Indenture or the other Basic Documents against the Indenture Trustee; and


 


(ii)           in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee as the case may be and conforming
to the requirements of this 


 


34

















 


Indenture and the other Basic Documents; however, the Indenture Trustee
shall examine the certificates and opinions to determine whether or not they
conform on their face to the requirements of this Indenture and the other
Basic Documents provided, further, that the Indenture Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished to
it, including, without limitation, any statistical, numerical or financial data
contained therein.


 


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


 


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


 


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


 


(iii)          the Indenture Trustee shall not be liable
with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 5.8.


 


(d)           The Indenture Trustee shall not be liable for interest on any money
received by it except as such Person may agree in writing with the Issuer.


 


(e)           Money held in trust by the Indenture Trustee, if any, need not be
segregated from other funds except to the extent required by law or the terms
of this Indenture, the Series Supplement or the Sale and Servicing
Agreement.


 


(f)            No provision of this Indenture or the other Basic Documents shall
require the Indenture Trustee to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties hereunder or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds to believe that repayment of such funds or indemnity reasonably
satisfactory to it against such risk or liability is not reasonably assured to
it.


 


(g)           Every provision of this Indenture and the other Basic Documents
relating to the conduct or affecting the liability of or affording protection
to the Indenture Trustee shall be subject to the provisions of this Section and
to the provisions of the TIA.


 


(h)           The Indenture Trustee shall, and hereby agrees that it will, perform all
of the obligations and duties required of it under each Related Document to
which it is a party.


 


(i)            Without limiting the generality of this Section 6.1, neither the
Indenture Trustee nor the Administrator shall have any duty (i) to see to
any recording, filing or depositing of this Indenture, the Series Supplement
or any agreement referred to 


 


35

















 


herein
or any financing statement evidencing a security interest in the Financed
Vehicles, or to see to the maintenance of any such recording or filing or
depositing or to any recording, refiling or redepositing of any thereof, (ii) to
see to any insurance of the Financed Vehicles or Obligors or to effect or
maintain any such insurance, (iii) to see to the payment or discharge of
any tax, assessment or other governmental charge or any Lien or encumbrance of
any kind owing with respect to, assessed or levied against any part of the
Trust, (iv) to confirm or verify the contents of any reports or
certificates delivered to the Indenture Trustee pursuant to this Indenture, the
Series Supplement or the Sale and Servicing Agreement believed by the
Indenture Trustee to be genuine and to have been signed or presented by the
proper party or parties, or (v) to inspect the Financed Vehicles at any
time or ascertain or inquire as to the performance or observance of any of the
Issuer’s, the Seller’s or the Servicer’s representations, warranties or
covenants or the Servicer’s duties and obligations as Servicer and as custodian
of the Receivable Files under the Sale and Servicing Agreement.


 


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


 


SECTION 6.2         Rights
of Indenture Trustee.


 


(a)           The Indenture Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the proper person. The
Indenture Trustee need not investigate any fact or matter stated in the
document.


 


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


 


(c)           The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for
the supervision of the Servicer or any other agent, attorney, custodian or
nominee appointed with due care by it hereunder.


 


(d)           The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee’s
conduct does not constitute willful misconduct, negligence or bad faith.


 


(e)           The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to any Related
Documents and the Notes and such advice or opinion of counsel shall be full and
complete authorization and protection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.


 


36

















 


(f)            The Indenture Trustee shall be under no obligation to institute,
conduct or defend any litigation under this Indenture or the Series Supplement
or in relation to this Indenture or the Series Supplement, at the request,
order or direction of any of the Holders of Notes, pursuant to the provisions
of this Indenture or the Series Supplement, unless such Holders of Notes[
or the Insurer (for so long as it is the Controlling Party)] shall have offered
to the Indenture Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby; provided,
however, that the Indenture Trustee shall, upon the occurrence of an
Event of Default (that has not been cured), exercise the rights and powers
vested in it by this Indenture and the Series Supplement with reasonable
care and skill customary for the care and skill exercised by Indenture Trustees
under similar circumstances.


 


(g)           The Indenture Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document unless required in writing to do so by any Holder of a
Note[ or the Insurer, as applicable]; provided, however, that if
the payment within a reasonable time to the Indenture Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Indenture Trustee not reasonably
assured to the Indenture Trustee by the security afforded to it by the terms of
this Indenture, the Series Supplement or the Sale and Servicing Agreement,
the Indenture Trustee may require indemnity reasonably satisfactory to it
against such cost, expense or liability as a condition to so proceeding; the
reasonable expense of every such examination shall be paid by the Person making
such request.


 


(h)           The right of the Indenture Trustee to perform any discretionary
act enumerated in this Indenture shall not be construed as a duty, and the
Indenture Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of such act. For purposes of
clarification, the Indenture Trustee shall be under no obligation hereunder to
monitor the perfection of any security interest or the filing of any financing
statement or continuation statement in connection therewith.


 


(i)            The Indenture Trustee shall not be required to give any bond or surety
in respect of the execution of the Trust Estate created hereby or the powers
granted hereunder.


 


(j)            Anything in this Indenture or any supplement hereto to the contrary
notwithstanding, in no event shall the Indenture Trustee be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Indenture Trustee has been advised of
the likelihood of such loss or damage and regardless of the form of
action.


 


(k)           The Indenture Trustee shall not be required to take notice or be deemed
to have notice or knowledge of any default, Event of Default or Servicer Termination
Event unless a Responsible Officer of the Indenture Trustee shall have actual
notice thereof.


 


37

















 


SECTION 6.3         Individual
Rights of Indenture Trustee. The Indenture Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Issuer or its Affiliates with the same rights it would have if it
were not Indenture Trustee. Any Note Paying Agent, Note Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the
Indenture Trustee must comply with Sections 6.11 and 6.12.


 


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


 


SECTION 6.5         Notice
of Defaults. If an Event of Default occurs and is continuing and if it is
either actually known by, or written notice of the existence thereof has been
delivered to, a Responsible Officer of the Indenture Trustee, the Indenture
Trustee shall[ promptly notify the Insurer and] mail to each Noteholder notice
of the Event of Default within 90 days after such knowledge or notice occurs. Except
in the case of an Event of Default in payment of principal of or interest on
any Note, the Indenture Trustee may withhold the notice to Noteholders if
and so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Noteholders.


 


SECTION 6.6         Reports
by Servicer to Holders. Upon the written request of any Noteholder to the
Servicer, the Servicer shall on behalf of the Issuer deliver to the
Administrator for distribution to any Noteholder such information as may be
reasonably required by such Noteholder to enable such Noteholder to prepare its
federal and state income tax returns required by law. Neither the Indenture
Trustee nor the Administrator shall have any duty or obligation to verify or
confirm the contents of the information contained therein.


 


SECTION 6.7         Indenture
Trustee Compensation and Indemnification.


 


(a)           As payable in the Series Supplement, the Issuer shall, or shall
cause the Servicer to, pay to the Indenture Trustee from time to time the
Indenture Trustee Fee as compensation for its services. The Indenture Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall or shall cause the Servicer to reimburse the
Indenture Trustee for all reasonable out-of-pocket expenses incurred or made by
it, including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee’s agents, outside counsel,
accountants and experts. The Issuer shall or shall cause the Servicer to
indemnify the Indenture Trustee, and its respective officers, directors,
employees and agents against any and all loss, liability or expense (including
attorneys’ fees and expenses) incurred by each of them in connection with the
acceptance or the administration of this trust and the performance of its
duties hereunder. The Indenture 


 


38

















 


Trustee
shall notify the Issuer and the Servicer promptly of any claim for which it may seek
indemnity. Failure by the Indenture Trustee to so notify the Issuer and the
Servicer shall not relieve the Issuer of its obligations hereunder or the Servicer
of its obligations under Article XII of the Sale and Servicing Agreement.
The Issuer shall defend or shall cause the Servicer to defend any claim for
indemnity that may arise against the Indenture Trustee, or the Indenture
Trustee may have separate counsel and the Issuer shall or shall cause the
Servicer to pay the fees and expenses of such counsel. Neither the Issuer nor
the Servicer need reimburse any expense or indemnify against any loss,
liability or expense incurred by the Indenture Trustee through such Person’s
own willful misconduct, negligence or bad faith.


 


(b)           The Issuer’s payment obligations to the Indenture Trustee pursuant to
this Section shall survive the resignation or removal of the Indenture
Trustee and the discharge of this Indenture. When the Indenture Trustee incurs
expenses after the occurrence of an Insolvency Event with respect to the
Issuer, the expenses are intended to constitute expenses of administration
under Title 11 of the United States Code or any other applicable federal or
state bankruptcy, insolvency or similar law. Notwithstanding anything else set
forth in any Related Documents, the Indenture Trustee agrees that the
obligations of the Issuer (but not the Servicer) to the Indenture Trustee
hereunder or under any other Related Documents, shall be recourse to the Series Trust
Estate only and specifically shall not be recourse to the assets of any
Securityholder. In addition, the Indenture Trustee agrees that its recourse to
the Issuer, the Series Trust Estate, the Seller and amounts held pursuant
to the Series Support shall be limited to the right to receive the
distributions as provided for in the payment priority provisions of the Series Supplement.


 


SECTION 6.8         Replacement
of Indenture Trustee. The Indenture Trustee may, and in the circumstances
specified in subparagraph (i) shall, resign at any time upon 60 days’
prior written notice by so notifying the Issuer[, the Insurer], Holders of a
majority of Outstanding Amount of the Notes and the Servicer. In addition, the Servicer
may[, with the consent of the Insurer (for so long as it is the Controlling
Party),] remove the Indenture Trustee by so notifying the Indenture Trustee
upon 60 days’ written notice. The Issuer may[, with the consent of the Insurer
(for so long as it is the Controlling Party)], and shall at the direction of
the Noteholders, remove the Indenture Trustee, if:


 


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


 


(ii)           a court having jurisdiction in the premises
in respect of the Indenture Trustee in an involuntary case or proceeding under
federal or state banking or bankruptcy laws, as now or hereafter constituted,
or any other applicable federal or state bankruptcy, insolvency or other
similar law, shall have entered a decree or order granting relief or appointing
a receiver, liquidator, assignee, custodian, trustee, conservator, sequestrator
(or similar official) for the Indenture Trustee or for any substantial part of
the Indenture Trustee’s property, or ordering the winding-up or liquidation of
the Indenture Trustee’s affairs;


 


39

















 


(iii)          an involuntary case under the federal
bankruptcy laws, as now or hereafter in effect, or another present or future
federal or state bankruptcy, insolvency or similar law is commenced with
respect to the Indenture Trustee and such case is not dismissed within 60 days;


 


(iv)          the Indenture Trustee commences a voluntary
case under any federal or state banking or bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law, or consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, conservator, sequestrator
(or other similar official) for the Indenture Trustee or for any substantial part of
the Indenture Trustee’s property, or makes any assignment for the benefit of
creditors or fails generally to pay its debts as such debts become due or takes
any corporate action in furtherance of any of the foregoing;


 


(v)           the Indenture Trustee otherwise becomes
incapable of acting; or


 


(vi)          the rating assigned to the long-term
unsecured debt obligations of the Indenture Trustee by the Rating Agencies
shall be lowered below the rating of “BBB”, “Baa2” or equivalent rating or be
withdrawn by either of the Rating Agencies.


 


As a condition precedent to the effectiveness of any
such resignation or removal, the Indenture Trustee shall provide to the
Servicer, at least 30 calendar days prior to the effective date of any such
resignation or removal, written notice, in form and substance reasonably
satisfactory to the Servicer, containing all information reasonably requested
by the Servicer in order for the Servicer to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to the replacement of
the Indenture Trustee. If the Indenture Trustee fails to fulfill its
obligations under this Section 6.8 with respect to notice to the Servicer
or under Article XIII of the Sale and Servicing Agreement, and such
failure continues for the lesser of 10 calendar days or such period in which
the applicable Exchange Act report can be filed timely (without taking into
account any extensions), the Servicer may terminate the Indenture Trustee.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the
office of Indenture Trustee for any reason (the Indenture Trustee in such event
being referred to herein as the retiring Indenture Trustee), the Issuer shall
promptly deliver a written notice of such removal, resignation or vacancy to
the Servicer[ and the Insurer], and the Servicer may[, with the consent of the
Insurer (for so long as it is the Controlling Party),] appoint a successor
Indenture Trustee that satisfies the eligibility requirements of Section 6.11.
If the Servicer fails to appoint such a successor Indenture Trustee, the
Issuer[, the Insurer (for so long as it is the Controlling Party)] or a
resigning Indenture Trustee may petition any court of competent
jurisdiction to appoint a successor Indenture Trustee. If the Indenture Trustee
resigns or is removed, the Indenture Trustee shall also resign or be removed,
as the case may be, as Note Paying Agent, Note Registrar and Certificate
Paying Agent.


 


40

















 


In connection with its resignation or removal, the
Indenture Trustee agrees to cooperate with any successor Indenture Trustee in
effecting the termination of the Indenture Trustee’s responsibilities and
rights hereunder and shall promptly provide such successor Indenture Trustee
all documents and records reasonably requested by it to enable it to assume the
Indenture Trustee’s functions hereunder.


 


A successor Indenture Trustee shall deliver a
written acceptance of its appointment to the retiring Indenture Trustee[, the
Insurer], the Issuer and the Administrator and shall, at least 15 calendar days
prior to the effective date of its acceptance, provide to the Servicer written
notice thereof, in form and substance reasonably satisfactory to the
Servicer, containing all information reasonably requested by the Servicer in
order for the Servicer to comply with its reporting obligation under Item 6.02
of Form 8-K with respect to a replacement of the Indenture Trustee.
Thereupon the resignation or removal of the retiring Indenture Trustee shall
become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the retiring Indenture Trustee under the Basic
Documents. The successor Indenture Trustee shall mail a notice of its
succession to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee.


 


If the Indenture Trustee fails to comply with Section 6.11,
any Noteholder[ or the Insurer (for so long as it is the Controlling Party)] may petition
any court of competent jurisdiction for the removal of the Indenture Trustee
and the appointment of a successor Indenture Trustee.


 


Notwithstanding the replacement of the Indenture
Trustee pursuant to this Section, the Issuer’s and the Servicer’s obligations
under Section 6.7 shall continue for the benefit of the retiring Indenture
Trustee.


 


SECTION 6.9         Successor
Indenture Trustee by Merger. If the Indenture Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation or banking association, the
resulting, surviving or transferee entity without any further act shall be the
successor Indenture Trustee; provided that such corporation or banking
association shall otherwise be eligible under Section 6.11 hereof. The
Indenture Trustee shall provide the Rating Agencies[ and the Insurer] with
written notice of any such transaction as soon as practical thereafter. As a
condition precedent to the effectiveness of any merger or consolidation of the
Indenture Trustee, the Indenture Trustee shall provide to the Servicer, at
least 30 calendar days prior to the effective date of any such merger or
consolidation, written notice thereof, in form and substance reasonably
satisfactory to the Servicer, containing all information reasonably requested
by the Servicer in order for the Servicer to comply with its reporting
obligation under Item 6.02 of Form 8-K with respect to a successor
Indenture Trustee. If the Indenture Trustee fails to fulfill its obligations
under this Section 6.9 with respect to notice to the Servicer or under Article XIII
of the Sale and Servicing Agreement, and such failure continues for the lesser
of 10 calendar days or such period in which the applicable Exchange Act report
can be filed 


 


41

















 


timely (without taking into account any extensions), the Servicer may[,
with the consent of the Insurer (for so long as it is the Controlling Party),]
terminate the Indenture Trustee.


 


SECTION 6.10       Appointment
of Co-Indenture Trustee or Separate Indenture Trustee.


 


(a)           Notwithstanding any other provisions of this Indenture, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Trust may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments
to appoint one or more Persons to act as a co-trustee or co-trustees, or
separate trustee or separate trustees, of all or any part of the Series Trust
Estate, and to vest in such Person or Persons, in such capacity and for the
benefit of the Secured Parties, such title to the Series Trust Estate, or
any part hereof, and, subject to the other provisions of this Section,
such powers, duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section 6.11
and no notice to Noteholders of the appointment of any co-trustee or separate
trustee shall be required under Section 6.8 hereof. The cost and expense
of such co-trustee or co-trustees, and/or separate trustee or separate
trustees, shall be a cost and expense of the Indenture Trustee pursuant to Section 3.03(a)(iii) of
the Series Supplement.


 


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


 


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


 


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


 


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


 


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


 


42

















 


trustee
shall refer to this Indenture and the conditions of this Article VI. Each
separate trustee and co-trustee, upon its acceptance of the trusts conferred,
shall be vested with the estates or property specified in its instrument of
appointment, either jointly with the Indenture Trustee or separately, as may be
provided therein, subject to all the provisions of this Indenture, specifically
including every provision of this Indenture relating to the conduct of,
affecting the liability of, or affording protection to, the Indenture Trustee.
Every such instrument shall be filed with the Indenture Trustee.


 


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


 


SECTION 6.11       Eligibility:
Disqualification. The Indenture Trustee shall at all times:  satisfy TIA § 310(a), have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition, and have a long-term debt rating of at
least “BBB”, “Baa2” or equivalent rating from each of the Rating Agencies. The
Indenture Trustee shall comply with TIA § 310(b), including the optional
provision permitted by the second sentence of TIA § 310(b)(9); provided,
however, that there shall be excluded from the operation of TIA § 310(b)(1) any
indenture or indentures under which other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are
met.


 


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


 


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


 


(a)           Due Organization. The Indenture Trustee is a
[            
banking
              ],
duly organized, validly existing and in good standing under the laws of the United
States and is duly authorized and licensed under applicable law to conduct its
business as presently conducted.


 


(b)           Corporate Power. The Indenture Trustee has all requisite
right, power and authority to execute and deliver this Indenture, the Series Supplement
and any other Related Document to which it is a party and to perform all
of its duties as the Indenture Trustee hereunder.


 


(c)           Due Authorization. The execution and delivery by the Indenture
Trustee of this Indenture, the Series Supplement and any other Related
Documents to which it is a party, and the performance by the Indenture Trustee
of its duties hereunder 


 


43

















 


and
thereunder, have been duly authorized by all necessary corporate proceedings
which are required for the valid execution and delivery by the Indenture
Trustee, or the performance by the Indenture Trustee, of this Indenture, the Series Supplement
and such other Related Documents.


 


(d)           Valid and Binding Indenture. The Indenture Trustee has duly executed and
delivered this Indenture, the Series Supplement and each other Related
Document to which it is a party, and each of this Indenture, the Series Supplement
and each other Related Document constitutes the legal, valid and binding
obligation of the Indenture Trustee enforceable against the Indenture Trustee
in accordance with its terms, except as (i) such enforceability may be
limited by bankruptcy, insolvency, reorganization and similar laws relating to
or affecting the enforcement of creditors’ rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles
of general applicability.


 


SECTION 6.14       Waiver
of Setoffs. The Indenture Trustee hereby expressly waives any and all
rights of setoff that the Indenture Trustee may otherwise at any time have
under applicable law with respect to any Trust Account and agrees that amounts
in the Trust Accounts shall at all times be held and applied solely in
accordance with the provisions hereof.


 


SECTION 6.15       No
Consent to Certain Acts of Seller. The Seller shall not request that the
Indenture Trustee consent to, nor shall the Indenture Trustee consent to any
action proposed to be taken by the Seller pursuant to Article FIFTEENTH of
the Seller’s Articles of Incorporation.


 


SECTION 6.16       Duties, Liabilities and Limitations on
Liability of Administrator.


 


(a)           The Administrator shall undertake to perform such duties and only
such duties as are specifically set forth in this Indenture and the other Basic
Documents to which it is a party. The duties and obligations of the
Administrator with respect to the Notes and the Certificates and the Basic
Documents to which it is a party shall be determined solely by the express
provisions of such Basic Documents, the Administrator shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in the Basic Documents to which it is a party, and no implied
covenants or obligations shall be read into the Basic Documents against the
Administrator.


 


(b)           The Administrator shall have all of the rights of, benefits of, and
limitations on liability afforded to, the Indenture Trustee under this Article VI
to the same extent as though the Administrator had been named in the various provisions
of Article VI, except (i) to the extent otherwise provided in
Sections 6.17, 6.18 and 6.19 (for example, Section 6.17 shall apply
instead of Section 6.7), (ii) with respect to Section 6.4, the
Administrator shall be responsible for the Administrator’s certificate of
authentication, and (iii) to the extent a conflict arises between this Section 6.16
and another provision of this Article VI, this Section 6.16 shall
govern. Such rights, benefits 


 


44

















 


and
limitations will be accorded the Administrator, in its capacity as such, under
all of the Basic Documents.


 


(c)           Except with respect to the holding or control of any portion of the Series Trust
Estate, in acting under this Indenture and the other Basic Documents to which
it is a party and in connection with the Notes and the Ownership Interest, the
Administrator is acting solely as an agent of the Issuer and does not assume
any obligation or relationship of agency for or with, or any fiduciary obligation
towards, any of the Holders of the Notes; provided
that, the Administrator, when holding or controlling any portion of the Series Trust
Estate, shall be acting as a “collateral agent” solely on behalf of the
Indenture Trustee for the benefit of the Secured Parties.


 


(d)           The Administrator shall be obligated to make payments pursuant to the
terms of the Basic Documents only if, and only to the extent that, sufficient
funds are available therefor in the Collection Account. In no event shall the
Administrator, in its capacity as Administrator, Note Paying Agent or
Certificate Paying Agent or in its individual capacity, be liable for any such
payments.


 


(e)           In each case that the Administrator (including in its capacity as Note
Paying Agent or Certificate Paying Agent hereunder) may or is required
hereunder or under any other Basic Document to which it is a party to take any
action (an “Action”), including without limitation to make any determination or
judgment (including without limitation the proper reporting and/or withholding
for federal income tax purposes required with respect to any payment made under
any Basic Document for which the Administrator has a reporting and/or
withholding obligation for federal income tax purposes), to exercise rights or
powers or otherwise act hereunder or thereunder, the Administrator may seek
direction from the Servicer. The Administrator shall not be liable with respect
to any Action taken or omitted to be taken by it in good faith in accordance
with the direction from the Servicer. If the Administrator shall request
direction from the Servicer with respect to any Action, the Administrator shall
be entitled to refrain from such Action unless and until such Administrator
shall have received direction from the Servicer, and the Administrator shall
not incur liability to any Person by reason of so refraining.


 


(f)            The Administrator may rely, and shall be fully protected in
relying, on any direction or instruction received from the Servicer, the
Indenture Trustee or any other party hereto or to the other Basic Documents.


 


(g)           The Administrator shall not be responsible for filing any financing or
continuation statement or otherwise taking any action in connection with any
security interest or lien granted pursuant to the Basic Documents.


 


SECTION 6.17       Administrator Compensation and
Indemnification.


 


(a)           The Administrator shall be entitled to such compensation as shall be
mutually agreed upon between it and the Servicer for its services hereunder and
under the other Basic Documents to which it is a party, including its roles as
Note Paying Agent 


 


45

















 


and
Certificate Paying Agent and Certificate Registrar under the Trust Agreement.
The Administrator agrees and acknowledges that it shall look solely to the
Servicer for payment of such compensation and it shall not be entitled to
payment of such compensation from the Issuer, the Indenture Trustee or out of
the Series Trust Estate. The Issuer shall or shall cause the Servicer to
reimburse the Administrator for all reasonable out-of-pocket expenses incurred
or made by it, including costs of collection, in addition to the compensation
for its services. Such expenses shall include the reasonable compensation and
expenses, disbursements and advances of the Administrator’s agents, outside
counsel, accountants and experts.


 


(b)           The Administrator and any director, officer, employee or agent of the
Administrator shall be indemnified by the initial Servicer and held harmless by
the Servicer against any loss, liability or expense (including reasonable
attorney’s fees and expenses) arising out of, relating to or in connection with
(i) this Indenture, the Notes and the other Basic Documents or in
connection with their respective duties hereunder or any legal action relating
thereto, other than any loss, liability or expense incurred by reason of
willful misconduct, negligence or bad faith in the performance of the
Administrator’s duties hereunder or thereunder and (ii) any audit,
controversy or judicial proceeding relating to a governmental taxing authority.


 


(c)           Notwithstanding anything contained in this Indenture or any of the
other Basic Documents to the contrary, the indemnification provided for in this
Section 6.17 shall survive the payment of the Notes, the resignation or
removal of the Administrator and/or the satisfaction and discharge of this
Indenture.


 


SECTION 6.18       Replacement of Administrator.


 


No resignation or removal of the Administrator and
no appointment of a successor Administrator shall become effective until the
acceptance of appointment by the successor Administrator pursuant to this
Section. The Administrator may resign at any time by so notifying the
Issuer. The Issuer shall remove the Administrator if:


 


(a)           the Administrator fails to comply with Section 6.11 above;


 


(b)           the Administrator is adjudged a bankrupt or insolvent;


 


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


 


(d)           the Administrator otherwise becomes incapable of acting.


 


As a condition precedent to the effectiveness of any
such resignation or removal, the Administrator shall provide to the Servicer,
at least 30 calendar days prior to the effective date of any such resignation
or removal, written notice, in form and substance reasonably satisfactory
to the Servicer, containing all information reasonably requested by the
Servicer in order for the Servicer to comply with its reporting obligation
under Item 6.02 of Form 8-K with respect to the replacement of the Administrator.
If the Administrator fails to fulfill its obligations under this Section 6.8
with respect to notice to 


 


46

















 


the
Servicer or under Article XIII of the Sale and Servicing Agreement, and
such failure continues for the lesser of 10 calendar days or such period in
which the applicable Exchange Act report can be filed timely (without taking
into account any extensions), the Servicer may terminate the
Administrator. If the Administrator resigns or is removed or if a vacancy
exists in the office of Administrator for any reason (the Administrator in such
event being referred to herein as the retiring Administrator), the Issuer shall
promptly, but in no event later than 30 days after such removal or resignation,
appoint a successor Administrator.


 


A successor Administrator shall deliver a written
acceptance of its appointment to the retiring Administrator, the Issuer and the
Indenture Trustee and shall, at least 30 calendar days prior to the effective
date of its acceptance, provide to the Servicer written notice thereof, in form and
substance reasonably satisfactory to the Servicer, containing all information
reasonably requested by the Servicer in order for the Servicer to comply with
its reporting obligation under Item 6.02 of Form 8-K with respect to a
replacement of the Administrator. Thereupon the resignation or removal of the
retiring Administrator shall become effective, and the successor Administrator
shall have all the rights, powers and duties of the Administrator under this
Indenture and the other Basic Documents to which it is a party. The successor
Administrator shall mail a notice of its succession to Noteholders. The
retiring Administrator shall promptly transfer all property held by it as Administrator
to the successor Administrator.


 


If a successor Administrator does not take office
within 30 days after the retiring Administrator resigns or is removed, the
Indenture Trustee shall perform the obligations of the Administrator
hereunder until a successor Administrator shall be appointed, and for so long
as the Indenture Trustee serves as Administrator hereunder, the Indenture
Trustee shall be entitled to such compensation in addition to its compensation
pursuant to Section 6.7 hereunder as the Servicer and the Indenture
Trustee shall agree.


 


Notwithstanding the replacement of the Administrator
pursuant to this Section 6.18, the Servicer’s obligations under Section 6.17
above shall continue for the benefit of the retiring Administrator.


 


SECTION 6.19       Successor
Administrator by Merger.


 


If the Administrator consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust
business or assets to, another Person or banking association, the resulting,
surviving or transferee corporation without any further act shall be the
successor Administrator; provided, that such corporation or banking association
shall be otherwise qualified and eligible under Section 6.11 above. As a
condition precedent to the effectiveness of any merger or consolidation of the
Administrator, the Administrator shall provide to the Servicer, at least 30
calendar days prior to the effective date of any such merger or consolidation,
written notice thereof, in form and substance reasonably satisfactory to
the Servicer, containing all information reasonably requested by the Servicer
in order for the Servicer to comply with its reporting obligation under Item
6.02 of Form 8-K with respect to a successor 


 


47

















 


Administrator.
If the Administrator fails to fulfill its obligations under this Section 6.19
with respect to notice to the Servicer or under Article XIII of the Sale
and Servicing Agreement, and such failure continues for the lesser of 10
calendar days or such period in which the applicable Exchange Act report can be
filed timely (without taking into account any extensions), the Servicer may terminate
the Administrator.


 


In case, at the time such successor or successors by
merger, conversion or consolidation to the Administrator shall succeed to the
rights, duties and responsibilities created by this Indenture, any of the Notes
shall have been authenticated but not delivered, any such successor to the
Administrator may adopt the certificate of authentication, if any, of any
predecessor administrator, and deliver such Notes so authenticated; and in case
at that time any of the Notes shall not have been authenticated, any successor
to the Administrator may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor to the Administrator; and
in all such cases such certificates shall have the full force which it is
anywhere in the Notes or in this Indenture provided that the certificate of the
Administrator shall have.


 


ARTICLE VII.


 


Noteholders’ Lists and Reports


 


SECTION 7.1         Issuer
To Furnish To Indenture Trustee and Administrator Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the
Indenture Trustee and the Administrator with respect to each Series of
Notes (a) not more than five days after the earlier of (i) each
Record Date with respect to such Series and (ii) three months after
the last Record Date, a list, in such form as the Indenture Trustee and
the Administrator may reasonably require, of the names and addresses of
the Holders with respect to such Series as of such Record Date, (b) at
such other times as the Indenture Trustee and/or the Administrator may request
in writing, within 30 days after receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 10 days prior
to the time such list is furnished; provided, however, that so
long as the Administrator is the Note Registrar, no such list shall be required
to be furnished to the Administrator.


 


SECTION 7.2         Preservation
of Information; Communications to Noteholders. The Indenture Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of the Holders contained in the most recent list furnished to the
Indenture Trustee as provided in Section 7.1. The Indenture Trustee may destroy
any list furnished to it as provided in such Section 7.1 upon receipt of a
new list so furnished.


 


(a)           Noteholders may communicate pursuant to TIA § 312(b) with
other Noteholders with respect to their rights under this Indenture or under
the Notes.


 


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


 


48

















 


SECTION 7.3         Reports
by Issuer.


 


(a)           If this Indenture is qualified under the TIA, the Issuer shall:


 


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


 


(ii)           file with the Indenture Trustee and the
Commission in accordance with rules and regulations prescribed from time
to time by the Commission such additional information, documents and reports
with respect to compliance by the Issuer with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations; and


 


(iii)          supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Noteholders described in TIA § 313(c))
such summaries of any information, documents and reports required to be filed
by the Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a) as
may be required by rules and regulations prescribed from time to time
by the Commission.


 


(b)           The Indenture Trustee will mail as described in TIA Section 313(c) to
all Noteholders the information, documents and reports, or summaries thereof,
supplied to the Indenture Trustee pursuant to Section 7.3(a).


 


(c)           Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of each year.


 


(d)           Except as set forth in clause (b) above, the Indenture Trustee
shall not have any duty or obligation with respect to any reports or other
information delivered to it pursuant to this Section 7.3.


 


SECTION 7.4         Reports
by Indenture Trustee. If required by TIA § 313(a), within 60 days
after each March 31 beginning with March 31, [200  ] the
Indenture Trustee shall mail to each Noteholder as required by TIA § 313(c) a
brief report dated as of such date that complies with TIA § 313(a). The
Indenture Trustee also shall comply with TIA § 313(b).


 


The Indenture Trustee will file with the Commission
and each stock exchange, if any, on which the Notes are listed a copy of each
report delivered pursuant to Section 7.4(a) at the time of its
mailing to Noteholders. The Issuer shall notify the Indenture Trustee if and
when the Notes are listed on any stock exchange.


 


49

















 


ARTICLE VIII.


 


Accounts, Disbursements and Releases


 


SECTION 8.1         Collection
of Money. Except as otherwise expressly provided herein, the Indenture
Trustee may demand payment or delivery of, and shall receive and collect,
directly and without intervention or assistance of any fiscal agent or other
intermediary, all money and other property payable to or receivable by the
Indenture Trustee pursuant to this Indenture and the Sale and Servicing
Agreement. The Indenture Trustee or the Note Paying Agent on its behalf shall
apply all such money received by it as provided in this Indenture and the Series Supplement.
Except as otherwise expressly provided in this Indenture or in the Sale and
Servicing Agreement, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of the Series Trust
Estate, the Indenture Trustee may[, with the consent of the Insurer (for so
long as it is the Controlling Party)], and at the direction of the Holders of
the Outstanding Amount of the Notes shall, take such action as may be
appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.


 


SECTION 8.2         Release
of Series Trust Estate.


 


(a)           Subject to the payment of its fees and expenses pursuant to Section 6.7,
and to the extent not covered by Section 8.2(b), the Indenture Trustee
may, and when required by the Issuer and the provisions of this Indenture
shall, execute instruments to release property from the lien of this Indenture,
in a manner and under circumstances that are not inconsistent with the
provisions of this Indenture. No party relying upon an instrument executed by
the Indenture Trustee as provided in this Article VIII shall be bound to
ascertain the Indenture Trustee’s authority, inquire into the satisfaction of
any conditions precedent or see to the application of any monies.


 


(b)           The Indenture Trustee shall, at such time as there are no Notes
Outstanding[, the Note Policy has been terminated in accordance with its terms]
and all sums due the Indenture Trustee pursuant to Section 6.7[ and all
sums due the Insurer pursuant to the Insurance Agreement and the Basic
Documents] have been paid, release any remaining portion of the Series Trust
Estate that secured the Notes from the lien of this Indenture and release (or
direct the Administrator to release) to the Issuer or any other Person entitled
thereto any funds then on deposit in the Trust Accounts. The Indenture Trustee
shall release property from the lien of this Indenture pursuant to this Section 8.2(b) only
upon receipt of an Issuer Request accompanied by an Officer’s Certificate, an
Opinion of Counsel and (if required by the TIA) Independent Certificates in
accordance with TIA §§ 314(c) and 314(d)(1) meeting the
applicable requirements of Section 11.1.


 


SECTION 8.3         Opinion
of Counsel. The Indenture Trustee shall receive at least seven days’ notice
when requested by the Issuer to take any action 


 


50

















 


pursuant to Section 8.2(a), accompanied by copies of any
instruments involved, and the Indenture Trustee shall also require as a
condition to such action, an Opinion of Counsel, stating the legal effect of
any such action, outlining the steps required to complete the same, and
concluding that all conditions precedent to the taking of such action have been
complied with and such action will not materially and adversely impair the
security for the Notes or the rights of the Secured Parties in contravention of
the provisions of this Indenture; provided, however, that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Series Trust Estate. Counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in
connection with any such action.


 


ARTICLE IX.


 


Amendments; the Series Supplement


 


SECTION 9.1         Amendments
Without Consent of Noteholders.


 


(a)           Except as otherwise provided in the Series Supplement, without the
consent of the Holders of any Notes and with[ the written consent of the
Insurer (for so long as it is the Controlling Party) and the prior written
notice to the Rating Agencies, as evidenced to the Indenture Trustee, the
Administrator and the Issuer, when authorized by an Issuer Order, at any time
and from time to time, the parties hereto may enter into one or more
amendments hereto, in form satisfactory to the Indenture Trustee[, the
Insurer (for so long as it is the Controlling Party)], the Administrator and
the Owner Trustee, for any of the following purposes:


 


(i)            to correct or amplify the description of any
property at any time subject to the lien of this Indenture, or better to
assure, convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject to the
lien of this Indenture additional property;


 


(ii)           to evidence the succession, in compliance
with the applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein and in
the Notes contained;


 


(iii)          to add to the covenants of the Issuer, for
the benefit of the Holders of the Notes, or to surrender any right or power
herein conferred upon the Issuer;


 


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


 


(v)           to cure any ambiguity, to correct or
supplement any provision herein or in the Series Supplement which may be
inconsistent with any other provision herein or in the Series Supplement
or to make any other provisions with respect to matters or questions arising
under this Indenture or in the Series 


 


51

















 


Supplement; provided that such action shall not, as evidenced by
an Opinion of Counsel, adversely affect the interests of the Holders of the
Notes[ or the Insurer];


 


(vi)          to evidence and provide for the acceptance of
the appointment hereunder by a successor trustee with respect to the Notes and
to add to or change any of the provisions of this Indenture as shall be
necessary to facilitate the administration of the trusts hereunder by more than
one trustee, pursuant to the requirements of Article VI; or


 


(vii)         to modify, eliminate or add to the provisions
of this Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar federal
statute hereafter enacted and to add to this Indenture such other provisions as
may be expressly required by the TIA.


 


The Indenture Trustee and the Administrator are
hereby authorized to join in the execution of any such amendment and to make
any further appropriate agreements and stipulations that may be therein
contained.


 


(b)           Except as otherwise provided in the Series Supplement, the Issuer,
the Administrator and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Holders of the Notes and
with[ the prior written consent of the Insurer (for so long as it is the
Controlling Party) and] prior written notice to the Rating Agencies by the
Issuer, as evidenced to the Administrator and the Indenture Trustee, enter into
an amendment hereto[in form satisfactory to the Insurer (for so long as it
is the Controlling Party)] for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the
interests of any Noteholder[ or the Insurer].


 


SECTION 9.2         Amendments
With Consent of Noteholders. Except as otherwise provided in the Series Supplement,
the Issuer, the Administrator and the Indenture Trustee, when authorized by an
Issuer Order provided by the Servicer, also may, with[ the prior written
consent of the Insurer (for so long as it is the Controlling Party) and] prior
written notice to the Rating Agencies and with the consent of the Holders of
not less than a majority of the Outstanding Amount of each Class of Notes
affected thereby, by Act of such Holders delivered to the Issuer, the
Administrator and the Indenture Trustee, enter into an amendment hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Holders of the Notes under this Indenture; provided, however,
that[ if the Controlling Party is not the Insurer, no such amendment shall
adversely affect the interests of the Insurer; and provided further that] no
such amendment shall, without the consent of the Holder of each Outstanding
Note affected thereby:


 


(i)            change the date of payment of any installment
of principal of or interest on any Note, or reduce the principal amount
thereof, the interest rate thereon, 


 


52

















 


change the provision of this Indenture relating to
the application of collections on, or the proceeds of the sale of, the Series Trust
Estate to payment of principal of or interest on the Notes, or change any place
of payment where, or the coin or currency in which, any Note or the interest
thereon is payable;


 


(ii)           impair the right to institute suit for the
enforcement of the provisions of this Indenture requiring the application of
funds available therefor, as provided in Article V, to the payment of any
such amount due on the Notes on or after the respective due dates thereof;


 


(iii)          reduce the percentage of the Outstanding
Amount of the Notes, the consent of the Holders of which is required for any
such Series Supplement, or the consent of the Holders of which is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture;


 


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


 


(v)           reduce the percentage of the Outstanding
Amount of the Notes required to direct the Indenture Trustee to direct the
Issuer to sell or liquidate the Series Trust Estate pursuant to Section 4.03
of the Series Supplement;


 


(vi)          modify any provision of this Section except
to increase any percentage specified herein or to provide that certain
additional provisions of this Indenture or the Basic Documents cannot be
modified or waived without the consent of the Holder of each Outstanding Note
affected thereby;


 


(vii)         modify any of the provisions of this
Indenture in such manner as to affect the calculation of the amount of any
payment of interest or principal due on any Note on any Distribution Date
(including the calculation of any of the individual components of such
calculation) or to affect the rights of the Holders of Notes to the benefit of
any provisions for the mandatory redemption of the Notes contained in the Series Supplement;
or


 


(viii)        permit the creation of any lien ranking prior
to or on a parity with the lien of this Indenture with respect to any part of
the Series Trust Estate or, except as otherwise permitted or contemplated
herein or in the Series Supplement or the Related Documents, terminate the
lien of this Indenture on any property at any time subject hereto or deprive
the Holder of any Note of the security provided by the lien of this Indenture.


 


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


 


53

















 


Promptly after the execution by the Issuer, the
Administrator and the Indenture Trustee of any amendment pursuant to this
Section, the Indenture Trustee shall mail to the Holders of the Notes to which
such amendment relates a notice setting forth in general terms the substance of
such amendment. Any failure of the Indenture Trustee to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of any such amendment.


 


Prior to the execution of any amendment to this
Indenture, the Indenture Trustee and the Administrator shall be entitled to
receive and rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Indenture. The Indenture Trustee
and the Administrator may, but shall not be obligated to, enter into any such
amendment which affects the Indenture Trustee’s or the Administrator’s, as the
case may be, own rights, duties or immunities, as the case may be, under
this Indenture.


 


SECTION 9.3         Series Supplement
Authorizing the Notes.


 


(a)           The Notes issued hereunder shall be issued pursuant to the Series Supplement,
which shall set forth the terms and provisions of the Notes.


 


(b)           Amendments to the Series Supplement shall be governed by the
provisions of the Series Supplement.


 


SECTION 9.4         Execution
of the Series Supplement. The Indenture Trustee and the Administrator
shall be entitled to receive, and subject to Sections 6.1 and 6.2, shall be
fully protected in relying upon, an Opinion of Counsel (and, if requested, an
Officer’s Certificate) stating that the execution of the Series Supplement
is authorized or permitted by this Indenture.


 


SECTION 9.5         Effect
of Series Supplement. Upon the execution of the Series Supplement
or any amendment pursuant to the provisions of the Series Supplement or
hereof, this Indenture shall be and be deemed to be modified and amended in
accordance therewith with respect to the Notes affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities and
immunities under this Indenture of the Indenture Trustee, the Issuer and the
Holders of the Notes shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of the Series Supplement or any amendment shall
be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.


 


SECTION 9.6         Conformity
With Trust Indenture Act. Every amendment of this Indenture and the Series Supplement
executed pursuant to this Article IX shall conform to the
requirements of the Trust Indenture Act as then in effect so long as this
Indenture shall then be qualified under the Trust Indenture Act.


 


SECTION 9.7         Reference
in Notes to the Series Supplement. Notes authenticated and delivered
after the execution of the Series Supplement pursuant to this Article IX
may, and if required by the Issuer shall, bear a notation as to any matter 


 


54

















 


provided for in the Series Supplement. If the Issuer shall so
determine, new Notes so modified as to conform, in the opinion of the Issuer,
to the Series Supplement may be prepared and executed by the Issuer
and authenticated and delivered by the Administrator in exchange for
Outstanding Notes.


 


ARTICLE X.


 


SECTION 10.1       [Note Insurer’s Rights Regarding Actions,
Proceedings or Investigations.


 


(a)           In connection with any action, proceeding or investigation against or
with respect to the Issuer, for so long as the Insurer is the Controlling Party
the Indenture Trustee and the Issuer hereby agree to cooperate with, and to
take such action as directed in writing by, the Insurer, including, without
limitation, entering into such agreements and settlements as the Insurer shall
direct in writing, in its sole discretion, without the consent of any other
Person. Notwithstanding any other provision herein or in any of the other Basic
Documents, the Indenture Trustee shall not require any bond or indemnification
from any Person for taking of any action at the direction of the Insurer given
at a time when the Insurer is the Controlling Party, and the Indenture Trustee
shall not be liable to the Issuer or the Insurer for any such action that
conforms to the direction of the Insurer given at a time when the Insurer is
the Controlling Party. The Indenture Trustee’s reasonable out-of-pocket costs
and expenses (including attorneys’ fees and expenses) with respect to any such action
shall be reimbursed pursuant to Section 3.03(a) of the Series Supplement.


 


(b)           The Issuer and the Indenture Trustee hereby agree to provide to the
Insurer prompt written notice of any action, proceeding or investigation that
names the Issuer or the Indenture Trustee as a party or that involves the
Issuer or the Series Trust Estate or the rights or obligations of the
Insurer under the Related Documents or under the Note Policy, including,
without limitation, any insolvency or bankruptcy proceeding in respect of the
Issuer.


 


(c)           Notwithstanding anything contained herein or in any of the other Basic
Documents to the contrary, the Issuer and the Indenture Trustee shall not,
without the Insurer’s prior written consent so long as the Insurer is the Controlling
Party, which consent shall not be unreasonably withheld, or unless directed by
the Insurer in writing so long as the Insurer is the Controlling Party,
undertake or join any litigation or agree to any settlement of any action,
proceeding or investigation affecting the Series Trust Estate or the
Issuer or the rights or obligations of the Insurer under the Basic Documents or
under the Note Policy.


 


(d)           The Insurer shall have such rights as set forth in this Section, which
are in addition to any rights of the Insurer pursuant to the other provisions
of the Basic Documents and the rights set forth in this Section may be
exercised by the Insurer so long as the Insurer is the Controlling Party, in
its sole discretion, without the need for the consent or approval of the
Issuer, the Indenture Trustee or any other Person, notwithstanding any other
provision contained herein or in any of the other Basic 


 


55

















 


Documents.
Nothing contained in this Section shall be deemed to create or constitute
an obligation of the Insurer to exercise any of the rights provided for
herein.]


 


ARTICLE XI.


 


Miscellaneous


 


SECTION 11.1       Compliance Certificates and Opinions, etc.


 


(a)           Upon
any application or request by the Issuer to the Indenture Trustee or the
Administrator, as the case may be, to take any action under any provision of this Indenture or the Series Supplement,
the Issuer shall furnish to the Indenture Trustee or the Administrator, as the
case may be, (i) an Officer’s Certificate stating that all conditions
precedent, if any, provided for in this Indenture or the Series Supplement
relating to the proposed action have been complied with, (ii) an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with and (iii) (if required by the
TIA) an Independent Certificate from a firm of certified public accountants
meeting the applicable requirements of this Section, except that, in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture or the Series Supplement,
no additional certificate or opinion need be furnished.


 


Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture or the Series Supplement
shall include:


 


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


 


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


 


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


 


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


 


(b)           (i)  Prior to the deposit of any
property or securities with the Indenture Trustee (or the Administrator on
behalf of the Indenture Trustee) that is to be made the basis for the release
of any property or securities subject to the lien of this Indenture and the Series Supplement,
the Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture or the Series 


 


56

















 


Supplement, furnish to the Indenture Trustee an Officer’s Certificate
certifying or stating the opinion of each person signing such certificate as to
the fair value (within 90 days of such deposit) to the Issuer of the property
or securities to be so deposited.


 


(ii)           Whenever the Issuer is required to furnish to
the Indenture Trustee an Officer’s Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause (i) above,
the Issuer shall also deliver to the Indenture Trustee an Independent
Certificate as to the same matters, if the fair value to the Issuer of the
securities to be so deposited and of all other such securities made the basis
of any such withdrawal or release since the commencement of then-current fiscal
year of the Issuer, as set forth in the certificates delivered pursuant to
clause (i) above and this clause (ii), is 10% or more of the Outstanding
Amount of the Notes; provided, that such a certificate need not be furnished
with respect to any securities so deposited, if the fair value thereof to the
Issuer as set forth in the related Officer’s Certificate is less than $25,000
or less than 1% percent of the Outstanding Amount of the Notes.


 


(iii)          Other than with respect to the release of any
Repurchased Receivables or Liquidated Receivables (as such terms are defined in
the Sale and Servicing Agreement) or Receivables for which a substitution has
been completed pursuant to Section 5.02 of the Series Supplement,
whenever any property or securities are to be released from the lien of this
Indenture and the Series Supplement, the Issuer shall also furnish to the
Indenture Trustee an Officer’s Certificate certifying or stating the opinion of
each person signing such certificate as to the fair value (within 90 days of
such release) of the property or securities proposed to be released and stating
that in the opinion of such person the proposed release will not impair the
security under this Indenture and the Series Supplement in contravention
of the provisions hereof.


 


(iv)          Whenever the Issuer is required to furnish to
the Indenture Trustee an Officer’s Certificate certifying or stating the
opinion of any signer thereof as to the matters described in clause (i) above,
the Issuer shall also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of the property or
securities and of all other property other than Repurchased Receivables and
Defaulted Receivables (as such terms are defined in the Sale and Servicing
Agreement), or securities released from the lien of this Indenture since the
commencement of then current calendar year, as set forth in the certificates
required by clause (ii) above and this clause (iv), equals 10% or more of
the Outstanding Amount of the Notes; provided, that such certificate
need not be furnished in the case of any release of property or securities if
the fair value thereof as set forth in the related Officer’s Certificate is
less than $25,000 or less than 1 percent of then Outstanding Amount of the
Notes.


 


(v)           Notwithstanding any other provision of this
Section, the Issuer may (A) collect, liquidate, sell or otherwise
dispose of Receivables as and to the extent permitted or required by the Basic
Documents and (B) make cash payments 


 


57

















 


out of the Trust Accounts as and to the extent permitted or required by
the Basic Documents.


 


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


 


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


 


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


 


Whenever in this Indenture or the Series Supplement,
in connection with any application or certificate or report to the Indenture
Trustee, it is provided that the Issuer shall deliver any document as a
condition of the granting of such application, or as evidence of the Issuer’s
compliance with any term hereof, it is intended that the truth and accuracy, at
the time of the granting of such application or at the effective date of such
certificate or report (as the case may be), of the facts and opinions
stated in such document shall in such case be conditions precedent to the right
of the Issuer to have such application granted or to the sufficiency of such
certificate or report. The foregoing shall not, however, be construed to affect
the Indenture Trustee’s right to conclusively rely upon the truth and accuracy
of any statement or opinion contained in any such document as provided in Article VI.


 


SECTION 11.3       Acts
of Noteholders.


 


(a)           Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Noteholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Noteholders in person or by agents duly appointed in
writing; and except as herein otherwise expressly provided such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee, and, where it is 


 


58

















 


hereby
expressly required, to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the “Act” of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Indenture Trustee, the Administrator and the Issuer,
if made in the manner provided in this Section.


 


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


 


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


 


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


 


SECTION 11.4       Notices,
etc., to Indenture Trustee, Issuer and Rating Agencies. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Noteholders
or other documents provided or permitted by this Indenture or the Series Supplement
to be made upon, given or furnished to or filed with:


 


(a)           The Indenture Trustee by any Noteholder, the Issuer or the
Administrator shall be sufficient for every purpose hereunder if personally
delivered, delivered by overnight courier or mailed first-class and shall
be deemed to have been duly given upon receipt to the Indenture Trustee at its
Corporate Trust Office,


 


(b)           The Administrator by any Noteholder, the Issuer or the Indenture
Trustee shall be sufficient for every purpose hereunder if personally
delivered, delivered by overnight courier or mailed first-class and shall
be deemed to have been duly given upon receipt to the Administrator at its
Corporate Trust Office,


 


(c)           The Issuer by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if personally delivered, delivered by
facsimile or overnight courier or mailed first class, and shall be deemed to
have been duly given upon receipt to the Issuer addressed to:  HSBC Automotive Trust
[200  -  ,] in care of the Owner Trustee at its Corporate
Trust Office, or at any other address previously furnished in writing to the
Indenture Trustee by the Issuer. Each of the Issuer and the Administrator shall
promptly transmit any notice received by it from the Noteholders to the
Indenture Trustee.


 


Notices required to be given to the Rating Agencies
by the Issuer, the Indenture Trustee, the Administrator or the Owner Trustee
shall be in writing, personally delivered, delivered by overnight courier or
first class or via facsimile to (i) in the case of Moody’s, at the
following address: Moody’s Investors Service, Inc., 99 Church Street, New
York, New York 10004, Fax No:  (212)
553-0355, (ii) in the case of S&P, at the following address: Standard &
Poor’s Ratings Group, 55 Water Street, New York, New 


 


59

















 


York
10041, Attention: Asset Backed Surveillance Department, Fax No:  (212) 438-2649 and (iii) in the case of
Fitch, Inc., at the following address: One State Street Plaza, New York,
New York 10004, Fax No. (212) 480-4438; or as to each of the foregoing, at
such other address as shall be designated by written notice to the other
parties.


 


SECTION 11.5       Notices
to Noteholders; Waiver. Where this Indenture or the Series Supplement
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner
herein provided shall conclusively be presumed to have been duly given.


 


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


 


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


 


Where this Indenture or the Series Supplement
provides for notice to the Rating Agencies, failure to give such notice shall
not affect any other rights or obligations created hereunder, and shall not
under any circumstance constitute a Default or Event of Default.


 


SECTION 11.6       Alternate
Payment and Notice Provisions. Notwithstanding any provision of this
Indenture, the Series Supplement or any of the Notes to the contrary, the
Issuer may enter into any agreement with any Holder of a Note providing
for a method of payment, or notice by the Indenture Trustee or any Note Paying
Agent to such Holder, that is different from the methods provided for in this
Indenture or the Series Supplement for such payments or notices, provided
that such methods are reasonable and consented to by the Indenture Trustee and
the Note Paying Agent (which consent, in each case, shall not be unreasonably
withheld). The Issuer will furnish to the Indenture Trustee and the Note Paying
Agent a copy of each such agreement and the Indenture Trustee and the Note
Paying Agent, as the case may be, will cause payments to be made and
notices to be given in accordance with such agreements. Any additional costs
and expenses incurred by the Indenture Trustee or the Note Paying Agent, as the
case may be, pursuant to this Section shall be a cost and expense of
the 


 


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Indenture Trustee or the Administrator, respectively, pursuant to Section 3.03(a)(iii) of
the Series Supplement.


 


SECTION 11.7       Conflict
with TIA. If this Indenture is qualified under the TIA and if any provision
hereof limits, qualifies or conflicts with a provision of the TIA that is
required or deemed under the TIA to be a part of and govern this
Indenture, such required or deemed provision shall control. If any provision of
this Indenture modifies or excludes any provision of the TIA that may be so
modified or excluded, the latter provisions shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.


 


The provisions of TIA §§ 310 through 317 that
impose duties on any person (including the provisions automatically deemed
included herein unless expressly excluded by this Indenture) are a part of
and govern this Indenture, whether or not physically contained herein.


 


SECTION 11.8       Effect
of Headings and Table of Contents. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.


 


SECTION 11.9       Successors
and Assigns. All covenants and agreements in this Indenture and the Notes
by the Issuer shall bind its successors and assigns, whether so expressed or
not. All agreements of the Indenture Trustee in this Indenture, the Series Supplement
shall bind its successors. All agreements of the Servicer in this Indenture or
the Series Supplement shall bind its successors and assigns. All
agreements of the Administrator in this Indenture or the Series Supplement
shall bind its successors and assigns.


 


SECTION 11.10     Separability.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


SECTION 11.11     Benefits
of Indenture. Nothing in this Indenture or the Series Supplement or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder[ and the Insurer and its successors], and
the Noteholders, and any other party secured hereunder, and any other person
with an ownership interest in any part of the Series Trust Estate,
any benefit or any legal or equitable right, remedy or claim under this
Indenture. [The parties hereto agree that the Insurer is a third party
beneficiary hereof.]


 


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


 


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SECTION 11.13     GOVERNING
LAW. THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS WHICH
WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.


 


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


 


SECTION 11.15     Recording
of Indenture. If this Indenture or the Series Supplement is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Trust or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture or the Series Supplement.


 


SECTION 11.16     Trust
Obligation. No recourse may be taken, directly or indirectly, with
respect to the obligations of the Issuer, the Seller, the Servicer, the Owner
Trustee, the Administrator or the Indenture Trustee on the Notes or under this
Indenture or the Series Supplement or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Seller, the
Servicer, the Indenture Trustee, the Administrator or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer
or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Seller, the Servicer, the Indenture Trustee, the
Administrator or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Seller, the Servicer, the Indenture
Trustee, the Administrator or the Owner Trustee or of any successor or assign of
the Seller, the Servicer, the Indenture Trustee, the Administrator or the Owner
Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee, the
Administrator and the Owner Trustee have no such obligations in their
individual capacity) and except that any such owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity. For all purposes of this Indenture,
in the performance of any duties or obligations of the Issuer hereunder, the
Owner Trustee shall be subject to, and entitled to the benefits of, the terms
and provisions of Articles VI, VII, and VIII of the Trust Agreement.


 


SECTION 11.17     No
Petition. The Indenture Trustee and the Administrator, by entering into
this Indenture, and each Noteholder, by accepting a Note, hereby covenant and
agree that they will not at any time institute against the Seller, or the
Issuer, or join in, cooperate with or encourage others in connection with the
institution against the Seller, or the Issuer of, any bankruptcy,
reorganization, arrangement,


 


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 insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the Basic Documents or any of the Related
Documents.


 


SECTION 11.18     Limited Recourse.


 


(a)           Notwithstanding anything in the Related Documents to the contrary, the
Notes constitute limited recourse obligations of the Issuer and are limited in
recourse to the Series Trust Estate. The Indenture Trustee, by entering
into this Indenture and the Series Supplement, and each Noteholder agree
that recourse for the Notes is limited to the Series Trust Estate and, if
the Series Trust Estate shall prove to be insufficient to pay amounts due
under the Notes, the Noteholders shall have no claim against the assets of the
Issuer or the Seller other than the Series Trust Estate.


 


(b)           If, notwithstanding paragraph (a) above, the Noteholders are
deemed to have any interest in any asset of the Seller other than the Seller’s
interest in the Series Trust Estate, including any interest in assets of
the Seller pledged to secure debt obligations of the Seller other than the
Notes, the Indenture Trustee, by entering into this Indenture and the Series Supplement,
and each Noteholder agree that any such interest is subordinate to the claims
of the holders of any such debt obligations, and the Noteholders shall have no
rights in such assets until such other debt obligations are indefeasibly paid
in full. The agreement of the Indenture Trustee and the Noteholders pursuant to
this Section 11.18(b) is intended to constitute a subordination
agreement for the purposes of Section 510(a) of the Bankruptcy Code.


 


SECTION 11.19     Inspection.
The Issuer agrees that, on reasonable prior notice, it will permit any
representative of the Indenture Trustee, during the Issuer’s normal business
hours, to examine all the books of account, records, reports, and other papers
of the Issuer, to make copies and extracts therefrom, to cause such books to be
audited by independent certified public accountants, and to discuss the Issuer’s
affairs, finances and accounts with the Issuer’s officers, employees, and
independent certified public accountants, all at such reasonable times and as
often as may be reasonably requested. The Indenture Trustee shall and
shall cause its representatives to hold in confidence all such information
except to the extent disclosure may be required by law (and all reasonable
applications for confidential treatment are unavailing) and except to the
extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its Obligations hereunder.


 


SECTION 11.20     Limitation
of Liability. It is expressly understood and agreed by the parties hereto
that (a) this Indenture is executed and delivered by the Owner Trustee,
not individually or personally but solely as Owner Trustee of the Issuer under
the Trust Agreement, in the exercise of the powers and authority conferred and
vested in it, (b) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by the Owner Trustee but is made
and intended for the purpose of binding only the Issuer, (c) nothing
herein contained shall be construed as creating any 


 


63

















 


liability
on the Owner Trustee individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties to this Indenture and by any person claiming
by, through or under them and (d) under no circumstances shall the Owner
Trustee be personally liable for the payment of any indebtedness or expenses of
the Issuer or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaking by the Issuer under
this Indenture or any related documents.


 


[Signature Page Follows]


 


64

















 


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


 


	
   

  	
  HSBC AUTOMOTIVE TRUST [200  -  ]

  
	
   

  	
   

  
	
   

  	
  By:

  	
  [OWNER TRUSTEE],

  
	
   

  	
   

  	
  not in its individual capacity but solely as 

  Owner Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [INDENTURE TRUSTEE], not in its individual 

  capacity but solely as Indenture Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [ADMINISTRATOR],

  
	
   

  	
  as Administrator

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: 

  
					



 

















 


Exhibit A


 


FORM OF TRANSFEREE
CERTIFICATE


 


Pursuant to Section 2.4 of the Indenture dated
as of
                ,
200   between HSBC Automotive Trust 200  -  ,
[Indenture Trustee], a
              
banking
              ,
and [Administrator], a                   
banking association,
                            
(the “Transferee”) hereby certifies on the date hereof that either (check
appropriate certification):


 


o            (i) the
Transferee is not (A) an employee benefit plan (within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) that
is subject to Title I of ERISA or (B) a plan (within the meaning of Section 4975(e)(1) of
the Internal Revenue Code of 1986, as amended (the “Code”)) that is subject to Section 4975
of the Code (each of the foregoing, a “Plan”), and is not acting on behalf of
or investing the assets of a Plan; or


 


o            (ii) that
the Transferee’s acquisition and continued holding of the Definitive Note will
be covered by a prohibited transaction class exemption issued by the U.S.
Department of Labor.


 


 


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  [Name of Transferee]