indenture.htm


Exhibit 4.1

 


 







 


 


INDENTURE


 


between


 


HUNTINGTON AUTO TRUST 2012-1,


as Issuing Entity


 


and


 


DEUTSCHE BANK TRUST COMPANY AMERICAS,


as Indenture Trustee


 


Dated as of January 31, 2012


 


 









Indenture





  











  






CROSS REFERENCE TABLE1


 







 



	
TIA


Section

	  	
Indenture


Section


	
310

	
(a) (1)                                                                                                

	
6.11


	  	
(a) (2)                                                                                                

	
6.11


	  	
(a) (3)                                                                                                

	
6.10; 6.11


	  	
(a) (4)                                                                                                

	
N.A.2


	  	
(a) (5)                                                                                                

	
6.11


	  	
(b)                                                                                                

	
6.08; 6.11


	
311

	
(a)                                                                                                

	
6.12


	  	
(b)                                                                                                

	
6.12


	
312

	
(a)                                                                                                

	
7.01


	  	
(b)                                                                                                

	
7.02


	  	
(c)                                                                                                

	
7.02


	
313

	
(a)                                                                                                

	
7.03


	  	
(b) (1)                                                                                                

	
7.03


	  	
(b) (2)                                                                                                

	
7.03


	  	
(c)                                                                                                

	
7.03


	  	
(d)                                                                                                

	
7.03


	
314

	
(a)                                                                                                

	
3.09


	  	
(b)                                                                                                

	
3.06; 11.14


	  	
(c) (1)                                                                                                

	
11.01


	  	
(c) (2)                                                                                                

	
11.01


	  	
(c) (3)                                                                                                

	
11.01


	  	
(d)                                                                                                

	
11.01


	  	
(e)                                                                                                

	
11.01


	  	
(f)                                                                                                

	
N.A.


	
315

	
(a)                                                                                                

	
6.01(a)


	  	
(b)                                                                                                

	
6.05


	  	
(c)                                                                                                

	
6.01


	  	
(d)                                                                                                

	
5.11; 6.01(b)


	  	
(e)                                                                                                

	
5.13


	
316

	
(a) (1) (A)                                                                                                

	
5.11


	  	
(a) (1) (B)                                                                                                

	
5.12


	  	
(a) (2)                                                                                                

	
N.A.


	  	
(b)                                                                                                

	
5.07


	  	
(c)                                                                                                

	
N.A.


	
317

	
(a) (1)                                                                                                

	
5.03(b)


	  	
(a) (2)                                                                                                

	
5.03(d)


	  	
(b)                                                                                                

	
3.03(i)-(ii)


	
318

	
(a), (c)                                                                                                

	
11.22












________________________


 



	
1

	
Note:  This Cross Reference Table shall not, for any purpose, be deemed to be part of this Indenture.


	
2

	N.A. means Not Applicable. 







 



	  	  	
2007-1 Indenture









  





  











  






Table of Contents


 


Page


 



	
ARTICLE I


	
DEFINITIONS AND INCORPORATION BY REFERENCE


	  
	
Section 1.01

	
Definitions

	
2


	
Section 1.02

	
Other Definitional Provisions

	
7


	  	  	  
	
ARTICLE II


	
THE NOTES


	  	  	  
	
Section 2.01

	
Form; Denomination

	
9


	
Section 2.02

	
Execution, Authentication and Delivery

	
9


	
Section 2.03

	
Temporary Notes.

	
10


	
Section 2.04

	
Registration of Transfer and Exchange.

	
10


	
Section 2.05

	
Mutilated, Destroyed, Lost or Stolen Notes

	
12


	
Section 2.06

	
Persons Deemed Owners

	
13


	
Section 2.07

	
Payment of Principal and Interest

	
13


	
Section 2.08

	
Cancellation

	
14


	
Section 2.09

	
Tax Treatment; Withholding

	
14


	
Section 2.10

	
Intentionally Omitted

	
16


	
Section 2.11

	
Book-Entry Notes

	
16


	
Section 2.12

	
Notices to Depository

	
17


	
Section 2.13

	
Definitive Notes

	
17


	
Section 2.14

	
Depositor as Noteholder

	
17


	
Section 2.15

	
Reserved.

	
17


	
Section 2.16

	
ERISA

	
17


	
Section 2.17

	
Legending of the Notes

	
17


	  	  	  
	
ARTICLE III


	
COVENANTS


	  	  	  
	
Section 3.01

	
Payment of Principal and Interest

	
20


	
Section 3.02

	
Maintenance of Office or Agency

	
20


	
Section 3.03

	
Money for Payments to Be Held in Trust

	
20


	
Section 3.04

	
Existence

	
22


	
Section 3.05

	
Protection of Collateral; Manner of Perfection

	
22


	
Section 3.06

	
Opinions as to Collateral

	
23


	
Section 3.07

	
Performance of Obligations; Servicing of Loans

	
24


	
Section 3.08

	
Negative Covenants

	
26


	
Section 3.09

	
Annual Statement as to Compliance

	
26


	
Section 3.10

	
Issuing Entity May Not Merge or Consolidate

	
27


	
Section 3.11

	
No Other Business

	
27


	
Section 3.12

	
No Borrowing

	
28


	
Section 3.13

	
Servicer’s Obligations

	
28







 


 



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Section 3.14

	
Guarantees, Loans, Advances and Other Liabilities

	
28


	
Section 3.15

	
Capital Expenditures

	
28


	
Section 3.16

	
Removal of Administrator

	
28


	
Section 3.17

	
Restricted Payments

	
28


	
Section 3.18

	
Notice of Events of Default

	
28


	
Section 3.19

	
Further Instruments and Acts

	
28


	  	  	  
	
ARTICLE IV


	
SATISFACTION AND DISCHARGE


	  	  	  
	
Section 4.01

	
Satisfaction and Discharge of Indenture

	
30


	
Section 4.02

	
Application of Trust Money

	
30


	
Section 4.03

	
Repayment of Moneys Held by Paying Agent

	
30


	
Section 4.04

	
Release of Collateral

	
30


	  	  	  
	
ARTICLE V


	
REMEDIES


	  	  	  
	
Section 5.01

	
Events of Default

	
31


	
Section 5.02

	
Acceleration of Maturity; Rescission and Annulment

	
31


	
Section 5.03

	
Collection of Indebtedness and Suits for Enforcement by Indenture Trustee; Authority of the Controlling Class

	
32


	
Section 5.04

	
Remedies; Priorities

	
35


	
Section 5.05

	
Optional Preservation of the Collateral

	
37


	
Section 5.06

	
Limitation of Suits

	
38


	
Section 5.07

	
Unconditional Rights of Noteholders to Receive Principal and Interest

	
38


	
Section 5.08

	
Restoration of Rights and Remedies

	
39


	
Section 5.09

	
Rights and Remedies Cumulative

	
39


	
Section 5.10

	
Delay or Omission Not a Waiver

	
39


	
Section 5.11

	
Control by Controlling Class

	
39


	
Section 5.12

	
Waiver of Past Defaults

	
39


	
Section 5.13

	
Undertaking for Costs

	
40


	
Section 5.14

	
Waiver of Stay or Extension Laws

	
40


	
Section 5.15

	
Action on Notes

	
40


	
Section 5.16

	
Performance and Enforcement of Certain Obligations

	
40


	  	  	  
	
ARTICLE VI


	
THE INDENTURE TRUSTEE


	  	  	  
	
Section 6.01

	
Duties of Indenture Trustee

	
42


	
Section 6.02

	
Rights of Indenture Trustee

	
43


	
Section 6.03

	
Individual Rights of Indenture Trustee

	
45


	
Section 6.04

	
Indenture Trustee’s Disclaimer

	
45


	
Section 6.05

	
Notice of Defaults

	
45


	
Section 6.06

	
Reports by Indenture Trustee to Holders

	
45


	
Section 6.07

	
Compensation and Indemnity

	
45


	
Section 6.08

	
Replacement of Indenture Trustee

	
46









 



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Section 6.09

	
Successor Indenture Trustee by Merger

	
47


	
Section 6.10

	
Appointment of Co-Indenture Trustee or Separate Indenture Trustee

	
48


	
Section 6.11

	
Corporate Indenture Trustee Requirements; Eligibility

	
49


	
Section 6.12

	
Waiver of Setoffs

	
50


	
Section 6.13

	
Indenture Trustee as Securities Intermediary

	
50


	
Section 6.14

	
Representations and Warranties.

	
50


	
Section 6.15

	
Exchange Act Rule 17g-5 Procedures.

	
51


	
Section 6.16

	
Communications Regarding Demands to Repurchase Receivables.

	
51


	
Section 6.17

	
Rule 15Ga-1 Compliance.

	
52


	  	  	  
	
ARTICLE VII


	
NOTEHOLDERS’ LISTS AND REPORTS


	  	  	  
	
Section 7.01

	
Issuing Entity to Furnish Indenture Trustee Names and Addresses of Noteholders

	
54


	
Section 7.02

	
Preservation of Information; Communications to Noteholders.

	
54


	
Section 7.03

	
Reports by the Indenture Trustee.

	
54


	
Section 7.04

	
Noteholder Lists

	
55


	
Section 7.05

	
Access to Certain Documentation and Information

	
55


	  	  	  
	
ARTICLE VIII


	
ACCOUNTS, DISBURSEMENTS AND RELEASES


	  	  	  
	
Section 8.01

	
Collection of Money

	
56


	
Section 8.02

	
Trust Accounts; Payment of Principal and Interest

	
56


	
Section 8.03

	
General Provisions Regarding Accounts

	
57


	
Section 8.04

	
Release of Collateral

	
57


	
Section 8.05

	
Opinion of Counsel and Officer’s Certificate

	
57


	  	  	  
	
ARTICLE IX


	
SUPPLEMENTAL INDENTURES


	  	  	  
	
Section 9.01

	
Supplemental Indentures With Consent of the Noteholders

	
58


	
Section 9.02

	
Supplemental Indentures Without Consent of Noteholders.

	
59


	
Section 9.03

	
Execution of Supplemental Indentures

	
62


	
Section 9.04

	
Effect of Supplemental Indentures

	
62


	
Section 9.05

	
Reference in Notes to Supplemental Indentures

	
62


	  	  	  
	
ARTICLE X


	
REDEMPTION OF NOTES


	  	  	  
	
Section 10.01

	
Redemption In Whole Pursuant to Option to Purchase

	
63


	
Section 10.02

	
Form of Redemption Notice

	
63


	
Section 10.03

	
Notes Payable on Redemption Date

	
64












 



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ARTICLE XI


	
MISCELLANEOUS


	  	  	  
	
Section 11.01

	
Compliance Certificates and Opinions, etc.

	
65


	
Section 11.02

	
Form of Documents Delivered to Indenture Trustee

	
66


	
Section 11.03

	
Acts of Noteholders

	
67


	
Section 11.04

	
Notices, etc., to Indenture Trustee, Issuing Entity and Rating Agencies

	
68


	
Section 11.05

	
Notices to Noteholders; Waiver

	
68


	
Section 11.06

	
Alternate Payment and Notice Provisions

	
69


	
Section 11.07

	
Effect of Headings and Table of Contents

	
69


	
Section 11.08

	
Successors and Assigns

	
69


	
Section 11.09

	
Severability

	
69


	
Section 11.10

	
Benefits of Indenture

	
69


	
Section 11.11

	
Legal Holidays

	
70


	
Section 11.12

	
GOVERNING LAW

	
70


	
Section 11.13

	
Counterparts

	
70


	
Section 11.14

	
Recording of Indenture

	
70


	
Section 11.15

	
Trust Obligation

	
70


	
Section 11.16

	
No Petition

	
70


	
Section 11.17

	
Inspection

	
71


	
Section 11.18

	
Limitation of Liability

	
71


	
Section 11.19

	
Waiver of Jury Trial.

	
71


	
Section 11.20

	
Force Majeure.

	
72


	
Section 11.21

	
Patriot Act.

	
72


	
Section 11.22

	
Conflict with Trust Indenture Act.

	
72


	  	  	  
	
ARTICLE XII


	
COMPLIANCE WITH THE FDIC RULE


	  	  	  
	
Section 12.01

	
Purpose.

	
72


	
Section 12.02

	
Requirements of FDIC Rule. As required by the FDIC Rule:

	
73


	
Section 12.03

	
Performance.

	
75


	
Section 12.04

	
Effect of Section 941 Rules.

	
75


	
Section 12.05

	
Actions upon Repudiation.

	
75


	
Section 12.06

	
Notice.

	
77


	
Section 12.07

	
Reservation of Rights.

	
77







 


 



	EXHIBIT A-1	Form of Class A Note
	EXHIBIT A-2	Form of Class B Note
	EXHIBIT A-3	Form of Class C Note
	EXHIBIT A-4	Form of Class D Note
	EXHIBIT B	Form of Rule 15Ga-1 Information Report







 



	  	iv	
 










  





  











  








THIS INDENTURE, dated as of January 31, 2012, is between HUNTINGTON AUTO TRUST 2012-1, a Delaware statutory trust (the “Issuing Entity”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, as trustee and not in its individual capacity (the “Indenture Trustee”).


 


Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Issuing Entity’s Class A-1 Auto Loan Asset Backed Notes (the “Class A-1 Notes”), Class A-2 Auto Loan Asset Backed Notes (the “Class A-2 Notes”), Class A-3 Auto Loan Asset Backed Notes (the “Class A-3 Notes”), Class A-4 Auto Loan Asset Backed Notes (the “Class A-4 Notes”; the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, and the Class A-4 Notes, each a “Class A Note” and collectively, the “Class A Notes”)), Class B Auto Loan Asset Backed Notes (the “Class B Notes”), Class C Auto Loan Asset Backed Notes (the “Class C Notes”) and Class D Auto Loan Asset Backed Notes (the “Class D Notes”) (the Class A Notes, Class B Notes, Class C Notes and Class D Notes, each a “Note” and collectively, the “Notes”):


 


 


GRANTING CLAUSE


 


The Issuing Entity hereby Grants to the Indenture Trustee on the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes, all (without duplication) of the Issuing Entity’s right, title and interest in and to all accounts, payment intangibles and other general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit and Investment Property and all other tangible and intangible property (together with all related supporting obligations and proceeds), whether now owned or hereafter acquired and whether now existing or hereafter coming into existence, including: (a) each Loan sold or contributed by the Loan Seller to the Depositor and sold or assigned by the Depositor to the Issuing Entity, together with all principal, interest and other amounts due or to become due thereon after the Cutoff Date; (b) any Liquidation Proceeds relating to a Loan or a Financed Vehicle; (c) the security interest in each Financed Vehicle and any other tangible or intangible property securing a Loan that has been sold by the Loan Seller to the Depositor on the Closing Date and sold or assigned by the Depositor to the Issuing Entity on the Closing Date (including all moneys due or to become due with respect thereto) and any accessions thereto and any other interest of Huntington or the Depositor, in any such Financed Vehicle and any other tangible or intangible property; (d) all other money, instruments, goods, advices of credit and letters of credit relating to, consisting of or arising under any Loan; (e) all documents and other items contained in each Loan File, (f) all funds on deposit from time to time in the Trust Accounts, the Certificate Distribution Account (as defined in the Trust Agreement), the Principal Distribution Account and any other accounts established pursuant to this Indenture, the Trust Agreement, or the Sale and Servicing Agreement, and all cash, investment property and other property from time to time credited thereto and all proceeds thereof (including all Net Investment Earnings thereon); (g) all Securities Accounts and all Security Entitlements with respect to Financial Assets credited to any Securities Account; (h) all rights under the Asset Purchase Agreement (including an assignment of the rights of the Depositor under the Asset Purchase Agreement) and the Sale and Servicing Agreement; (i) all rights in respect of Huntington Debt Forgiveness Policies with respect to the Loans; (j) all rights of the Loan Seller under agreements with the Dealers relating to the Loans, (k) all enforcement


 






Indenture





  











  






and other rights under the UCC and other Applicable Law in respect of any or all of the foregoing; (l) all present and future claims, demands, causes of action and choses in action in respect of any or all of the foregoing; and (m) the proceeds of or with respect to any and all of the foregoing (collectively, the “Collateral”).  It is understood and agreed that the foregoing Grant is intended to cover property owned by the Issuing Entity at the Closing Date.


 


The Issuing Entity hereby authorizes the filing of UCC financing statements describing as the collateral covered thereby “all assets of the debtor, including all personal property of the debtor” or words to that effect, and any limitations on such collateral description, notwithstanding that such collateral description may be broader in scope than the Collateral described in this Indenture.


 


The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, to secure compliance with the provisions of this Indenture and the Sale and Servicing Agreement.


 


The Indenture Trustee, on behalf of the Holders of the Notes, acknowledges such Grant, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected.


 


This Indenture shall be deemed to be and hereby is a security agreement within the meaning of the UCC as in effect in the State of New York.


 


ARTICLE I


DEFINITIONS AND INCORPORATION BY REFERENCE


Section 1.01                      Definitions.  Capitalized terms not defined in this Agreement have the meanings assigned thereto in the Sale and Servicing Agreement.  As used in this Agreement, the following terms shall, unless the context otherwise requires, have the following meanings.


 


“Act” has the meaning specified in Section 11.03(a).


 


“Administration Agreement” means the Owner Trust Administration Agreement, dated as of January 31, 2012 among the Administrator, the Owner Trustee, the Issuing Entity and the Indenture Trustee.


 


“Administrator” means Huntington, or any successor Administrator under the Administration Agreement.


 


“Affiliate” means, with respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person.  For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.




 



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“Agency Office” means the office of the Issuing Entity maintained pursuant to Section 3.02.


 


“Applicable Procedures” has the meaning specified in Section 2.11(b).


 


“Authorized Officer” means, with respect to the Issuing Entity, any officer of the Owner Trustee who is authorized to act for the Owner Trustee in matters relating to the Issuing Entity and who is identified on the list of Authorized Officers delivered by the Owner Trustee to the Indenture Trustee on the Closing Date (as such list may be modified or supplemented from time to time thereafter) and, so long as the Administration Agreement is in effect, any Vice President or more senior officer of the Administrator (or any authorized signatory specifically authorized by the board of directors of the Administrator) who is authorized to act for the Administrator in matters relating to the Issuing Entity and to be acted upon by the Administrator pursuant to the Administration Agreement and who is identified on the list of Authorized Officers delivered by the Administrator to the Indenture Trustee on the Closing Date (as such list may be modified or supplemented from time to time thereafter).


 


“Benefit Plan” means (a) an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code, which is subject to Section 4975 of the Code, (c) an entity deemed to hold “plan assets” of any of the foregoing by reason of investment by an employee benefit plan or plan in such entity or (d) a governmental, non-U.S. or church plan which is subject to any similar Law.


 


“Benefit Plan Investor” means (a) an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code, which is subject to Section 4975 of the Code, or (c) an entity deemed to hold “plan assets” of any of the foregoing by reason of investment by an employee benefit plan or plan in such entity.


 


“Book-Entry Notes” means Notes in which ownership and transfers shall be made through book entries by a Depository as described in Section 2.11.


 


“Clearstream” shall mean Clearstream Bank, société anonyme.


 


“Closing Date” means March 8, 2012.


 


“Code” means the U.S. Internal Revenue Code of 1986, as amended.


 


“Collateral” has the meaning specified in the Granting Clause of this Indenture.


 


“Corporate Trust Office” means the principal office of the Indenture Trustee at which at any particular time its corporate trust business is administered, which office at the date of execution of this Agreement is located at 60 Wall Street, 27th Floor, New York, NY 10005 (facsimile (212) 553-2458), Attention: SFS-TSS or at such other address as the Indenture Trustee may designate from time to time by notice to the Noteholders and the Issuing Entity, or the principal corporate trust office of any successor Indenture Trustee at the address designated by such successor Indenture Trustee by notice to the Noteholders and the Issuing Entity.  Definitive Notes should be delivered to 648 Grassmere Park Drive, Nashville, Tennessee 37211.


 



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


 


“Definitive Notes” means the Notes issued pursuant to the Indenture in definitive form either upon original issuance or upon termination of book-entry registration with respect to such Notes pursuant to Section 2.13.


 


“Depository” means The Depository Trust Company, as initial Depository, the nominee of which is Cede & Co., or any other organization registered as a “clearing agency” pursuant to Section 17A of the Securities Exchange Act of 1934, as amended.  The Depository shall at all times be a “clearing corporation” as defined in Section 8-102(3) of the UCC.


 


“Depository Agreement” means, with respect to any Class of Notes, the agreement between the Issuing Entity and the initial Depository, dated as of March 8, 2012.


 


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


 


“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.


 


“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear system, or any successor thereto in such capacity.


 


“Event of Default” has the meaning specified in Section 5.01.


 


“Financial Asset” means a “financial asset” as defined in Section 8-102(a)(9) of the UCC.


 


“Fiscal Year” means a calendar year.


 


“Grant” means mortgage, pledge, bargain, sell, warrant, alienate, remise, release, convey, assign, transfer, create, and grant a lien upon and a security interest in and a right of set-off against, deposit, set over and confirm pursuant to this Indenture.  A Grant of the Collateral or of any other agreement or instrument shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of the Collateral and all other moneys 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 a Person in whose name a Note is registered on the Register.


 



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“Huntington” means The Huntington National Bank, a national banking association.


 


“Indenture Trustee” has the meaning specified in the introductory paragraph of this Indenture.


 


“Independent” means, when used with respect to any specified Person, that such Person (a) is in fact independent of the Issuing Entity, any other obligor on the Notes, the Depositor 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 Issuing Entity, any such other obligor, the Depositor or any Affiliate of any of the foregoing Persons and (c) is not connected with the Issuing Entity, any such other obligor, the Depositor 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 11.01, made by an Independent appraiser or other expert appointed by an Issuing Entity 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.


 


“Investment Property” means “investment property” within the meaning of Section 9-102 of the UCC.


 


“Issuing Entity” has the meaning specified in the introductory paragraph of this Indenture.


 


“Issuing Entity Order” or “Issuing Entity Request” means a written order or request signed in the name of the Issuing Entity by any one of its Authorized Officers and delivered to the Indenture Trustee.


 


“1940 Act”  means the Investment Company Act of 1940, as amended.


 


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


 


“Officer’s Certificate” means a certificate signed by any Authorized Officer of the Issuing Entity, under the circumstances described in, and otherwise complying with, the applicable requirements of Section 11.01, and delivered to the Indenture Trustee.  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 Issuing Entity.


 


“Owner” means, with respect to a Book-Entry Note, any person who is a beneficial owner of a Book-Entry Note.


 


“Owner Trustee” means Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee under the Trust Agreement, or any successor Owner Trustee under the Trust Agreement.


 



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“Paying Agent” means the Indenture Trustee or any other Person that meets the eligibility standards for the Indenture Trustee specified in Section 6.11 and is authorized by the Issuing Entity to make payments to and distributions from the Collection Account, the Principal Distribution Account and the Reserve Account in accordance with the terms hereof and of the Sale and Servicing Agreement, including payments of principal of or interest on the Notes on behalf of the Issuing Entity.


 


“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 2.05 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.


 


“Protected Purchaser” has the meaning set forth in Section 8-303 of the UCC.


 


“Record Date” means, with respect to a Payment Date or Redemption Date, the close of business on the day immediately preceding such Payment Date or Redemption Date.


 


“Register” has the meaning specified in Section 2.04(a).


 


“Registered Holder” means the Person in whose name a Note is registered on the Register on the applicable Record Date.


 


“Registrar” means the registrar at any time of the Register, appointed pursuant to Section 2.04(a).


 


“Responsible Officer” means, with respect to Huntington, the Servicer, the Indenture Trustee or Owner Trustee, as applicable, any officer within the Corporate Trust Office of Huntington, the Servicer, the Indenture Trustee or the Owner Trustee, including any Vice President, Assistant Vice President, Assistant Treasurer, Assistant Secretary or any other officer of Huntington, the Servicer, the Indenture Trustee or the Owner Trustee customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, in each case having direct responsibility for the administration of the Basic Documents.


 


“Rule 15Ga-1 Information”:  As defined in Section 6.16 hereof.


 


“Sale and Servicing Agreement” means the Sale and Servicing Agreement, dated as of January 31, 2012, among the Issuing Entity, the Depositor, Huntington, as Loan Seller, Servicer, Calculation Agent, Custodian and Administrator, and the Indenture Trustee.


 


“Similar Law” means any federal, state, local or non-U.S. law that is similar to Section 406 of ERISA or Section 4975 of the Code.


 



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


 


“Successor Servicer” has the meaning specified in Section 3.07(e).


 


“Tax Opinion” means, with respect to any action, an Opinion of Counsel (which counsel shall not be an employee of the Issuing Entity or an Affiliate of the Issuing Entity) to the effect that, for federal and, unless waived by the applicable recipient in writing, state and local income, single business and franchise tax purposes, (a) such action will not adversely affect the tax characterization of any outstanding Notes that are characterized as debt, (b) such action will not cause the Issuing Entity to be deemed to be an association (or publicly-traded partnership) taxable as a corporation, and (c) such action will not cause or constitute an event in which gain or loss would be recognized by any Noteholder.


 


“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as amended.


 


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


 


Section 1.02                      Other Definitional Provisions.


 


(a)           All terms defined in this Agreement have the respective meanings ascribed thereto herein when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.


 


(b)           Accounting terms used in this Agreement and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms not defined in this Agreement or in any such certificate or other document, and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles in the United States as in effect from time to time.  To the extent that the definitions of accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under generally accepted accounting principles in the United States as in effect from time to time, the definitions contained in this Agreement or in any such certificate or other document shall control.


 


(c)           The words “hereof,” “herein,” “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; Section and Exhibit references contained in this Agreement are references to Sections and Exhibits in or to this Agreement unless otherwise specified; “or” includes “and/or”; and the term “including” means “including without limitation.”


 


(d)           The definitions contained in this Agreement are applicable to the singular and plural forms of such terms and to the masculine, feminine and neuter genders of such terms.


 



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(e)           Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein; references to a Person are also to its permitted successors and assigns.


 


[End of Article I]


 








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ARTICLE II




THE NOTES


 


Section 2.01                      Form; Denomination.  The Class A Notes, Class B Notes, Class C Notes, and Class D Notes, in each case together with the Indenture Trustee’s certificate of authentication, shall be in substantially the form set forth in Exhibit A-1, Exhibit A-2, Exhibit A-3, or Exhibit A-4, as applicable, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the officers executing the Notes, as evidenced by their execution of the Notes.  Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of such Note.


 


Each Note shall be dated the date of its authentication.  The terms of the Notes set forth in Exhibit A-1, Exhibit A-2, Exhibit A-3, or Exhibit A-4 are part of the terms of this Indenture.


 


The Notes shall be issuable as registered Notes in minimum denominations of $100,000 and in integral multiples of $1,000 in excess thereof (except for one Note of each Class of Notes which may be issued in a denomination other than an integral multiple of $1,000).


 


Section 2.02                      Execution, Authentication and Delivery.  The Notes shall be executed on behalf of the Issuing Entity by any of its Authorized Officers.  The signature of any such Authorized Officer on the Notes may be manual or facsimile.


 


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


 


The Indenture Trustee shall authenticate and deliver Notes for original issue in a principal amount of $308,000,000 in the aggregate with respect to the Class A-1 Notes, 330,000,000 in the aggregate with respect to the Class A-2 Notes, $444,000,000 in the aggregate with respect to the Class A-3 Notes, $143,250,000 in the aggregate with respect to the Class A-4 Notes, $19,500,000 in the aggregate with respect to the Class B Notes, $31,850,000 in the aggregate with respect to the Class C Notes and $23,400,000 in the aggregate with respect to the Class D Notes.  The aggregate principal amount of (i) Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes, Class C Notes and Class D Notes, as the case may be, outstanding at any time may not exceed the respective amounts set forth above with respect to such Classes of Notes.


 


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


 



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Section 2.03                      Temporary Notes.


 


(i)           Pending the preparation of Definitive Notes, as provided in Section 2.13, the Issuing Entity may execute, and upon receipt of an Issuing Entity Order, the Indenture Trustee shall authenticate and deliver, such 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 as are consistent with the terms of this Indenture as the officers executing such Notes may determine, as evidenced by their execution of such Notes.


 


(ii)           If temporary Notes are issued, the Issuing Entity shall cause Definitive Notes to be prepared without unreasonable delay.  After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at the Agency Office of the Issuing Entity to be maintained as provided in Section 3.02, without charge to the Noteholder.  Upon surrender for cancellation of any one or more temporary Notes, the Issuing Entity shall execute and the Indenture Trustee shall authenticate and deliver in exchange therefor a like principal amount of Definitive Notes of authorized denominations.  Until so delivered in exchange, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as Definitive Notes.


 


Section 2.04                      Registration of Transfer and Exchange.


 


(a)           The Issuing Entity shall cause to be kept the Register, comprising separate registers for each Class of Notes, in which, subject to such reasonable regulations as the Issuing Entity may prescribe, the Issuing Entity shall provide for the registration of the Notes and the registration of transfers and exchanges of the Notes (the “Register”). The Indenture Trustee shall initially be the Registrar for the purpose of registering the Notes and transfers of the Notes as herein provided. Upon any resignation of any Registrar, the Issuing Entity shall promptly appoint a successor Registrar or, if it elects not to make such an appointment, assume the duties of the Registrar. Notwithstanding anything to the contrary contained herein, the Registrar shall know only the Person in whose name a Note is registered in the Register, and the obligations of the Indenture Trustee (in its capacity as paying agent or otherwise) and the Registrar shall run only to such Persons.


 


(b)           If a Person other than the Indenture Trustee is appointed by the Issuing Entity as Registrar, the Issuing Entity shall give the Indenture Trustee prompt written notice of the appointment of such Registrar and of the location, and any change in the location, of the Register. The Indenture Trustee shall have the right to inspect the Register at all reasonable times and to obtain copies thereof. The Indenture Trustee shall have the right to rely upon a certificate executed on behalf of the Registrar by a Responsible Officer thereof as to the names and addresses of the Noteholders and the principal amounts and number of such Notes.


 


(c)           Upon surrender for registration of transfer of any Note at the Corporate Trust Office of the Indenture Trustee or the Agency Office of the Issuing Entity (and following the delivery, in the former case, of such Notes to the Issuing Entity by the Indenture Trustee), the Issuing Entity shall execute, the Indenture Trustee shall


 



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authenticate and the Noteholder shall obtain from the Indenture Trustee, in the name of the designated transferee or transferees, one or more new Notes of the same Class in any authorized denominations of a like aggregate principal amount.


 


(d)           At the option of the Noteholder, Notes may be exchanged for other Notes of the same Class in any authorized denominations, of a like aggregate principal amount and upon surrender of such Notes to be exchanged at the Corporate Trust Office of the Indenture Trustee or the Agency Office of the Issuing Entity (and following the delivery, in the former case, of Notes to the Issuing Entity by the Indenture Trustee), the Issuing Entity shall execute, and the Indenture Trustee shall authenticate and the Noteholder shall obtain from the Indenture Trustee, such Notes which the Noteholder making the exchange is entitled to receive.


 


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


 


(f)           Every Note presented or surrendered for registration of transfer or exchange shall be duly endorsed by, or be accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee and the Registrar, duly executed by the Holder thereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by a commercial bank or trust company.


 


(g)           No service charge shall be made to a Holder for any registration of transfer or exchange of Notes, but the Issuing Entity or Indenture Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges pursuant to Sections 2.03(b) or 9.04 not involving any transfer.


 


(h)           The preceding provisions of this Section 2.04 notwithstanding, the Issuing Entity shall not be required to transfer or make exchanges, and the Registrar need not register transfers or exchanges, (i) of Notes that are due for repayment within 15 days of submission to the Corporate Trust Office or the Agency Office; or (ii) if Section 2.15 has not been complied with in connection with such transfer.


 


By acquiring a Note, each purchaser and transferee thereof shall be deemed to represent and warrant that either (A) it is not (and for so long as it holds a Note or interest therein will not be) and is not acting on behalf of (and for so long as it holds a Note will not be acting on behalf of) (I) an “Employee Benefit Plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, (II) A “Plan” as defined in the Code, which is subject to Section 4975 of the Code, (III) an entity deemed to hold “Plan Assets” of any of the foregoing by reason of investment by an Employee Benefit Plan or Plan in such entity, or (IV) a governmental, non-U.S. or church plan which is subject to any federal, state, local or non-U.S. law that is substantially similar to Section 406 of ERISA or Section 4975 of the Code (any such federal, state, local or non-U.S. law, a “Similar Law”) or (B) the acquisition, holding and disposition of the Notes will not give


 



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rise to a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a non-exempt violation of any similar law.


 


(i)           Neither the Indenture Trustee nor the Registrar shall have any responsibility to monitor or restrict the transfer of beneficial ownership in any Note an interest in which is transferable through the facilities of the Depository. In addition, neither the Indenture Trustee nor the Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.


 


Section 2.05                      Mutilated, Destroyed, Lost or Stolen Notes.  If (i) any mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or wrongful taking of any Note, and (ii) there is delivered to the Indenture Trustee such security or indemnity as may be reasonably required by it to hold the Issuing Entity and the Indenture Trustee harmless, then, in the absence of notice to the Issuing Entity, the Registrar or the Indenture Trustee that such Note has been acquired by a Protected Purchaser, and provided that the requirements of Section 8-405 of the UCC are met, the Issuing Entity shall execute, and the Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or wrongfully taken Note, a replacement Note; provided, however, that if any such destroyed, lost or wrongfully taken Note, but not a mutilated Note, shall have become or within fifteen (15) days shall be due and payable, or shall have been called for redemption, instead of issuing a replacement Note, the Issuing Entity may 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 wrongfully taken Note, a Protected Purchaser of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Issuing Entity and the Indenture Trustee shall be entitled to recover such replacement Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Note from such Person to whom such replacement Note was delivered or any assignee of such Person, except a Protected Purchaser, and shall be entitled to recover upon the security or indemnity provided therefore to the extent of any loss, damage, cost or expense incurred by the Issuing Entity or the Indenture Trustee in connection therewith.


 


Upon the issuance of any replacement Note under this Section 2.05, the Issuing Entity 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 Indenture Trustee) connected therewith.


 


Every replacement Note issued pursuant to this Section 2.05 in replacement of any mutilated, destroyed, lost or wrongfully taken Note shall constitute an original additional contractual obligation of the Issuing Entity, whether or not the mutilated, destroyed, lost or wrongfully taken Note shall be at any time enforceable by anyone, and shall be entitled to all of


 



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the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.


 


The provisions of this Section 2.05 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 2.06                      Persons Deemed Owners.  Prior to due presentment for registration of transfer of any Note, the Issuing Entity, the Indenture Trustee and any agent of the Issuing Entity or the Indenture Trustee may treat the Person in whose name any Note is registered (as of the day of determination) as the owner of such Note for the purpose of receiving payments of principal of and interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Issuing Entity, the Indenture Trustee or any agent of the Issuing Entity or the Indenture Trustee shall be affected by notice to the contrary.


 


Section 2.07                      Payment of Principal and Interest.  The Notes shall accrue interest during each Interest Period at the applicable Interest Rate, calculated in accordance with Section 5.05 of the Sale and Servicing Agreement and the Notes, and shall be payable from amounts deposited in the Collection Account in accordance with Section 5.06(a) of the Sale and Servicing Agreement.  Interest accrued on the Notes during an Interest Period shall be due and payable on the Payment Date immediately following the end of such Interest Period.


 


(a)           The principal of the Notes will be due and payable in accordance with Section 5.06(b) of the Sale and Servicing Agreement.  The principal of the Notes shall also be due and payable as follows: (i) on the Redemption Date, in an amount equal to the outstanding Note Balance, (ii) on the date of acceleration of the maturity of the Notes pursuant to Section 5.02 of this Indenture in the amount of the outstanding Note Balance and (iii) to the extent any Notes remain and have not been paid prior to such date, on the Final Scheduled Payment Date in an amount equal to the outstanding Note Balance.


 


(b)           Any installment of interest or principal payable with respect to a Note that is punctually paid or duly provided for by the Issuing Entity on the applicable Payment Date shall be paid to the Person in whose name such Note is registered on the Record Date, by wire transfer of immediately available funds to the account of any such Noteholder at a bank or other entity having appropriate facilities therefor, if such Noteholder shall have provided the Trustee with wiring instructions no less than two (2) Business Days prior to the related Record Date (which wiring instructions may be in the form of a standing order applicable to all subsequent Payment Dates), or otherwise by check mailed to the address of such Noteholder as it appears in the Register; provided, however, that, with respect to Book-Entry Notes registered on the applicable Record Date in the name of the nominee of the Depository (initially, such nominee to be Cede & Co.) for which Definitive Notes have not been issued pursuant to Section 2.13, payment shall be made by wire transfer in immediately available funds to Cede & Co., for further credit to the account designated by such Holder.  The final distribution on each Note will be made in like manner, but only upon presentation and surrender of such Note at the Corporate Trust Office or such other location specified in the notice to Noteholders of such final distribution.  With respect to Book-Entry Notes for which Definitive Notes


 



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have not been issued, such notice shall be sent on the Business Day prior to such Payment Date by facsimile, and with respect to Definitive Notes, such notice shall be sent not later than three Business Days after such Record Date in accordance with Section 11.05, and, in each case, shall specify that such final installment shall be payable only upon presentation and surrender of such Note and shall specify the place where such Note may be presented and surrendered for payment of such installment. The Indenture Trustee shall not be liable for any failure to provide notice to the Noteholders as required pursuant to this Section 2.07(b) to the extent it has not received notice of such expected final Payment Date from the Issuing Entity not later than two Business Days after the Record Date.  Notices in connection with redemptions of Notes shall be mailed to Noteholders as provided in Section 10.02. The funds represented by any such checks returned undelivered shall be held in accordance with Section 3.03.  The final interest payment on each Class of Notes is due on the earlier of (a) the Payment Date on which the Note Balance of that Class of Notes is reduced to zero (including any Redemption Date) and (b) the applicable Final Scheduled Payment Date.


 


Section 2.08                      Cancellation.  All Notes surrendered for payment, registration of transfer, exchange or redemption shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly cancelled by the Indenture Trustee.  The Issuing Entity may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder that the Issuing Entity may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Indenture Trustee.  No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 2.08, except as expressly permitted by this Indenture.  All cancelled Notes may be held or disposed of by the Indenture Trustee in accordance with its standard retention or disposal policy as in effect at the time unless the Issuing Entity shall direct by an Issuing Entity Order that they be returned to it; provided, however, that such Issuing Entity Order is timely and the Notes have not been previously disposed of by the Indenture Trustee.


 


Section 2.09                      Tax Treatment; Withholding.    


 


(a)           The Issuing Entity has entered into this Indenture, and the Notes will be issued, with the intention that, for federal, state and local income, single business and franchise tax purposes, the Notes will qualify as indebtedness secured by the Collateral, and, unless otherwise required by law, the Noteholders and the Owners agree that, by acquiring any Note or interest therein, that it will not take a position contrary to such treatment.  The Issuing Entity, by entering into this Indenture agrees, solely for U.S. federal, state and local income, single business and franchise tax purposes, (i) to treat the Notes as debt secured by the Collateral and (ii) not to treat the Issuing Entity as an association (or publicly-traded partnership) taxable as a corporation, in each case, unless such treatment has been determined to be contrary to applicable law by a decision, judgment, decree or other order by any court of competent jurisdiction, which decision, judgment, decree or other order is final and binding after all appeals allowable by law.


 


(b)           In the event that any withholding tax is imposed on payments to a Noteholder, such tax shall reduce the amount otherwise distributable to such Noteholder in accordance with this Section. The Indenture Trustee or Paying Agent is hereby


 



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authorized and directed to retain from amounts otherwise distributable to the Noteholders sufficient funds for the payment of any tax that is legally owed with respect to such payment (but such authorization shall not prevent the Indenture Trustee or the Paying Agent from contesting any such tax in appropriate proceedings and withholding payment of such tax, if permitted by law, pending the outcome of such proceedings; provided, however, the Indenture Trustee or the Paying Agent shall not be required to contest any tax). The amount of any withholding tax imposed with respect to a Noteholder shall be treated as cash distributed to such Noteholder at the time it is withheld by the Indenture Trustee or Paying Agent and remitted to the appropriate taxing authority. If there is a possibility that withholding tax is payable with respect to a payment (such as a payment to a non-U.S. Noteholder), the Indenture Trustee or the Paying Agent may in its sole discretion withhold such amounts in accordance with this paragraph.


 


(c)           Prior to the receipt of any interest payment, any Noteholder or its transferee that is a United States person (as defined in Section 7701(a)(30) of the Code) shall (i) provide the Indenture Trustee and the Paying Agent with Internal Revenue Service Form W-9 (or successor form) or (ii) establish to the satisfaction of the Indenture Trustee and the Paying Agent that it is exempt from backup withholding.  Each Noteholder or its transferee agrees by acceptance of a Note that, upon request of the Issuing Entity, the Indenture Trustee or the Paying Agent, such Noteholder or its transferee will provide the Issuing Entity, the Indenture Trustee or the Paying Agent with a supplemental Internal Revenue Service Form W-9 (or successor form) to the extent legally able to do so and that each Noteholder or its transferee shall notify the Indenture Trustee or Paying Agent should subsequent circumstances render such forms or exemptions incorrect or invalid.  The Indenture Trustee and the Paying Agent shall be fully protected in relying upon, and each Noteholder or its transferee by its acceptance of a Note hereunder agrees to indemnify and hold the Indenture Trustee and the Paying Agent harmless against all claims or liability of any kind arising in connection with or related to the Indenture Trustee’s and the Paying Agent’s reliance upon, any documents, forms or information provided by any Noteholder or its transferee to the Issuing Entity, the Indenture Trustee or the Paying Agent pursuant to this Section 2.09.


 


(d)           Prior to the receipt of any interest payment, any Noteholder, and upon transfer, any transferee that is not a United States person (as defined in Section 7701(a)(30) of the Code) shall provide the Indenture Trustee and the Paying Agent with Internal Revenue Service Form W-8BEN, Form W-8ECI or other applicable Internal Revenue Service Form W-8 (or successor forms).  Each Noteholder or transferee agrees by acceptance of a Note that, upon request of the Issuing Entity, the Indenture Trustee or the Paying Agent, such Noteholder or transferee will provide the Issuing Entity, the Indenture Trustee or the Paying Agent with a supplemental Internal Revenue Service Form W-8BEN, W-8ECI or other applicable Internal Revenue Service Form W-8 (or successor forms) to the extent legally able to do so and that each Noteholder or its transferee shall notify the Indenture Trustee or Paying Agent should subsequent circumstances render such forms incorrect or invalid.  The Indenture Trustee and the Paying Agent shall be fully protected in relying upon, and each Noteholder or its transferee by its acceptance of a Note hereunder agrees to indemnify and hold the Indenture Trustee and the Paying Agent harmless against all claims or liability of any


 



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kind arising in connection with or related to the Indenture Trustee’s and the Paying Agent’s reliance upon, any documents, forms or information provided by any Noteholder or its transferee to the Issuing Entity, the Indenture Trustee or the Paying Agent pursuant to this Section 2.09.


 


Section 2.10                      Intentionally Omitted


 


Section 2.11                      Book-Entry Notes.


 


(a)           Generally.  Each Note, upon original issuance, shall be issued in the form of a typewritten Note or Notes representing the Book-Entry Notes, which shall be deposited on behalf of the purchasers of the Notes represented by such Book-Entry Note with the Depository or the Indenture Trustee, as custodian for the Depository, and registered on the Register in the name of the Depository or a nominee thereof (initially, such nominee to be Cede & Co.).  No Owner shall receive a Definitive Note representing such Owner’s interest in such Notes, except as provided in Section 2.13. Unless and until Definitive Notes with respect to such Notes have been issued to such Owners pursuant to Section 2.13, with respect to such Notes:


 


(i)           the provisions of this Section 2.11 shall be in full force and effect;


 


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


 


(iii)           to the extent that the provisions of this Section 2.11 conflict with any other provisions of this Indenture, the provisions of this Section 2.11 shall control;


 


(iv)           the rights of the Owners shall be exercised only through the Depository and shall be limited to those established by law and agreements between such Owners and the Depository and/or the Depository Participants, and unless and until Definitive Notes are issued pursuant to Section 2.13, the initial Depository shall make book-entry transfers between the Depository Participants and receive and transmit payments of principal of and interest on such Notes to such Depository Participants, pursuant to the Depository Agreement; and


 


(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 Note Balance, the Depository shall be deemed to represent such percentage only to the extent that it has (x) received written instructions to such effect from Owners and/or Depository Participants owning or representing, respectively, such required percentage of the beneficial interest in the Notes and (y) has delivered such instructions to the Indenture Trustee.


 



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Section 2.12                      Notices to Depository.  With respect to any Notes issued as Book-Entry Notes, whenever a notice or other communication to the Noteholders is required under this Indenture, unless and until Definitive Notes representing such Notes shall have been issued to the related Owners pursuant to Section 2.13, the Indenture Trustee shall give all such notices and communications specified herein to be given to the related Noteholders to the Depository and shall have no obligation to such Owners.


 


Section 2.13                      Definitive Notes.  Except as provided in Section 2.04, if for any Notes issued as Book-Entry Notes (a) the Administrator advises the Indenture Trustee in writing that the Depository is no longer willing or able to properly discharge its responsibilities with respect to such Notes and the Issuing Entity is unable to locate a qualified successor; or (b) after the occurrence of an Event of Default or a Servicer Replacement Event, Owners representing beneficial interests aggregating at least a majority of the outstanding Note Balance advise the Depository in writing that the continuation of a book-entry system through the Depository is no longer in the best interests of such Owners, then the Depository shall notify all Owners and the Indenture Trustee in writing of the occurrence of any such event and of the availability of Definitive Notes to such Owners requesting the same. Upon surrender to the Indenture Trustee of the typewritten Notes or Notes representing such Book-Entry Notes by the Depository, accompanied by registration instructions, the Issuing Entity shall execute and the Indenture Trustee shall authenticate the related Definitive Notes in accordance with the instructions of the Depository. None of the Issuing Entity, the Administrator, the Registrar or the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be fully protected in relying on, such instructions. Upon the issuance of such Definitive Notes, the Indenture Trustee shall recognize the Holders of such Definitive Notes as Noteholders. The Indenture Trustee shall not be liable if the Administrator or the Indenture Trustee is unable to locate a qualified successor Depository.


 


Section 2.14                      Depositor as Noteholder.  The Depositor in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuing Entity or its affiliates with the same rights it would have if it were not the Depositor.


 


Section 2.15                      Reserved.


 


Section 2.16                      ERISA.  The Class A Notes, the Class B Notes, the Class C Notes and the Class D Notes may not be purchased by or transferred to a Benefit Plan Investor or any governmental, non-U.S. or church plan subject to any Similar Law unless the acquisition and holding of such Note will not give rise to a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code or a non-exempt violation of any Similar Law.


 


Section 2.17                      Legending of the Notes.


 


(a)           Except as permitted by the following paragraph (b):


 


(i)           each Note shall bear legend in substantially the following form (such legend, the “Note Legend”):


 


(1)           BY ITS ACQUISITION HEREOF OR A BENEFICIAL INTEREST HEREIN, THE HOLDER REPRESENTS AND


 



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WARRANTS THAT EITHER (A) IT IS NOT (AND FOR SO LONG AS IT HOLDS THIS NOTE OR INTEREST THEREIN WILL NOT BE) AND IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE ACTING ON BEHALF OF) (I) AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), WHICH IS SUBJECT TO TITLE I OF ERISA, (II) A “PLAN” AS DEFINED IN SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO SECTION 4975 OF THE CODE, (III) AN ENTITY DEEMED TO HOLD “PLAN ASSETS” OF ANY OF THE FOREGOING BY REASON OF INVESTMENT BY AN EMPLOYEE BENEFIT PLAN OR PLAN IN SUCH ENTITY, OR (IV) A GOVERNMENTAL, NON-U.S. OR CHURCH PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE, LOCAL OR NON-U.S. LAW THAT IS SUBSTANTIALLY SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (ANY SUCH FEDERAL, STATE, LOCAL OR NON-U.S. LAW, A “SIMILAR LAW”) OR (B) THE ACQUISITION, HOLDING AND DISPOSITION OF THE NOTES WILL NOT GIVE RISE TO A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NON-EXEMPT VIOLATION OF ANY SIMILAR LAW;


 


(2) UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE INDENTURE TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”


 


(3)           AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.


 


ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB


 



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INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUING ENTITY, THE INDENTURE TRUSTEE OR ANY INTERMEDIARY. EACH TRANSFEROR OF THIS NOTE AGREES TO PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS SET FORTH HEREIN AND IN THE INDENTURE TO THE TRANSFEREE. IN ADDITION TO THE FOREGOING, THE ISSUING ENTITY MAINTAINS THE RIGHT TO RESELL ANY INTEREST IN THIS NOTE PREVIOUSLY TRANSFERRED TO AN IMPERMISSIBLE HOLDER IN ACCORDANCE WITH AND SUBJECT TO THE TERMS OF THE INDENTURE.”


 







 


[End of Article II]


 



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ARTICLE III


COVENANTS


Section 3.01                      Payment of Principal and Interest.  The Issuing Entity will duly and punctually pay the principal of and interest, if any, on the Notes, and all other amounts owing hereunder or in respect of the Notes, in accordance with the terms of the Notes, this Indenture and the Sale and Servicing Agreement.  Without limiting the foregoing, subject to Section 8.02(c), on each Payment Date the Issuing Entity shall cause all amounts deposited pursuant to the Sale and Servicing Agreement for the benefit of the Notes to be paid to the Noteholders.


 


Section 3.02                      Maintenance of Office or Agency.  The Issuing Entity will maintain in the Borough of Manhattan, The City of New York, an office or agency where Notes may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Issuing Entity in respect of the Notes and this Indenture may be served.  Such office will initially be located at the Corporate Trust Office.  Definitive Notes may be surrendered for registration of transfer or exchange at the address set forth for such purposes in the definition of Corporate Trust Office herein.  The Issuing Entity will give prompt written notice to the Indenture Trustee of the location, and of any change in the location, of any such office or agency.  If at any time the Issuing Entity shall fail to maintain any such office or agency or shall fail to furnish the Indenture Trustee with the address thereof, such surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Issuing Entity hereby appoints the Indenture Trustee as its agent to receive all such surrenders, notices and demands.


 


Section 3.03                      Money for Payments to Be Held in Trust.  All payments of amounts due and payable with respect to any Notes that are to be made from amounts withdrawn from the Collection Account, the Principal Distribution Account and the Reserve Account shall be made on behalf of the Issuing Entity by the Indenture Trustee or by another Paying Agent, and no amounts so withdrawn from the Collection Account, the Principal Distribution Account or the Reserve Account for payments of Notes shall be paid over to the Issuing Entity except as provided in this Section 3.03.


 


On or before the Business Day preceding each Payment Date and the Redemption Date, the Issuing Entity shall deposit or cause to be deposited in the Collection Account and the Principal Distribution Account an aggregate sum sufficient to pay the amounts then becoming due under the Notes, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless the Paying Agent is the Indenture Trustee) shall promptly notify the Indenture Trustee, in writing, of its action or failure so to act.


 


The Issuing Entity will cause each Paying Agent other than the Indenture Trustee to execute and deliver to the Indenture Trustee an instrument in which such Paying Agent shall agree with the Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of this Section 3.03, that such Paying Agent will:


 


(i)           hold all sums held by it for the payment of amounts due with respect to the Notes in trust for the benefit of the Persons entitled thereto until


 



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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 Issuing Entity (or any other obligor on the Notes) of which it has actual knowledge in the making of any payment required to be made with respect to the Notes;


 


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


 


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


 


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


 


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


 


Subject to applicable laws with respect to escheat of funds, any money held by the Indenture Trustee or any Paying Agent in trust for the payment of any amount due with respect to any Note and remaining unclaimed for two years after such amount has become due and payable shall be discharged from such trust and be paid upon Issuing Entity Request to the Issuing Entity; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuing Entity for payment thereof (but only to the extent of the amounts so paid to the Issuing Entity), and all liability of the Indenture Trustee or such Paying Agent with respect to such trust money shall thereupon cease; provided, however, that the Indenture Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense and written direction of the Issuing Entity cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than thirty (30) days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuing Entity.  The Indenture Trustee shall also adopt and employ, at the expense and written direction of the Issuing Entity, any other reasonable means of notification of such repayment (including, but not limited to, mailing notice of such repayment to Holders whose Notes have been called but have not been


 



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surrendered for redemption or whose right to or interest in moneys due and payable but not claimed is determinable from the records of the Indenture Trustee or of any Paying Agent, at the last address of record for each such Holder).


 


Section 3.04                      Existence.  The Issuing Entity will keep in full effect its existence, rights and franchises as a statutory trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture, the Notes and the Collateral, and will not dissolve or liquidate in whole or in part.


 


Section 3.05                      Protection of Collateral; Manner of Perfection.


 


(a)           The Issuing Entity will from time to time execute, deliver and file all such supplements and amendments hereto and (subject to clause (b) below) all such UCC financing statements, continuation statements, instruments of further assurance and other instruments, and will take such other action necessary or advisable to:


 


(i)           maintain or preserve the lien and security interest (and the first priority thereof) of this Indenture or carry out more effectively the purposes hereof;


 


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


 


(iii)           enforce the Indenture Trustee’s rights in any of the Collateral; or


 


(iv)           preserve and defend title to the Collateral and the rights of the Indenture Trustee and the Noteholders in such Collateral against the claims of all persons and parties.


 


(b)           The Issuing Entity hereby designates the Indenture Trustee, as its agent and attorney-in-fact, to execute any UCC financing statement, continuation statement or other instrument required to be executed pursuant to this Section 3.05; provided, however, that the Issuing Entity will have the primary responsibility for taking such actions.


 


(c)           The Issuing Entity hereby represents and warrants that, as to the Collateral pledged to the Indenture Trustee for the benefit of the Noteholders, on the Closing Date:


 


(i)           the Indenture creates a valid and continuing security interest (as defined in the applicable UCC) in the Collateral that is in existence in favor of the Indenture Trustee, which security interest is prior to all other liens, and is enforceable as such as against creditors of and purchasers from the Issuing Entity;


 


(ii)           the Loans constitute “tangible chattel paper” under the applicable UCC;


 



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(iii)           the Issuing Entity owns and has good and marketable title to such Collateral free and clear of any liens, claims or encumbrances of any Person, other than the interest Granted under this Indenture;


 


(iv)           the Issuing Entity has acquired its ownership in such Collateral in good faith without notice of any adverse claim;


 


(v)           the Trust Accounts are not in the name of any person other than the Indenture Trustee and the Issuing Entity has not consented to the bank maintaining the Trust Accounts to comply with the instructions of any person other than the Indenture Trustee;


 


(vi)           the Issuing Entity has not assigned, pledged, sold, granted a security interest in or otherwise conveyed any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests Granted pursuant to this Indenture;


 


(vii)           the Issuing Entity has caused or will have caused, within ten days after the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdiction under the applicable law in order to perfect the security interest Granted hereunder in the Loans;


 


(viii)           other than its Granting hereunder, the Issuing Entity has not Granted such Collateral, the Issuing Entity has not authorized the filing of and is not aware of any financing statements against the Issuing Entity that include a description of such Collateral other than the financing statement in favor of the Indenture Trustee, and the Issuing Entity is not aware of any judgment or tax lien filing against it;


 


(ix)           the information relating to such Collateral set forth in the Schedule of Loans (attached as Schedule I to the Asset Purchase Agreement) is correct;


 


(x)           the Issuing Entity has in its possession all original copies of the loan agreements that constitute or evidence the Collateral.  The instruments and/or chattel paper that constitute or evidence the Collateral do not have any marks or notations indicating that they have been pledged, assigned, or otherwise conveyed to any Person other than the Indenture Trustee. All financing statements filed or to be filed against the Issuing Entity in favor of the Indenture Trustee in connection herewith describing the Collateral contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Indenture Trustee.”


 


(d)           All financing statements filed or to be filed against the Issuing Entity in favor of the Indenture Trustee in connection with this Indenture describing the Collateral shall contain a statement to the following effect: “A purchase of, or a security interest in, any of the collateral covered by this financing statement will violate the rights of the secured party.”


 


Section 3.06                      Opinions as to Collateral.


 



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(a)           On the Closing Date, the Issuing Entity shall cause to be furnished 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, any indentures supplemental hereto, and any other requisite documents, and with respect to the execution and filing of any UCC financing statements and continuation statements, as are necessary to perfect and make effective the lien and security interest of this Indenture and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.


 


(b)           On or before June 30th, in each calendar year, beginning in 2012, the Issuing Entity shall furnish to the Indenture Trustee and the Rating Agencies an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and with respect to the execution and filing of any UCC financing statements and continuation statements as is necessary to maintain the lien and security interest created by this Indenture, the Sale and Servicing Agreement and the Asset Purchase Agreement and reciting the details of such action, or stating that in the opinion of such counsel no such action is necessary to maintain such lien and security interest.  Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and the execution and filing of any UCC financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Indenture, the Sale and Servicing Agreement and the Asset Purchase Agreement and the priority thereof until June 30th in the following calendar year.


 


Section 3.07                      Performance of Obligations; Servicing of Loans.


 


(a)           The Issuing Entity will not take any action and will use its reasonable 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 Collateral or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in this Indenture or the Sale and Servicing Agreement.


 


(b)           The Issuing Entity may contract with other Persons acceptable to the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class and with notification to the Rating Agencies to assist it in performing its duties under this Indenture, and any performance of such duties by a Person identified to the Indenture Trustee in an Officer’s Certificate of the Issuing Entity shall be deemed to be action taken by the Issuing Entity, provided that any delegation shall not release the Issuing Entity from its obligations hereunder and under the Notes.  Initially, the Issuing Entity has contracted with the Servicer and the Administrator to assist the Issuing Entity in performing its duties under this Indenture.


 



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(c)           The Issuing Entity will punctually perform and observe all of its obligations and agreements contained in this Indenture, the Basic Documents, and in the instruments and agreements included in the Collateral, and shall enforce its rights thereunder and the obligations of the other Persons parties thereto, including, but not limited to, filing or causing to be filed all UCC financing statements and continuation statements required to be filed by the terms of this Indenture and the Sale and Servicing Agreement in accordance with and within the time periods provided for herein and therein.  The Issuing Entity and the Indenture Trustee shall not waive, amend, modify, supplement or terminate, or grant any consent with respect to any Basic Document or any provision thereof without the consent of the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class.  If a Servicer Replacement 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 Loans, the Issuing Entity shall take all reasonable steps available to it to remedy such failure.


 


(d)           If the Issuing Entity shall have knowledge of the occurrence of a Servicer Replacement Event or of any other breach by a Person under any Basic Document, the Issuing Entity shall promptly notify the Indenture Trustee, the Noteholders and the Rating Agencies thereof, and shall specify in such notice the action, if any, that the Issuing Entity is taking with respect to such default.


 


(e)           Upon any termination of the Servicer’s rights and powers pursuant to the Sale and Servicing Agreement, the Issuing Entity shall promptly notify the Indenture Trustee thereof and the Noteholders.  As soon as a successor servicer (a “Successor Servicer”) is appointed, the Issuing Entity shall notify the Indenture Trustee and the Noteholders in writing of such appointment, specifying in such notice the name and address of such Successor Servicer.


 


(f)           Without limitation of the absolute nature of the assignment granted to the Indenture Trustee under this Indenture or the rights of the Indenture Trustee hereunder, the Issuing Entity hereby agrees (i) that it will not, without the prior written consent of the Indenture Trustee acting at the written direction of the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class, amend, modify, waive, supplement, terminate or surrender, or agree to any amendment, modification, supplement, termination, waiver or surrender of, the terms of any Collateral or the Basic Documents, or waive timely performance or observance by the Servicer or the Depositor under the Sale and Servicing Agreement; and (ii) that any such amendment shall not (A) increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections on payments on the Collateral or distributions that are required to be made for the benefit of the Noteholders or (B) reduce the aforesaid percentage of the Notes that is required to consent to any such amendment, without the consent of the Holders of all Notes.  If the Indenture Trustee acting at the written direction of such Holders agrees to any such amendment, modification, supplement or waiver, the Indenture Trustee agrees, promptly following a request by the Issuing Entity to do so, to execute and deliver, at the Issuing Entity’s own expense, such agreements, instruments, consents and other documents as the Issuing Entity may deem necessary or appropriate in the circumstances.


 



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Section 3.08                      Negative Covenants.  So long as any Notes are outstanding, the Issuing Entity shall not, in addition to the covenants set forth in Section 2.3 of the Trust Agreement:


 


(a)           except as expressly permitted by this Indenture, the Asset Purchase Agreement, the Trust Agreement, the Administration Agreement or the Sale and Servicing Agreement, sell, transfer, exchange or otherwise dispose of any of the properties or assets of the Issuing Entity, including those included in the Collateral;


 


(b)           engage in any activities other than financing, acquiring, owning, pledging and managing the Loans and the other Collateral as contemplated by this Indenture and the other Basic Documents;


 


(c)           claim any credit on, or make any deduction from the principal or interest payable in respect of, the Notes (other than amounts properly withheld from such payments under the Code or applicable state law) 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 Collateral;


 


(d)           (i) permit the validity or effectiveness of this Indenture to be impaired or permit any Person to be released from any covenants or obligations with respect to the Notes under this Indenture except as may be expressly permitted hereby, (ii) permit any lien, charge, excise, claim, security interest, mortgage or other encumbrance (other than the lien of this Indenture) to be created on or extend to or otherwise arise upon or burden the Collateral 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 any of the Financed Vehicles and arising solely as a result of an action or omission of the related Loan Obligor), (iii) permit the lien of this Indenture not to constitute a valid first priority (other than with respect to any such tax, mechanics’ or other lien) security interest in the Collateral, (iv) dissolve or liquidate in whole or in part or (v) merge or consolidate with, or transfer substantially all of its assets to, any other Person; or


 


(e)           take any action that, for federal, state or local income, single business and franchise tax purposes, (i) would cause the Notes to fail to be treated as debt or (ii) would cause the Issuing Entity to be treated as an association (or publicly-traded partnership) taxable as a corporation.


 


Section 3.09                      Annual Statement as to Compliance.    (a) The Issuing Entity shall deliver to the Indenture Trustee and the Rating Agencies on or before March 31st of each calendar year beginning with March 31st, 2013 Officer’s Certificate stating, as to the Authorized Officer signing such Officer’s Certificate, that:


 


(i)           a review of the activities of the Issuing Entity during such year (or since the Closing Date, in case of the first such Officer’s Certificate) and of its performance under this Indenture has been made under such Authorized Officer’s supervision; and


 



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


 


(b)             The Issuing Entity shall:


 


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


 


(ii)           supply to the Indenture Trustee and file with the Commission in accordance with rules and regulations prescribed from time to time by the Commission such other information, documents and reports with respect to compliance by the Issuing Entity 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 make available for review by all Noteholders as required by TIA Section 313(c)) such summaries of any information, documents and reports required to be filed by the Issuing Entity pursuant to clauses (i) and (ii) of this Section 3.9(b) as may be required pursuant to rules and regulations prescribed from time to time by the Commission.


 


(c)           Delivery of such reports, information and documents to the Indenture Trustee is for informational purposes only and the Indenture Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuing Entity’s compliance with any of its covenants hereunder (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).


 


(d)             Unless the Issuing Entity otherwise determines, the fiscal year of the Issuing Entity shall be the same as the fiscal year of the Servicer (which shall end on December 31st of each year).


 


Section 3.10                      Issuing Entity May Not Merge or Consolidate.  The Issuing Entity shall not consolidate or merge with or into any other Person.  The Issuing Entity shall not convey or transfer any of its properties or assets, including the Collateral, to any person.


 


Section 3.11                      No Other Business.  The Issuing Entity shall not engage in any business other than financing, purchasing, owning, selling and managing the Loans in the manner contemplated by this Indenture and the Basic Documents and engaging in any activities


 



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incidental thereto.  The Issuing Entity shall not fund the purchase of any receivables other than the Loans.


 


Section 3.12                      No Borrowing.  The Issuing Entity shall not issue, incur, assume, guarantee or otherwise become liable, directly or indirectly, for any indebtedness, or incur any other obligations or liabilities, except for the Notes.


 


Section 3.13                      Servicer’s Obligations.  The Issuing Entity shall cause the Servicer to comply with its obligations under the Sale and Servicing Agreement.


 


Section 3.14                      Guarantees, Loans, Advances and Other Liabilities.  Except as contemplated by the Trust Agreement, the Sale and Servicing Agreement or this Indenture, the Issuing Entity shall not make any loan or advance or credit to, or guarantee (directly or indirectly or by an instrument having the effect of assuring another’s payment or performance on any obligation or capability of so doing or otherwise), endorse or otherwise become contingently liable, directly or indirectly, in connection with the obligations, stocks or dividends of, or own, purchase, repurchase or acquire (or agree contingently to do so) any stock, obligations, assets or securities of, or any other interest in, or make any capital contribution to, any Person.


 


Section 3.15                      Capital Expenditures.  The Issuing Entity shall not make any expenditure (by long-term or operating lease or otherwise) for capital assets (whether consisting of realty or personalty).


 


Section 3.16                      Removal of Administrator.  So long as any Notes are outstanding, the Issuing Entity shall not remove the Administrator unless the Rating Agency Condition shall have been satisfied in connection with such removal and the Indenture Trustee and the Noteholders shall have received written notice of the foregoing and shall have consented thereto.


 


Section 3.17                      Restricted Payments.  The Issuing Entity 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 Issuing Entity or otherwise with respect to any ownership or equity interest or security in or of the Issuing Entity or to the Servicer, (ii) redeem, purchase, retire or otherwise acquire for value any such ownership or equity interest or security or (iii) set aside or otherwise segregate any amount for any such purpose; provided, however, that the Issuing Entity may make, or cause to be made, distributions as contemplated by, and to the extent funds are available for such purpose under, the Sale and Servicing Agreement, this Indenture or the Trust Agreement.  The Issuing Entity will not, directly or indirectly, make payments to or distributions from the Trust Accounts except in accordance with this Indenture, the Sale and Servicing Agreement and the other Basic Documents.


 


Section 3.18                      Notice of Events of Default.  The Issuing Entity shall give the Indenture Trustee and the Rating Agencies prompt written notice of each Event of Default hereunder.


 


Section 3.19                      Further Instruments and Acts.  Upon request of the Indenture Trustee, the Issuing Entity will execute and deliver such further instruments and do such further


 



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acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture.


 


[End of Article III]


 




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ARTICLE IV




SATISFACTION AND DISCHARGE


 


Section 4.01                      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 of outstanding Notes, (ii) substitution of mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments of principal thereof and interest thereon and all other amounts with respect thereto (iv) Section 3.03, 3.04, 3.05, 3.07, 3.08, 3.10, 3.11, 3.12, 3.13, 3.14, 3.15, 3.17 and 6.07, (v) the rights, obligations and immunities of the Indenture Trustee hereunder (including the rights of the Indenture Trustee under Section 6.07 and the obligations of the Indenture Trustee under Section 4.03) and (vi) the rights of Noteholders as beneficiaries hereof with respect to the property so deposited with the Indenture Trustee payable to all or any of them, and the Indenture Trustee, on demand of and at the expense of the Issuing Entity, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Notes, when all Notes theretofore authenticated and delivered (other than Notes that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.05) have been discharged and Paid In Full.


 


Section 4.02                      Application of Trust Money.  All moneys deposited with the Indenture Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent, as the Indenture Trustee may determine, to the Holders of the particular Notes for the payment or redemption of which such moneys have been deposited with the Indenture Trustee, of all sums due and to become due thereon for principal and interest; but such moneys 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 4.03                      Repayment of Moneys Held by Paying Agent.  In connection with the satisfaction and discharge of this Indenture with respect to the Notes, all moneys then held by any Paying Agent other than the Indenture Trustee under the provisions of this Indenture with respect to such Notes shall, upon written demand of the Issuing Entity or the Indenture Trustee, be paid to the Indenture Trustee to be held and applied according to Section 3.03; and thereupon, such Paying Agent shall be released from all further liability with respect to such moneys.


 


Section 4.04                      Release of Collateral.  Subject to Section 11.01 and the terms of the Basic Documents, the Indenture Trustee shall release property from the lien of this Indenture only when the Notes shall have been Paid In Full.


 


[End of Article IV]


 




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ARTICLE V




REMEDIES


 


Section 5.01                      Events of Default.  “Event of Default”, wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):


 


(a)           default in the payment of any interest on any Note of the Controlling Class when the same becomes due and payable, and such default shall continue for a period of two (2) Business Days; provided, however, that if the Servicer has made a deposit of Interest Collections and Principal Collections to the Collection Account in accordance with Section 5.02 of the Sale and Servicing Agreement and such amounts are sufficient to pay the accrued and unpaid interest hereunder and has timely delivered instructions to the Indenture Trustee for the application of such funds as provided in Section 5.06(a) of the Sale and Servicing Agreement and such failure to pay interest is owing to circumstances caused by the Indenture Trustee, such payment default shall be an Event of Default if it continues for a period of five (5) days (in lieu of the two (2) Business Day period referred to above in this paragraph);


 


(b)           default in the payment of the principal of any Note when the same becomes due and payable at the related Final Scheduled Payment Date or the Redemption Date;


 


(c)           any failure by the Issuing Entity to duly observe or perform its covenants under Sections 3.04, 3.08(a), 3.08(d), 3.10, 3.11, 3.12, 3.13, 3.14, 3.15, 3.16, 3.17, and 3.18;


 


(d)           any failure by the Issuing Entity to duly observe or perform any of its other covenants or agreements or any of its representations and warranties in this Indenture (other than the ones specified above in clauses (a) through (c)), which failure continues unremedied a period of thirty (30) days; or


 


(e)           the occurrence of an Insolvency Event with respect to the Issuing Entity.


 


The Issuing Entity shall promptly (but in any event not later than five (5) Business Days) deliver to the Indenture Trustee written notice in the form of an Officer’s Certificate of any event that with the giving of notice and the lapse of time would become an Event of Default under clauses (c) and (d) above, its status and what action the Issuing Entity is taking or proposes to take with respect thereto.


 


Section 5.02                      Acceleration of Maturity; Rescission and Annulment.


 


(a)           If an Event of Default under this Indenture shall have occurred and be continuing (other than an Event of Default specified in clause (e) of Section 5.01), the Indenture Trustee in its discretion may, or if so requested in writing by the Noteholders


 



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representing a majority of the outstanding Note Balance of the Controlling Class, shall, declare by written notice to the Issuing Entity all of the Notes to be immediately due and payable, and upon any such declaration (but subject to clause (b) below) the entire outstanding Note Balance, together with accrued interest thereon through the date of acceleration, shall become immediately due and payable as provided in the Notes.  If an Event of Default specified in clause (e) of Section 5.01 shall have occurred and be continuing, the Notes shall automatically become immediately due and payable without any further action on the part of any Person.


 


(b)           At any time after declaration of acceleration of maturity has been made pursuant to clause (a) above and before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as provided hereinafter in this Article V, the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class may, by written notice to the Issuing Entity and the Indenture Trustee, rescind such declaration and annul such consequences if:


 


(i)           the Issuing Entity has paid or deposited with the Indenture Trustee a sum sufficient to pay:


 


(A)           all payments of principal of and interest on all Notes and all other amounts that would then be due hereunder or upon such Notes if the Event of Default giving rise to such acceleration had not occurred; and


 


(B)           all sums paid by the Indenture Trustee hereunder and the reasonable compensation, expenses and disbursements of the Indenture Trustee and its agents and counsel and the reasonable compensation, expenses and disbursements of the Owner Trustee and its agents and counsel.


 


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


 


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


 


Section 5.03                      Collection of Indebtedness and Suits for Enforcement by Indenture Trustee; Authority of the Controlling Class.


 


(a)           The Issuing Entity covenants that if (i) a default is made in the payment of any interest on any Note when the same becomes due and payable, and such default continues for a period of five (5) days, or (ii) default is made in the payment of the principal of or any installment of the principal of any Note when the same becomes due and payable, the Issuing Entity will, upon demand of the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class, pay to the Indenture Trustee, for the benefit of the Noteholders, the entire amount then due and payable on such Notes in respect of principal and interest, with interest on the overdue principal and, to the extent payment at such rate of interest shall be legally enforceable, on overdue


 



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installments of interest at the rate then applicable to the Notes and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses and disbursements of the Indenture Trustee and its agents and counsel.


 


(b)           In case the Issuing Entity shall fail forthwith to pay such amounts upon such demand or if any such amounts became due and payable automatically pursuant to the terms of Section 5.02(a), the Indenture Trustee, in its own name and as trustee of an express trust, may (and at the written direction of the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class shall) institute a Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to judgment or final decree, and may enforce the same against the Issuing Entity or other obligor on such Notes and collect in the manner provided by law out of the Collateral or the property of any other obligor on such Notes, wherever situated, the moneys adjudged or decreed to be payable.


 


(c)           If an Event of Default occurs, the Indenture Trustee may, as more particularly provided in Section 5.04, in its discretion, or shall, at the written direction of the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class, proceed to protect and enforce its rights and the rights of the Noteholders, by such appropriate Proceedings as the Indenture Trustee or the Indenture Trustee at the written direction of the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class shall reasonably deem most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy or legal or equitable right vested in the Indenture Trustee by this Indenture or by law.


 


(d)           In case there shall be pending, relative to the Issuing Entity or any other obligor on the Notes or any Person having or claiming an ownership interest in the Collateral, 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, or liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuing Entity or its property or Huntington or its property or such other obligor or Person, or in case of any other comparable Proceedings relative to the Issuing Entity or other obligor on the Notes or Huntington, or to the creditors or property of the Issuing Entity or such other obligor or Huntington, the Indenture Trustee, irrespective of whether the principal of any Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture Trustee shall have made any demand pursuant to the provisions of this Section 5.03, shall be entitled and empowered (and at the written direction of the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class shall), by intervention in such Proceedings or otherwise:


 


(i)           to file and prove a claim or claims for the entire amount of principal and interest owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary or advisable in order to have the


 



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claims of the Indenture Trustee (including any claim for reasonable compensation to the Indenture Trustee and each predecessor Indenture Trustee, and their respective agents, attorneys and counsel, and for reimbursement of reasonable out-of-pocket expenses and liabilities incurred, by the Indenture Trustee and each predecessor Indenture Trustee, except as a result of negligence or bad faith) and of the Noteholders allowed in such Proceedings;


 


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


 


(iii)           to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute all amounts received with respect to the claims of the Noteholders 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 Noteholders allowed in any Proceedings relative to the Issuing Entity, its creditors or its property;


 


and any trustee, receiver, liquidator, custodian or other similar official in any such Proceeding is hereby authorized by each of such Noteholders to make payments to the  Indenture Trustee for application in accordance with Section 5.03 of the Sale and Servicing Agreement and, in the event that the Indenture Trustee shall consent to the making of payments directly to such Noteholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred by the Indenture Trustee and each predecessor Indenture Trustee except as a result of negligence or bad faith.


 


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


 


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


 



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(g)           In any Proceedings brought by the Indenture Trustee (and also any Proceedings involving the interpretation of any provision of this Indenture to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all of the Holders of the Notes, and it shall not be necessary to make any Noteholder a party to any such Proceedings.


 


Section 5.04                      Remedies; Priorities.


 


(a)           If an Event of Default shall have occurred and be continuing, the Indenture Trustee may, and at the written direction of the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class shall, do one or more of the following (subject to Section 5.05):


 


(i)           institute Proceedings in its own name and as trustee of an express trust for the collection of all amounts then payable on the Notes or under this Indenture with respect thereto, whether by declaration or otherwise, enforce any judgment obtained and collect from the Issuing Entity and any other obligor on such Notes moneys adjudged due;


 


(ii)           institute Proceedings from time to time for the complete or partial foreclosure of this Indenture with respect to the Collateral;


 


(iii)           exercise any remedies of a secured party under the UCC and take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee and the Holders of the Notes; and


 


(iv)           sell the Collateral or any portion thereof or rights or interest therein, at one or more public or private sales called and conducted in any manner permitted by law; provided, however, notwithstanding anything else herein to the contrary, that the Indenture Trustee may not sell or otherwise liquidate the Collateral following an Event of Default, other than an Event of Default described in Section 5.01(a) or (b), unless, (I) the Noteholders representing 100% of the outstanding Note Balance of the Notes voting as a single class consents thereto, or (II) the proceeds of such sale or liquidation distributable to the Noteholders are sufficient to discharge in full all amounts then due and unpaid on such Notes in respect of principal and interest, or (III) the default is a payment default and the Indenture Trustee determines that the Collateral will not continue to provide sufficient funds for the payment of principal of and interest on the Notes as they would have become due if the Notes had not been declared due and payable, and the Indenture Trustee obtains the consent of the Noteholders representing 66 2/3% of the outstanding Note Balance of the Notes voting as a single class; provided, further, that the Depositor or its Affiliates may not participate in such sales as long as any of them is a Noteholder.


 


In determining such sufficiency or insufficiency with respect to clause (II) and (III) above, the Indenture Trustee may, at the Issuing Entity’s expense and paid in the priority set forth in Sections 5.06(a) and (b) of the Sale and Servicing


 



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Agreement, but need not, obtain and conclusively rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the sufficiency of the Collateral for such purpose.


 


(b)           If the Indenture Trustee collects any money or property pursuant to this Article V and the Notes have been accelerated, it shall pay out such money or property (and other amounts, including all amounts held on deposit in the Reserve Account) held as Collateral for the benefit of the Noteholders (net of liquidation costs associated with the sale of the Collateral) in the following order of priority:


 


(i)           first, to the Indenture Trustee and the Owner Trustee, any accrued and unpaid fees, indemnity payments and reasonable expenses permitted under the Basic Documents (other than the Notes and the Assignment);


 


(ii)           second, to the Servicer, the Servicing Fee and all unpaid Servicing Fees with respect to prior Collection Periods;


 


(iii)           third, to the Holders of the Class A Notes, pro rata, the Accrued Class A Note Interest;


 


(iv)           fourth, if (x) the Loans have been sold after an Event of Default has occurred or (y) an Event of Default described in Section 5.01(a), (b) or (e) has occurred, in the following order of priority:


 


(A)           to the Holders of the Class A-1 Notes in respect of principal thereon until the Class A-1 Notes have been Paid in Full;


 


(B)           to the Holders of the Class A-2 Notes, Class A-3 Notes and Class A-4 Notes, in respect of principal thereon, on a pro rata basis, until all the Class A Notes have been Paid in Full;


 


(C)           to the Holders of the Class B Notes, the Accrued Class B Note Interest;


 


(D)           to the Holders of the Class B Notes in respect of principal thereon until the Class B Notes have been Paid in Full;


 


(E)           to the Holders of the Class C Notes, the Accrued Class C Note Interest;


 


(F)           to the Holders of the Class C Notes in respect of principal thereon until the Class C Notes have been Paid in Full;


 


(G)           to the Holders of the Class D Notes, the Accrued Class D Note Interest;


 


(H)           to the Holders of the Class D Notes in respect of principal thereon until the Class D Notes have been Paid in Full;


 



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(v)           fifth, if an Event of Default other than that described in clause (iv) above has occurred and the Loans have not been sold after such Event of Default has occurred, in the following order of priority:


 


(A)           to the Holders of the Class B Notes, the Accrued Class B Note Interest;


 


(B)           to the Holders of the Class C Notes, the Accrued Class C Note Interest;


 


(C)           to the Holders of the Class D Notes, the Accrued Class D Note Interest;


 


(D)           to the Holders of the Class A-1 Notes in respect of principal thereon until the Class A-1 Notes have been Paid in Full;


 


(E)           to the Holders of the Class A-2 Notes, Class A-3 Notes and Class A-4 Notes, in respect of principal thereon, on a pro rata basis, until all the Class A Notes have been Paid in Full;


 


(F)           to the Holders of the Class B Notes in respect of principal thereon until the Class B Notes have been Paid in Full;


 


(G)           to the Holders of the Class C Notes in respect of principal thereon until the Class C Notes have been Paid in Full;


 


(H)           to the Holders of the Class D Notes in respect of principal thereon until the Class D Notes have been Paid in Full; and


 


(vi)           sixth, any remaining funds shall be distributed to the Certificateholder (as defined in the Trust Agreement).


 


(c)           The Indenture Trustee may fix a record date and payment date for any payment to Noteholders pursuant to this Section 5.04.  At least fifteen (15) days before such record date, the Issuing Entity shall mail to each Noteholder and the Indenture Trustee a notice that states the record date, the payment date and the amount to be paid.


 


Section 5.05                      Optional Preservation of the Collateral.  If the Notes have been declared to be due and payable under Section 5.02 following an Event of Default, and such declaration and its consequences have not been rescinded and annulled, the Indenture Trustee may, and if instructed in writing by the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class shall, elect to maintain possession of the Collateral.  It is the desire of the parties hereto and the Noteholders that there be at all times sufficient funds for the payment of principal of and interest on the Notes, and the Indenture Trustee shall take such desire into account when determining whether or not to maintain possession of the Collateral.  In determining whether or not to maintain possession of the Collateral, the Indenture Trustee may, and if instructed in writing by the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class shall, obtain (and may conclusively rely upon) an opinion of an


 



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Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Collateral for such purpose.  Such opinion shall be at the expense of the Issuing Entity and paid in the priority set forth in Section 5.06(b)(i) of the Sale and Servicing Agreement.


 


Section 5.06                      Limitation of Suits.


 


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


 


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


 


(ii)           the Holders of not less than 25% of the outstanding Note Balance 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, provided that for purposes of computing the foregoing percentage, any Notes held by Huntington or any of its Affiliates shall be disregarded;


 


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


 


(iv)           the Indenture Trustee for thirty (30) 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 thirty (30) day period by Controlling Party.


 


(b)           It is understood and intended that no one or more Noteholders 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 Noteholders or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except as set forth herein.


 


(c)           In the event the Indenture Trustee shall receive conflicting or inconsistent requests and indemnity from two or more groups of Noteholders pursuant to this Section 5.06, each representing less than a majority of the outstanding Note Balance of the Notes, the Indenture Trustee shall only act at the written direction of the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class.


 


Section 5.07                      Unconditional Rights of Noteholders to Receive Principal and Interest.  Notwithstanding any other provisions in this Indenture, each Noteholder 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, in the case of redemption, on or after the Redemption Date) and to institute suit for


 



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the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.


 


Section 5.08                      Restoration of Rights and Remedies.  If the Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Indenture Trustee or to such Noteholder, then and in every such case the Issuing Entity, the Indenture Trustee and the Noteholders shall, subject to any determination in such Proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders shall continue as though no such Proceeding had been instituted.


 


Section 5.09                      Rights and Remedies Cumulative.  No right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.


 


Section 5.10                      Delay or Omission Not a Waiver.  No delay or omission of the Indenture Trustee, or any Noteholder 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 or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or the Noteholders, as the case may be.


 


Section 5.11                      Control by Controlling Class.  The Holders of a majority of the outstanding Note Balance of the Controlling Class shall have the right to direct the time, method and place of conducting any Proceeding for any remedy available to the Indenture Trustee with respect to the Notes or this Agreement or exercising any trust or power conferred on the Indenture Trustee hereunder or under the Notes or any other Basic Document; provided, however, that (i) such direction shall not be in conflict with any rule of law or with this Indenture, and (ii) the Indenture Trustee may take any other action reasonably deemed proper by the Indenture Trustee that is not inconsistent with such direction.  Notwithstanding the rights of Noteholders set forth in this Section 5.11, subject to Section 6.01, the Indenture Trustee need not take any action that it reasonably determines might involve it in liability (unless it is offered a reasonable indemnity) or might materially adversely affect the rights of any Noteholders not consenting to such action.


 


Section 5.12                      Waiver of Past Defaults.  Prior to the declaration of the acceleration of the maturity of the Notes as provided in Section 5.02, the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class may waive any past Default or Event of Default and its consequences except a Default (a) in payment of principal of or interest on any of the Notes, (b) in respect of a covenant or provision hereof that cannot be modified or amended without the consent of the Holder of each Note or (c) arising


 



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from an Insolvency Event with respect to the Issuing Entity.  In the case of any such waiver, the Issuing Entity, the Indenture Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other Default or 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 shall be deemed to have been cured and not to have occurred, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereto.


 


Section 5.13                      Undertaking for Costs.  All parties to this Indenture agree, and each Noteholder by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Indenture Trustee for any action taken, suffered or omitted by it as Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.13 shall not apply to (a) any suit instituted by the Indenture Trustee, (b) any suit instituted by any Noteholder, or group of Noteholders, in each case holding in the aggregate more than 50% of the outstanding Note Balance, or (c) any suit instituted by any Noteholder for the enforcement of the payment of principal of or interest on any Note on or after the respective due dates expressed in such Note and in this Indenture (or, in the case of redemption, on or after the Redemption Date).


 


Section 5.14                      Waiver of Stay or Extension Laws.  The Issuing Entity covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuing Entity (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.


 


Section 5.15                      Action on Notes.  The Indenture Trustee’s right to seek and recover judgment on the Notes or under this Indenture shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Indenture.  Neither the lien of this Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee against the Issuing Entity or by the levy of any execution under such judgment upon any portion of the Collateral or upon any of the assets of the Issuing Entity.  Any money or property collected by the Indenture Trustee shall be applied in accordance with Section 5.04(b).


 


Section 5.16                      Performance and Enforcement of Certain Obligations. Promptly following a request from the Indenture Trustee (which request the Indenture Trustee shall make if instructed in writing to do so by the Noteholders representing a majority of the outstanding


 



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Note Balance of the Controlling Class) to do so and at the Administrator’s expense, the Issuing Entity shall take all such lawful action as the Indenture Trustee may request to compel or secure the performance and observance by Huntington of each of their obligations to the Issuing Entity under or in connection with the Basic Documents and to exercise any and all rights, remedies, powers and privileges lawfully available to the Issuing Entity under or in connection with the Basic Documents to the extent and in the manner directed by the Indenture Trustee, including the transmission of notices of default on the part of Huntington thereunder and the institution of legal or administrative actions or proceedings to compel or secure performance by Huntington of its obligations under the Basic Documents; provided, however, that nothing herein shall in any way impose on the Indenture Trustee the duty to monitor the performance of Huntington of any of its liabilities, duties or obligations under any Basic Documents.


 


[End of Article V]


 




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ARTICLE VI




THE INDENTURE TRUSTEE


 


Section 6.01                      Duties of Indenture Trustee.  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 use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.


 


(a)           Except during the continuance of an Event of Default:


 


(i)           the Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Indenture Trustee; and


 


(ii)           in the absence of bad faith or negligence 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 the face value of the certificates, reports, resolutions, documents, orders, opinions or other instruments furnished to the Indenture Trustee and conforming to the requirements of this Indenture; provided, however, that the Indenture Trustee shall not be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument; however, the Indenture Trustee shall examine any officers’ certificate of opinion of counsel issued pursuant to the provisions of this Indenture to determine whether or not they conform to the requirements of this Indenture.  If any such instrument is found not to conform in any material respect to the requirements of this Agreement, the Indenture Trustee shall notify the Noteholders of such instrument in the event that the Indenture Trustee, after so requesting, does not receive a satisfactorily corrected instrument.


 


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


 


(i)           this paragraph does not limit the effect of paragraph (a) of this Section 6.01;


 


(ii)           the Indenture Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved 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 in accordance with the terms of this Indenture or any other Basic Document.


 


(c)           The Indenture Trustee shall not be liable for indebtedness evidenced by or arising under any of the Basic Documents, including principal of or interest on the Notes,


 



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or interest on any money received by it except as the Indenture Trustee may agree in writing with the Issuing Entity.


 


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


 


(e)           No provision of this Indenture shall require the Indenture Trustee to advance, 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 adequate indemnity against such risk or liability is not reasonably assured to it.


 


(f)           Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of this Section 6.01.


 


(g)           Except as provided in Section 8.03 of the Sale and Servicing Agreement, the Indenture Trustee shall not be required to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer or any other party under the Sale and Servicing Agreement.


 


(h)           The Indenture Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Indenture or any agreement referred to herein or any UCC financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance, or (C) 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 Account Property.  The Indenture Trustee shall take all actions as directed in writing by the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class.


 


For purposes of this Section 6.01, the Indenture Trustee, or a Responsible Officer thereof, shall be charged with actual knowledge of any default or an Event of Default if a Responsible Officer actually knows of such default or Event of Default or the Indenture Trustee receives written notice of such default or Event of Default from the Issuing Entity, the Servicer or any Noteholder.  Subject to the foregoing, the Indenture Trustee shall not be required to take notice and in the absence of such actual notice and knowledge, the Indenture Trustee may conclusively assume that there is no such default or Event of Default.


 


Section 6.02                      Rights of Indenture Trustee.   The Indenture Trustee may conclusively rely on the face value of any document reasonably 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.


 


(a)           Before the Indenture Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel from the appropriate party.  The Indenture


 



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Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel from the appropriate party.


 


(b)           The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian or nominee and the Indenture Trustee shall not be responsible for any willful misconduct or gross negligence on the part of any such agent, attorney or custodian reasonably selected  by the Indenture Trustee with due care provided that any such appointment shall not release the Trustee from its obligations and responsibilities hereunder.


 


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


 


(d)           The Indenture Trustee may consult with counsel reasonably selected by it at the Issuing Entity’s expense and paid in the priority set forth in Section 5.06(a) of the Sale and Servicing Agreement, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.


 


(e)           in no event shall the Indenture Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Indenture Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;


 


In the event that the Indenture Trustee is also acting as Paying Agent, Registrar, Securities Intermediary or collateral agent, the rights, privileges, immunities, benefits and protections afforded to the Indenture Trustee, including, without limitation, its right to be indemnified pursuant to this Article VI shall be afforded to such Paying Agent, Registrar, Securities Intermediary, agent, collateral agent, custodian or other Person employed to act hereunder; provided, however, that:


 


(i)           the Indenture Trustee shall be under no obligation to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, pursuant to the provisions of this Indenture, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity satisfactory to it in its reasonable discretion against the costs, expenses and liabilities which may be incurred therein or thereby;


 


(ii)           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;


 



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(iii)           the Indenture Trustee shall not be required to give any bond or surety in respect of the powers granted hereunder; or


 


(iv)           the Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, instrument, opinion, report, notice, request, direction, consent, order, or other paper or document reasonably and in good faith believed by the Trustee to be accurate, but the Indenture Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books and records of the Issuing Entity, personally, or by agent or attorney at the sole cost of the Issuing Entity and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.


 


Section 6.03                      Individual Rights of Indenture Trustee.  Subject to Section 310 of the TIA, its obligations hereunder and under any other Basic Document, the Indenture Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuing Entity or its Affiliates with the same rights it would have if it were not Indenture Trustee.  Subject to its obligations hereunder and under any other Basic Document, the Paying Agent, Registrar, co-registrar or co-paying agent may do the same with like rights.


 


Section 6.04                      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 Collateral or the Notes, it shall not be accountable for the Issuing Entity’s use of the proceeds from the Notes, and it shall not be responsible for any statement of the Issuing Entity in the Indenture, any other Basic Document or in any document issued in connection with the sale of the Notes or in the Notes other than the Indenture Trustee’s certificate of authentication.


 


Section 6.05                      Notice of Defaults.  If a Default occurs and is continuing and if it is actually known to a Responsible Officer of the Indenture Trustee, the Indenture Trustee shall (i) fax to each Noteholder notice of the Default within five (5) Business Days after it occurs and (ii) promptly following such fax, deliver by courier or first class mail to each Noteholder a copy of such notice.


 


Section 6.06                      Reports by Indenture Trustee to Holders.  The Indenture Trustee shall deliver to each Noteholder such information as may be required to enable such holder to prepare its federal and state income tax returns as and to the extent provided in Section 7.05(b) or such other information reasonably requested by any Noteholder.


 


Section 6.07                      Compensation and Indemnity.


 


(a)           The Issuing Entity shall cause the Servicer to pay to the Indenture Trustee from time to time such compensation for its services as shall be agreed in writing.  The Indenture Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Issuing Entity shall cause the Servicer to reimburse the Indenture Trustee for all reasonable out-of-pocket expenses incurred or made by it,


 



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including costs of collection, in addition to the compensation for its services.  Such expenses shall include the reasonable out-of-pocket compensation and expenses, disbursements and advances of the Indenture Trustee’s agents, counsel, accountants and experts.  The Issuing Entity shall cause the Servicer to indemnify the Indenture Trustee (including its officers, directors, employees and agents) against any and all loss, liability, damage, claim or expense (including any reasonable attorneys’ fees) incurred by it in connection with the administration of this trust and the performance of its duties as indenture trustee under the Basic Documents.  The Indenture Trustee shall notify the Issuing Entity and the Servicer promptly of any claim for which it may seek indemnity.  To the extent these fees and indemnification amounts are not paid by the Servicer, they will be paid out of Available Funds as described in the Sale and Servicing Agreement.  Failure by the Indenture Trustee to so notify the Issuing Entity and the Servicer shall not relieve the Issuing Entity or the Servicer of its obligations hereunder if no prejudice to the Issuing Entity or the Servicer shall have resulted from such failure.  The Issuing Entity shall, or shall cause the Servicer to, defend any such claim, and the Indenture Trustee may have separate counsel and the Issuing Entity shall, or shall cause the Servicer to, pay the fees and expenses of such counsel.  Neither the Issuing Entity nor the Servicer need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through or arising from (i) the Indenture Trustee’s own willful misconduct, negligence or bad faith (including such conduct of its officers, directors, employees or agents), (ii) the breach of any of the Indenture Trustee’s representations or warranties hereunder, (iii) the negligence or willful misconduct of the Indenture Trustee in connection with its performance of the duties of successor Servicer under the Sale and Servicing Agreement, or (iv) any taxes fees or other charges on, based on or measure by, any fees, commissions or compensation received by the Indenture Trustee.


 


(b)           When the Indenture Trustee incurs expenses after the occurrence of an Event of Default specified in Section 5.01(e) with respect to the Issuing Entity, such 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.


 


(c)           The provisions of this Section 6.07 shall survive the termination of this Indenture or the resignation or removal of the Indenture Trustee.


 


Section 6.08                      Replacement of Indenture Trustee.


 


(a)           The Indenture Trustee may resign at any time by so notifying the Issuing Entity and each Rating Agency.  The Holders of a majority of the outstanding Note Balance may remove the Indenture Trustee without cause by so notifying the Indenture Trustee and may appoint a successor Indenture Trustee.  The Issuing Entity shall remove the Indenture Trustee if:


 


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


 


(ii)           the Indenture Trustee is adjudged a bankrupt or insolvent;


 



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


 


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


 


(v)           the Indenture Trustee breaches any representation, warranty or covenant made by it under any Basic Document.


 


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 Issuing Entity shall promptly appoint a successor Indenture Trustee, subject to Section 6.11.  No resignation or removal of the Indenture Trustee and no appointment of a successor Indenture Trustee shall become effective until the acceptance of appointment by the successor Indenture Trustee pursuant to this Section 6.08.


 


(b)           A successor Indenture Trustee shall deliver a written acceptance of its appointment to the retiring Indenture Trustee and to the Issuing Entity.  Thereupon the resignation or removal of the retiring Indenture Trustee shall become effective, and the successor Indenture Trustee shall have all of the rights, powers and duties of the Indenture Trustee under this Indenture.  The retiring Indenture Trustee shall be paid all amounts owed to it upon its resignation or removal.  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.  The retiring Indenture Trustee shall not be liable for the acts or omissions of any successor Indenture Trustee.


 


(c)           Subject to the last sentence of clause (a) of this Section 6.08, if a successor Indenture Trustee does not take office within thirty (30) days after the retiring Indenture Trustee resigns or is removed, the retiring Indenture Trustee, the Issuing Entity or the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee.


 


(d)           If the Indenture Trustee fails to comply with Section 6.11, any Noteholder may petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee.


 


(e)           Notwithstanding the replacement of the Indenture Trustee pursuant to this Section 6.08, the Issuing Entity’s and the Administrator’s obligations under Section 6.07 shall continue for the benefit of the retiring Indenture Trustee.


 


Section 6.09                      Successor Indenture Trustee by Merger.  If the Indenture Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Indenture Trustee; provided that such corporation or banking association shall be qualified and eligible under Section 6.11.  The Indenture Trustee shall provide the Rating Agencies and the Noteholders notice of any such transaction.


 



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


 


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


 


(a)           Notwithstanding any other provisions of this Indenture, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any part of the Collateral 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 reasonably selected in good faith to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the trust, and to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders, such title to the Collateral, or any part thereof, and, subject to the other provisions of this Section 6.10, such powers, duties, obligations, rights and trusts as the Indenture Trustee may consider necessary or desirable provided that any such appointment shall not release the Trustee from its obligations and responsibilities hereunder.  Such co-trustee or separate trustee hereunder shall meet the terms of eligibility as a successor trustee under Section 6.11 and notice to Noteholders of the appointment of any co-trustee or separate trustee shall be required under Section 6.08 hereof.


 


(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 Collateral or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Indenture Trustee;


 


(ii)           no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and


 



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


 


(c)           Any notice, request or other writing given to the Indenture Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them.  Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture and the conditions of this Article VI.  Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Indenture Trustee or separately, as may be provided therein, subject to all of the provisions of this Indenture, specifically including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection to, the Indenture Trustee.  Every such instrument shall be filed with the Indenture Trustee.


 


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


 


Section 6.11                      Corporate Indenture Trustee Requirements; Eligibility.  The Indenture Trustee shall at all times satisfy the requirements of TIA Section 310(a).  The Issuing Entity agrees, for the benefit of the Noteholders, that there shall at all times be an indenture trustee hereunder which shall be a bank (within the meaning of Section 2(a)(5) of the 1940 Act) organized and doing business under the laws of the United States or any State thereof, authorized under such laws to exercise corporate trust powers, having aggregate capital, surplus and undivided profits of at least $250,000,000, and subject to supervision or examination by federal or State authority, the long term debt of which is rated not lower than “A” by each Rating Agency.  If such bank published reports of conditions at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 6.11, the combined capital, surplus and undivided profits of such bank shall be deemed to be its combined capital, surplus and undivided profits as set forth in its most recent report of condition so published.  The Indenture Trustee shall in no event be an Affiliate of the Issuing Entity or the Servicer or an Affiliate of any Person involved in the organization or operation of the Issuing Entity or be directly or indirectly controlled by the Issuing Entity.  The Indenture Trustee shall also satisfy the requirements of TIA Section 310(b).  If at any time the Indenture Trustee shall cease to be eligible in accordance with the provisions of this Section 6.11, it shall resign immediately in the manner and with the effect specified in Section 6.08 of this Indenture.


 


In the case of the appointment hereunder of a successor Indenture Trustee with respect to the Notes pursuant to this Section 6.11, (y) the Issuing Entity, the retiring Indenture Trustee and the successor Indenture Trustee shall execute and deliver an indenture supplemental hereto wherein each successor Indenture Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, the successor Indenture Trustee all of the rights, powers, trusts and duties of the retiring


 



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Indenture Trustee with respect to which the appointment of such successor Indenture Trustee relates, (ii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Indenture Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Indenture Trustees co-trustees of the same trust and that each such Indenture Trustee shall be a trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Indenture Trustee; and upon the removal of the retiring Indenture Trustee shall become effective to the extent provided herein, and (iii) shall provide that the successor Indenture Trustee agrees to enter into a new control agreement and such other agreements as are pertinent hereto and (z) the retiring Indenture Trustee shall assign the security interest in the Collateral to the successor Indenture Trustee and executes all instruments and makes all filings that are necessary in order for the successor Indenture Trustee to have a perfected security interest in the Collateral.


 


Section 6.12                      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 and of the other Basic Documents.


 


Section 6.13                      Indenture Trustee as Securities Intermediary.    The Indenture Trustee represents that it is a Securities Intermediary and a “bank” within the meaning of Section 9-102(a)(8) of the UCC.


 


The Indenture Trustee, in its capacity as Securities Intermediary, shall:


 


(i)           treat all Collateral credited to the Accounts as “financial assets” within the meaning of Section 8-102(a)(9) of the UCC to the fullest extent permitted by the UCC;


 


(ii)           indicate by book entry that a financial asset has been credited to the relevant Account, and when receiving a financial asset from the Issuing Entity or acquiring a financial asset for the Issuing Entity, shall accept it for credit to the relevant Account; and


 


(iii)           comply with any “entitlement orders” (within the meaning of Section 8-102(a)(8) of the UCC) originated by the Indenture Trustee with respect to the Accounts without further consent by the Issuing Entity.


 


Section 6.14                      Representations and Warranties.


 


The Indenture Trustee hereby represents that:


 


(a)           the Indenture Trustee is duly organized and validly existing as a banking corporation duly organized in good standing under the laws of the State of New York with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted;


 



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(b)           the Indenture Trustee has the power and authority to execute and deliver this Indenture and to carry out its terms; and the execution, delivery and performance of this Indenture have been duly authorized by the Indenture Trustee by all necessary corporate action;


 


(c)           the consummation of the transactions contemplated by this Indenture and the fulfillment of the terms hereof do not conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under the articles of organization or bylaws of the Indenture Trustee or any agreement or other instrument to which the Indenture Trustee is a party or by which it is bound; and


 


(d)           there are no pending or, to the best of its knowledge, threatened actions or proceedings against the Indenture Trustee before any court, administrative agency or tribunal which, if determined adversely to it, would materially and adversely affect its ability, either in its individual capacity or as Indenture Trustee, as the case may be, to perform its obligations under this Indenture or the Basic Documents.


 


Section 6.15                      Exchange Act Rule 17g-5 Procedures.


 


Prior to an Event of Default, the Indenture Trustee shall not communicate with (including verbal communication) or provide information to any Rating Agency regarding anything related to this Agreement without prior consultation with the Depositor to ensure compliance with Rule 17g-5 under the Securities Exchange Act of 1934 (“Rule 17g-5”). With respect to any document, notice or other information required pursuant to this Agreement to be sent by the Indenture Trustee to any Rating Agency, the Indenture Trustee agrees to provide any such document, notice or other information to the Depositor for posting on its Rule 17g-5 compliant website related to this transaction (the “Rule 17g-5 Website”). The Depositor shall promptly confirm to the Indenture Trustee any such document, notice or other information has been posted to the Rule 17g-5 Website as a condition to the Indenture Trustee providing such document, notice or other information to any Rating Agency or Holder. Notwithstanding anything to the contrary in this Agreement, the Indenture Trustee shall have no obligation to deliver such document, notice or other information to the Rating Agencies until the Indenture Trustee has received written confirmation from the Depositor of the posting of such document, notice or other information by the Depositor to the Rule 17g-5 Website, and the Indenture Trustee shall not be liable for any failure to deliver such document, notice or other information to the Rating Agencies prior to any applicable deadline in this Agreement where such failure is caused by any failure or inability of the Depositor timely to provide such written confirmation.


 


Section 6.16                      Communications Regarding Demands to Repurchase Receivables.


 


The Indenture Trustee shall provide prompt notice to the Issuing Entity, the Loan Seller and the Administrator of all demands communicated to the Indenture Trustee for the repurchase or replacement of any Loan for breach of the representations and warranties concerning such Loan. The Indenture Trustee shall, upon written request of the Issuing Entity, the Loan Seller or the Administrator, provide notification to the Issuing Entity, the Loan Seller and the Administrator with respect to any actions taken by the Indenture Trustee or


 



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determinations made by the Indenture Trustee, in each case with respect to any such demand communicated to the Indenture Trustee in respect of any Loan, such notifications to be provided by the Indenture Trustee as soon as practicable and in any event within five Business Days of such request or such other time frame as may be mutually agreed to by the Indenture Trustee and the Issuing Entity, the Loan Seller and the Administrator, as applicable. Such notices shall be provided to the Issuing Entity, the Loan Seller and the Administrator at related addresses set forth in the Basic Documents to which such party is a signatory or at such other address or by such other means of communication as may be specified by the Issuing Entity, the Loan Seller or the Administrator to the Indenture Trustee from time to time.  The Indenture Trustee and the Issuing Entity acknowledge and agree that the purpose of this Section 6.16 is to facilitate compliance by the Issuing Entity, the Loan Seller and the Administrator with Rule 15Ga-1 under the Exchange Act, as amended, and Items 1104(e) and 1121(c) of Regulation AB (the “Repurchase Rules and Regulations”). The Indenture Trustee acknowledges that interpretations of the requirements of the Repurchase Rules and Regulations may change over time, whether due to interpretive guidance provided by the Commission or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees to comply with reasonable requests made by The Issuing Entity, the Loan Seller or the Administrator in good faith for delivery of information under these provisions on the basis of evolving interpretations of the Repurchase Rules and Regulations. The Indenture Trustee shall cooperate fully with The Issuing Entity, the Loan Seller and the Administrator to deliver any and all records and any other information necessary in the good faith determination of the Issuing Entity, the Loan Seller or the Administrator to permit them to comply with the provisions of Repurchase Rules and Regulations.  In no event shall the Indenture Trustee have any responsibility or liability in connection with any filing required to be made by a securitizer under the Exchange Act or Regulation AB.


 


Section 6.17                      Rule 15Ga-1 Compliance. 


 


 


(a)           To the extent a Responsible Officer of the Servicer or the Indenture Trustee receives a demand for the repurchase or substitution of a Loan based on a breach of a representation or warranty made by the Loan Seller regarding such Loan (each a “Demand”) or information that, in its reasonable determination, could indicate a breach of such a representation or warranty has occurred (“Rule 15Ga-1 Information”), the Servicer and the Indenture Trustee agree to submit such Demand or item of Rule 15Ga-1 Information in writing to the Issuing Entity, the Loan Seller and the Adminstrator as described in Section 6.16(c) hereof; provided, however, that the Servicer shall not be required to submit any Demand or item of Rule 15Ga-1 Information if such information was received from the Indenture Trustee, the Administrator or the Loan Seller, and the Indenture Trustee shall not be required to submit any Demand or item of Rule 15Ga-1 Information if such information was received from the Servicer, the Administrator or the Loan Seller.


 


(b)           In connection with the repurchase or substitution of a Loan pursuant to a Demand or based upon Rule 15Ga-1 Information, any dispute with respect to a Demand or Rule 15Ga-1 Information, or the withdrawal or final rejection of a Demand or Rule 15Ga-1 Information, the Servicer and the Indenture Trustee agree, to the extent a


 



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Responsible Officer of the Servicer or Indenture Trustee, as applicable, has actual knowledge thereof, to notify the Issuing Entity, the Loan Seller and the Administrator in writing, in accordance with Section 6.16(c) hereof; provided, however, that the Servicer shall not be required to submit such notice if such information was received from the Issuing Entity, the Indenture Trustee, the Administrator or the Loan Seller, and the Indenture Trustee shall not be required to submit such notice if such information was received from the Servicer, the Administrator or the Loan Seller.


 


(c)           In order to enable the Loan Seller to meet its reporting obligations under Rule 15Ga-1 of the Exchange Act, the Servicer and the Indenture Trustee shall forward in writing a report substantially in the form of Exhibit B hereto, to the Issuing Entity, the Loan Seller and the Administrator, no later than the 15th day of each month, commencing in April, 2012, as to each Demand or item of Rule 15Ga-1 Information or information as described in Section 6.16(b) hereof received in the previous month; provided, however, that to the extent that there is no Demand or Rule 15Ga-1 Information to report in a given month, the Servicer and the Indenture Trustee shall have no obligation to provide a report.  For purposes of this Section 6.16, any information or report required to be delivered in writing may be delivered via email to the email addresses specified for each party hereto or, in respect of the Indenture Trustee, as specified in the definition of “Corporate Trust Office.” The Loan Seller shall be entitled conclusively to rely on the information provided to it by the Servicer or the Indenture Trustee in accordance with this Section 6.16 in connection with the compilation by the Loan Seller or the Administrator on behalf of the Loan Seller of the information required to be reported on Exchange Act Form ABS-15G.  For the avoidance of doubt, the Loan Seller shall have sole responsibility for compiling the information required to be reported on Exchange Act Form ABS-15G and filing Exchange Act Form ABS-15G as required under Exchange Act Rule 15Ga-1.


 


[End of Article VI]


 




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ARTICLE VII




NOTEHOLDERS’ LISTS AND REPORTS


 


Section 7.01                      Issuing Entity to Furnish Indenture Trustee Names and Addresses of Noteholders.  The Issuing Entity will furnish or cause to be furnished to the Indenture Trustee (a) not more than three (3) days after the earlier of (i) each Record Date and (ii) three months after the last Record Date, a list, in such form as the Indenture Trustee may reasonably require, of the names and addresses of the Noteholders as of such Record Date, and (b) at such other times as the Indenture Trustee may request in writing, within thirty (30) days after receipt by the Issuing Entity of any such request, a list of similar form and content as of a date not more than ten (10) days prior to the time such list is furnished; provided, however, that so long as the Indenture Trustee is the Registrar or the Notes are issued as Book-Entry Notes, no such list shall be required to be furnished.


 


Section 7.02                      Preservation of Information; Communications to Noteholders.


 


(a)           The Indenture Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Noteholders contained in the most recent list furnished to the Indenture Trustee as provided in Section 7.01 and the names and addresses of Noteholders received by the Indenture Trustee in its capacity as the Registrar; provided, however, that so long as the Indenture Trustee is the Registrar or the Notes are issued as Book-Entry Notes, no such list shall be required to be preserved or maintained.


 


(b)           The Noteholders may communicate pursuant to TIA Section 312(b) with other Noteholders with respect to their rights under this Indenture or under the Notes.  Upon receipt by the Indenture Trustee of any request by three or more Noteholders or by one or more Noteholders of Notes evidencing not less than 25% of the Outstanding Note Balance to receive a copy of the current list of Noteholders (whether or not made pursuant to TIA Section 312(b)), the Indenture Trustee shall promptly notify the Administrator thereof by providing to the Administrator a copy of such request and a copy of the list of Noteholders produced in response thereto. The Indenture Trustee may destroy any list furnished to it as provided in such Section 7.01 upon receipt of a new list so furnished.  The Indenture Trustee shall make such list available to the Owner Trustee on written request, and to any Noteholder upon written request of such Noteholder


 


(c)             The Issuing Entity, the Indenture Trustee and Note Registrar shall have the protection of TIA Section 312(c).


 


Section 7.03                      Reports by the Indenture Trustee.


 


If required by TIA Section 313(a), within 60 days after each March 31, beginning with March 31, 2013, the Indenture Trustee shall mail to each Noteholder as required by TIA Section 313(c), a brief report dated as of such date that complies with TIA Section 313(a). The Indenture Trustee also shall comply with TIA Section 313(b).  A copy of each report at the time of its mailing to Noteholders shall be filed by the Indenture Trustee with the Commission and


 



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each stock exchange, if any, on which the Notes are listed.  The Issuing Entity shall notify the Indenture Trustee if and when the Notes are listed on any stock exchange.


 


Section 7.04                      Noteholder Lists.  The Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Noteholders, which list, upon request, will be made available to the Indenture Trustee insofar as the Indenture Trustee is no longer the Registrar.  Upon written request of any Noteholder made for purposes of communicating with other Noteholders with respect to their rights under this Indenture, the Registrar shall promptly furnish such Noteholder with a list of the other Noteholders of record identified in the Registrar at the time of the request.  Every Noteholder, by receiving such access, agrees with the Registrar that the Registrar will not be held accountable in any way by reason of the disclosure of any information as to the names and addresses of any Noteholder regardless of the source from which such information was derived.


 


Section 7.05                      Access to Certain Documentation and Information.


 


(a)           The Indenture Trustee shall provide the Noteholders access to the Basic Documents and servicer reports, such access being afforded without charge but only upon reasonable written request and during normal business hours at offices designated by the Indenture Trustee.


 


(b)           Within sixty (60) days after the end of the calendar year, the Indenture Trustee shall furnish to each Person who at any time during the calendar year was a Holder of a Note a statement containing information regarding payments of principal, interest and other amounts on such Person’s Notes, aggregated for such calendar year or the applicable portion thereof during which such person was a Noteholder.  Such obligation shall be deemed to have been satisfied to the extent that substantially comparable information is provided by the Issuing Entity or the Indenture Trustee pursuant to any requirements of the Code as are from time to time in force.


 


(c)           The Indenture Trustee shall deliver to each Noteholder a copy of each Servicer’s Certificate delivered pursuant to Section 4.09 of the Sale and Servicing Agreement, a copy of each annual compliance statement delivered pursuant to Section 4.10 of the Sale and Servicing Agreement, and a copy of each annual accountant’s report delivered pursuant to Section 4.11 of the Sale and Servicing Agreement.


 







 


[End of Article VII]


 



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ARTICLE VIII




 


ACCOUNTS, DISBURSEMENTS AND RELEASES


 


Section 8.01                      Collection of Money.  Except as otherwise expressly provided herein, the Indenture Trustee may demand payment or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all money and other property payable to or receivable by the Indenture Trustee pursuant to this Indenture and the Sale and Servicing Agreement.  The Indenture Trustee shall apply all such money received by it as provided in this Indenture and the Sale and Servicing Agreement.  Except as otherwise expressly provided in this Indenture, if any default occurs in the making of any payment or performance under any agreement or instrument that is part of the Collateral, the Indenture Trustee may (and at the written direction of the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class 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 8.02                      Trust Accounts; Payment of Principal and Interest.


 


(a)           On or prior to the Closing Date, the Issuing Entity shall cause the Indenture Trustee to establish and maintain the Trust Accounts for the benefit of the Noteholders as provided in Section 5.01 of the Sale and Servicing Agreement.


 


(b)           On the day required by Section 5.02 of the Sale and Servicing Agreement, all Principal Collections and Interest Collections with respect to the preceding Collection Period will be deposited in the Collection Account as provided in Section 5.02 of the Sale and Servicing Agreement.  On each Payment Date, all amounts required to be distributed from the Collection Account and Principal Distribution Account pursuant to Section 5.06 of the Sale and Servicing Agreement will be transferred from such account and distributed in accordance with Section 5.06 of the Sale and Servicing Agreement.


 


(c)           Interest on and principal of each Note shall be payable in accordance with the instruction of the Servicer given to the Indenture Trustee from and to the extent of funds available in accordance with Section 5.06 of the Sale and Servicing Agreement.  The final payment of principal of and interest on each Note (or payment of the Redemption Price thereof in the case of a Note called for redemption pursuant to Article X hereof) shall be payable only upon presentation and surrender thereof at the Corporate Trust Office of the Indenture Trustee or at the office of any Paying Agent.


 


(d)           No interest will accrue with respect to any Note from and after the final Payment Date with respect thereto to the extent that all amounts owing with respect to such Notes were Paid In Full on such Payment Date.


 


(e)           So long as the Indenture Trustee shall be the Paying Agent, the Indenture Trustee shall make payments of principal on the Notes from amounts deposited into the


 



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Principal Distribution Account and shall make payment of interest on the Notes from amounts deposited into the Collection Account; provided, however, that if the Owner Trustee has removed the Indenture Trustee as the Paying Agent, the Indenture Trustee shall distribute such amounts to the Paying Agent as instructed by the Owner Trustee.  If an Event of Default has occurred and the Notes have been accelerated under Section 5.02, then amounts then held in the Collection Account shall be treated by the Indenture Trustee as money or property collected pursuant to Article V of this Indenture and shall be applied as provided in Section 5.04(b) of this Indenture.


 


Section 8.03                      General Provisions Regarding Accounts.  The Indenture Trustee shall not in any way be held liable by reason of any insufficiency in any of the Trust Accounts resulting from any loss on any Eligible Investment included therein except for losses attributable to the Indenture Trustee’s failure to make payments on such Eligible Investments issued by the Indenture Trustee, in its commercial capacity as principal obligor and not as trustee, in accordance with their terms.


 


Section 8.04                      Release of Collateral.


 


(a)           The Indenture Trustee shall, at such time as there are no Notes outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have been Paid In Full, release any remaining portion of the Collateral that secured the Notes from the lien of this Indenture and release to the Issuing Entity 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 8.04(a) only upon receipt by it of an Issuing Entity Request accompanied by an Officer’s Certificate and an Opinion of Counsel.


 


(b)           The Issuing Entity agrees, upon request by the Servicer and representation by the Servicer that it has complied with the procedure in Section 9.01 of the Sale and Servicing Agreement, to render the Issuing Entity Request to the Indenture Trustee in accordance with Section 4.04 and 11.01, and take such other actions as are required in such Sections.


 


Section 8.05                      Opinion of Counsel and Officer’s Certificate.  The Indenture Trustee shall receive at least seven (7) days prior written notice when requested by the Issuing Entity to take any action pursuant to Section 8.04(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 and Officer’s Certificate, 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 adversely impair the security for the Notes or the rights of the Noteholders in contravention of the provisions of this Indenture; provided, however, that such Opinion of Counsel shall not be required to express an opinion as to the fair value of the Collateral.  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.


 


[End of Article VIII]


 




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ARTICLE IX




 


SUPPLEMENTAL INDENTURES


 


Section 9.01                      Supplemental Indentures With Consent of the Noteholders.


 


(a)           The Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity Order, may, with prior notice to the Rating Agencies and with the consent of the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class, by Act of such Holders delivered to the Issuing Entity and the Indenture Trustee, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or of modifying in any manner the rights of the Holders of the Notes under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each outstanding Note affected thereby:


 


(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 or the Redemption Price with respect thereto, change the provisions of this Indenture relating to the application of collections on, or the proceeds of the sale of, the Collateral to payment of principal of or interest on the Notes, or change any place of payment where, or the coin or currency in which, any Note or the interest thereon is payable, or impair the right to institute suit for the enforcement of the provisions of this Indenture requiring the application of funds available therefor, as provided in Article V, to the payment of any such amount due on the Notes on or after the respective due dates thereof (or, in the case of redemption, on or after the Redemption Date);


 


(ii)           change the definition of “Controlling Class” or any other provision hereof specifying the number or percentage of Holders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder;


 


(iii)           modify or alter the provisions of this Indenture regarding the voting of Notes held by the Issuing Entity, any other obligor on the Notes, the Depositor or any affiliate of any of them, or definition of “Notes”;


 


(iv)           reduce the percentage of the Notes required to be represented to direct the Indenture Trustee to direct the Issuing Entity to sell or liquidate the Collateral pursuant to Section 5.04;


 


(v)           modify any provision of this Section 9.01 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 Note affected thereby;


 



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


 


(vii)           permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Collateral or, except as otherwise permitted or contemplated herein, terminate the lien of this Indenture on any property at any time subject hereto or deprive the Noteholder of the security provided by the lien of this Indenture; and


 


provided further that the Issuing Entity shall have received a Tax Opinion (and shall have delivered copies thereof to the Indenture Trustee).


 


(b)           The Indenture Trustee may in its discretion or at the advice of counsel determine whether or not any Notes would be affected by any supplemental indenture and any such determination shall be conclusive upon the Holders of all Notes, whether theretofore or thereafter authenticated and delivered hereunder.  The Indenture Trustee shall not be liable for any such determination made in good faith.


 


(c)           Promptly after the execution by the Issuing Entity and the Indenture Trustee of any supplemental indenture pursuant to this Section 9.01, the Issuing Entity shall mail to the Holders of the Notes to which such amendment or supplemental indenture relates a notice setting forth in general terms the substance of such supplemental indenture.  Any failure of the Issuing Entity to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.


 


(d)           It shall be a condition to the execution and delivery of any amendment to this Agreement that the Rating Agency Condition be satisfied with respect to such amendment.


 


(e)           Notwithstanding anything to the contrary to the foregoing, this Indenture may not be amended in any way that would: (i) materially and adversely affect the Owner Trustee’s or this Indenture Trustee’s, as applicable, own rights, privileges, indemnities, duties or obligations under the Indenture, without the prior written consent of such Person; or (ii) significantly change the permitted activities or powers of the Issuing Entity even if such amendment would not have a material effect on the holders of the Notes, without the consent of the Holders representing at least a majority of the outstanding Note Balance.


 


Section 9.02                      Supplemental Indentures Without Consent of Noteholders.


 


(a)           Without the consent of the Noteholders or any other Person but with prior notice to each Rating Agency, the Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity Order, at any time and from time to time, may enter into


 



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one or more indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as in force at the date of the execution thereof), in form satisfactory to the Indenture Trustee, for any of the following purposes:


 


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


 


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


 


(iii)           to add to the covenants of the Issuing Entity, for the benefit of the Noteholders, or to surrender any right or power herein conferred upon the Issuing Entity;


 


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


 


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


 


(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;


 


(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 Trust Indenture Act or under any similar federal statute hereafter enacted and to add to this Indenture such other provisions as may be expressly required by the Trust Indenture Act; or


 


(viii)           to add, modify or eliminate such provisions as may be necessary or advisable in order to enable (a) the transfer to the Issuing Entity of all or any portion of the Loans to be derecognized under U.S. generally accepted accounting principles by the Loan Seller to the Issuing Entity, (b) the Issuing Entity to avoid becoming a member of the Loan Seller’s consolidated group under U.S. generally accepted accounting principles or (c) the Loan Seller or any of its Affiliates to otherwise comply with or obtain more favorable treatment under any law or regulation or any accounting rule or principle (whether now or in the future in


 



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effect); it being a condition to any such amendment that the Rating Agency Condition be satisfied.


 


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


 


(b)           Any term or provision of this Indenture may be amended by the Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity Order, without the consent of any Noteholder (other than the modifications set forth in Section 9.01, which require consent of each Noteholder affected thereby), the Owner Trustee, the Servicer, the Depositor or any other Person subject to Section 9.02(e) and satisfaction of the following conditions:


 


(i)           the Issuing Entity delivers an Officer’s Certificate of the Servicer, respectively, to the Indenture Trustee to the effect that such amendment will not materially and adversely affect the interests of the Noteholders;


 


(ii)           the Issuing Entity delivers to the Indenture Trustee written confirmation from each Rating Agency that such amendment will not cause it to downgrade, qualify or withdraw its rating assigned to any of the Notes; and


 


(iii)           that such action shall not, as evidenced by an Opinion of Counsel, (A) materially and adversely affect the interests of any Noteholder, (B) affect the treatment of the Notes as debt for federal income tax purposes, (C) cause the Issuing Entity to be deemed an association (or publicly-traded partnership) taxable as a corporation for federal income tax purposes or (D) be deemed to cause a taxable exchange of the Notes for federal income tax purposes.


 


(c)           Prior to the execution of any amendment to this Indenture, the Indenture Trustee, at the written direction of the Issuing Entity, shall provide written notification of the substance of such amendment prepared by the Issuing Entity to each Rating Agency; and promptly after the execution of any such amendment or consent, the Indenture Trustee shall furnish a copy of such amendment or consent to each Rating Agency.


 


(d)           Prior to the execution of any amendment to this Indenture, the Indenture Trustee shall be entitled to receive and conclusively rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and that all conditions precedent to the execution and delivery of such amendment have been satisfied.  The Indenture Trustee may, but shall not be obligated to, enter into or execute on behalf of the Issuing Entity any such amendment which  materially and adversely affects the Indenture Trustee’s own rights, privileges, indemnities, duties or obligations under this Agreement, the Basic Documents or otherwise.


 


(e)           Notwithstanding anything to the contrary to the foregoing, this Indenture may not be amended in any way that would: (i) materially and adversely affect the Owner Trustee’s or this Indenture Trustee’s, as applicable, own rights, privileges, indemnities,


 



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duties or obligations under the Indenture, without the prior written consent of such Person; or (ii) significantly change the permitted activities or powers of the Issuing Entity even if such amendment would not have an adverse effect on the holders of the Notes, without the consent of the Holders representing at least a majority of the outstanding Note Balance.


 


Section 9.03                      Execution of Supplemental Indentures.  In executing, or permitting the additional trusts created by, any supplemental indenture permitted by this Article IX or the modification thereby of the trusts created by this Indenture, the Indenture Trustee shall be entitled to receive, and subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an Opinion of Counsel and Officer’s Certificate stating that the execution of such supplemental indenture is authorized or permitted by this Indenture.  The Indenture Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Indenture Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise.  The Administrator shall provide a fully executed copy of any supplemental indentures to this Indenture to each Rating Agency.


 


Section 9.04                      Effect of Supplemental Indentures.  Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and shall be deemed to be modified and amended in accordance therewith with respect to the Notes affected thereby, and the respective rights, limitations of rights, obligations, duties, liabilities and immunities under this Indenture of the Indenture Trustee, the Issuing Entity and the Noteholders shall of thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all of the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.


 


Section 9.05                      Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may, and if required by the Indenture Trustee shall, bear a notation in form approved by the Indenture Trustee as to any matter provided for in such supplemental indenture.  If the Issuing Entity or the Indenture Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuing Entity, to any such supplemental indenture may be prepared and executed by the Issuing Entity and authenticated and delivered by the Indenture Trustee in exchange for the outstanding Notes.


 


[End of Article IX]


 




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ARTICLE X




REDEMPTION OF NOTES


 


Section 10.01                                Redemption In Whole Pursuant to Option to Purchase.


 


(a)           The Notes are subject to redemption in whole, but not in part, at the direction of the Servicer pursuant to Section 9.01 of the Sale and Servicing Agreement, on any Payment Date on which the Servicer exercises its option to purchase the Collateral (other than the Reserve Account) pursuant to said Section 9.01, for a purchase price equal to the Redemption Price; provided that (i) as of the last day of the related Collection Period the then-outstanding Net Pool Balance as of the last day of the related Collection Period has declined to 10% or less of the Initial Net Pool Balance as of the Cutoff Date, and (ii) the sum of the Optional Purchase Price and the Available Funds as of such Payment Date would be sufficient to pay (x) the amounts set forth under Sections 5.06(a)(i) through 5.06(a)(ix) and Section 5.06(a)(xi) of the Sale and Servicing Agreement and (y) the aggregate outstanding Note Balance of the Notes (without giving effect to payments described in the preceding clause (x)).


 


(b)           Each of the Notes is subject to redemption in whole, but not in part, on any Payment Date on which the sum of the amounts in the Reserve Account and the remaining Available Funds after the payments under Sections 5.06(a)(i) through 5.06(a)(ix) and Section 5.06(a)(xi) would be sufficient to pay in full the aggregate unpaid Note Balance of all of the outstanding Notes as determined by the Servicer.  On such Payment Date, (i) the Indenture Trustee upon written direction from the Servicer shall transfer all amounts on deposit in the Reserve Account to the Collection Account and (ii) the outstanding Notes shall be redeemed in whole, but not in part.


 


(c)           The Servicer or the Issuing Entity shall furnish the Rating Agencies and the Indenture Trustee notice of such redemption.  If the Notes are to be redeemed pursuant to this Section 10.01, the Servicer shall furnish notice of such election to the Indenture Trustee not later than twenty (20) days prior to the Redemption Date and shall deposit on the Business Day prior to the Redemption Date with the Indenture Trustee in the Collection Account and the Principal Distribution Account, as applicable, the Redemption Price of the Notes to be redeemed, whereupon all such Notes shall be due and payable on the Redemption Date upon the furnishing of a notice complying with Section 10.02 to each Holder of the Notes.


 


Section 10.02                                Form of Redemption Notice.


 


(a)           Notice of redemption under Section 10.01 shall be given by the Indenture Trustee at the written direction and at the expense of the Servicer by first-class mail, postage prepaid, or by facsimile mailed or transmitted not later than ten (10) days prior to the applicable Redemption Date to each registered Holder of Notes, as of the close of business on the Record Date preceding the applicable Redemption Date, at such Holder’s address or facsimile number appearing in the Register.  All notices of redemption shall identify the CUSIP number, if applicable, and shall state:


 



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(i)           the Redemption Date;


 


(ii)           the Redemption Price;


 


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


 


(iv)           the place where such Notes are to be surrendered for payment of the Redemption Price (which shall be the office or agency of the Issuing Entity to be maintained as provided in Section 3.02); and


 


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


 


(b)           Notice of redemption of the Notes shall be given by the Indenture Trustee in the name of the Issuing Entity and at the expense of the Servicer.  Failure to give notice of redemption, or any defect therein, to any Holder of any Note shall not impair or affect the validity of the redemption of any other Note.


 


Section 10.03                                Notes Payable on Redemption Date.  The Notes shall, following notice of redemption pursuant to Section 10.01 as required by Section 10.02, on the Redemption Date become due and payable at the Redemption Price and (unless the Issuing Entity shall default in the payment of the Redemption Price) no interest shall accrue on the Redemption Price for any period after the date to which accrued interest is calculated for purposes of calculating the Redemption Price.


 


[End of Article X]


 




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ARTICLE XI




MISCELLANEOUS


 


Section 11.01                                Compliance Certificates and Opinions, etc.


 


(a)  Upon any application or request by the Issuing Entity to the Indenture Trustee to take any action under any provision of this Indenture, the Issuing Entity shall furnish to the Indenture Trustee (x) an Officer’s Certificate stating that the Issuing Entity has complied with all conditions precedent, if any, provided for in this Indenture relating to the proposed action and the proposed action satisfies TIA Section 314(c)(1), (y) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with that satisfies TIA Section 314(c)(2), and (z) if required by the TIA in the case of condition precedent compliance with which is subject to verification by accountants, a certificate or opinion of an accountant that satisfies TIA Section 314(c)(3), except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture, no additional certificate or opinion need be furnished.


 


Every certificate or opinion in accordance with TIA Section 314(e) with respect to compliance with a condition or covenant provided for in this Indenture 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)  Prior to the deposit of any Collateral or other property or securities with the Indenture Trustee that is to be made the basis for the release of any property or securities subject to the lien of this Indenture, the Issuing Entity shall, in addition to any obligation imposed in Section 11.01 or elsewhere in this Indenture, furnish to the Indenture Trustee an Officer’s Certificate certifying or stating the opinion of each Person signing such certificate as to the fair value in accordance with TIA Section 314(d) (as of a date no more than thirty (30) days prior to such deposit) to the Issuing Entity of the Collateral or other property or securities to be so deposited.


 


(i)  Whenever the Issuing Entity 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 (a) above, the Issuing Entity shall also deliver to the Indenture Trustee an Independent Certificate as to the same matters, if the fair value in accordance


 



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with TIA Section 314(d) to the Issuing Entity of the property or securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then-current fiscal year of the Issuing Entity, is 10% or more of the Outstanding Note Balance, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Issuing Entity as set forth in the related Officer’s Certificate is less than $25,000.


 


(ii)  Whenever any property or securities are to be released from the lien of this Indenture, the Issuing Entity 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 (as of a date no more than thirty (30) days prior to such release) of the property or securities proposed to be released and stating that in the opinion of such Person the proposed release will not impair the security under this Indenture in contravention of the provisions hereof.


 


(iii)  Other than with respect to the release of the lien of this Indenture on any Collateral with respect to which payment of the Repurchase Price has been made to the Issuing Entity, the Issuing Entity 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 (ii) above, the Issuing Entity shall also furnish to the Indenture Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property other than property as contemplated by clause (iv) below, or securities released from the lien of this Indenture since the commencement of the then current calendar year, as set forth in the certificates required by clause (ii) above and this clause (iii), equals 1% or more of the Outstanding Note Balance, but such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer’s Certificate is less than $25,000.


 


(iv)  Notwithstanding Section 4.04 or any other provision of this Section 11.01, the Issuing Entity may, without compliance with the requirements of the other provisions of this Section 11.01 (A) collect, liquidate, sell or otherwise dispose of Loans and Financed Vehicles as and to the extent permitted or required by the Basic Documents and (B) make cash payments out of the Trust Accounts as and to the extent permitted or required by the Basic Documents.


 


Section 11.02                                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 Issuing Entity 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


 



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


 


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


 


Whenever in this Indenture, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuing Entity shall deliver any document as a condition of the granting of such application, or as evidence of the Issuing Entity’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 Issuing Entity to have such application granted or to the sufficiency of such certificate or report.  The foregoing shall not, however, be construed to affect the Indenture Trustee’s right to rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in Article VI.


 


Section 11.03                                Acts of Noteholders.


 


(a)           Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by agents duly appointed in writing; and except as herein otherwise expressly provided such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee and, where it is hereby expressly required, to the Issuing Entity.  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 6.01) conclusive in favor of the Indenture Trustee and the Issuing Entity, if made in the manner provided in this Section 11.03.


 


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


 


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


 



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done, omitted or suffered to be done by the Indenture Trustee or the Issuing Entity in reliance thereon, whether or not notation of such action is made upon such Note.


 


Section 11.04                                Notices, etc., to Indenture Trustee, Issuing Entity and Rating Agencies.


 


(a)           Any request, demand, authorization, direction, notice, consent, waiver or Act of Noteholders or other documents provided or permitted by this Indenture shall be in writing and, if such request, demand, authorization, direction, notice, consent, waiver or act of Noteholders is to be made upon, given or furnished to or filed with:


 


(i)           the Indenture Trustee by any Noteholder or by the Issuing Entity, shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Indenture Trustee at its Corporate Trust Office; or


 


(ii)           the Issuing Entity by the Indenture Trustee or by any Noteholder, shall be sufficient for every purpose hereunder if in writing and mailed first-class, postage prepaid to the Issuing Entity addressed to:  Huntington Auto Trust 2012-1, in care of Wilmington Trust, National Association, as Owner Trustee, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:  Corporate Trust Administration, or at any other address previously furnished in writing to the Indenture Trustee by the Issuing Entity or the Administrator.  The Issuing Entity shall promptly transmit any notice received by it from the Noteholders to the Indenture Trustee.


 


(b)           Notices required to be given to the Rating Agencies by the Issuing Entity, the Indenture Trustee or the Owner Trustee shall be in writing and, upon notice that it has been posted to the Depositor’s Rule 17g-5 website, personally delivered or mailed by certified mail, return receipt requested, to (x) in the case of Moody’s, at the following address:  Moody’s Investors Service, Inc., ABS Monitoring Department, 99 Church Street, New York, New York 10007 and (y) in the case of Standard & Poor’s, at the following address:  Standard & Poor’s Financial Services LLC, 55 Water Street, New York, New York 10041, Attention of Asset Backed Surveillance Department; or as to each of the foregoing, at such other address as shall be designated by written notice to the other parties.


 


Section 11.05                                Notices to Noteholders; Waiver.  Where this Indenture provides for any notice, report or other communication to any Noteholders, such notice, report or other communication 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 such Holder’s address as it appears on the Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice, report or other communication and shall be deemed given only upon receipt.


 


Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Noteholders shall


 



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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 reasonably satisfactory to the Indenture Trustee and actually received by such recipient shall be deemed to be a sufficient giving of such notice.


 


Where this Indenture provides for notice to the Rating Agencies, failure to give such notice shall not affect any other rights or obligations created hereunder, and shall not under any circumstance constitute a Default or Event of Default; except where such failure to give notice results in a downgrade to the Notes.


 


Upon notice from the Issuing Entity that they have been posted on the Depositor’s 17g-5 Website, the Noteholders shall be provided with copies of all notices, reports or other communication required to be made upon, given, furnished to or filed with the Indenture Trustee or the Issuing Entity, which copies shall be provided to the Noteholders by the initial recipient thereof.


 


Section 11.06                                Alternate Payment and Notice Provisions.  Notwithstanding any provision of this Indenture or any of the Notes to the contrary, the Issuing Entity may enter into any agreement with any Holder of a Note providing for a method of payment, or notice by the Indenture Trustee or any Paying Agent to such Holder, that is different from the methods provided for in this Indenture for such payments or notices.  The Issuing Entity will furnish to the Indenture Trustee a copy of each such agreement and the Indenture Trustee will cause payments to be made and notices to be given in accordance with such agreements.  The Indenture Trustee shall provide a copy of any request made pursuant to this Section 11.06 to the Owner Trustee.


 


Section 11.07                                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 11.08                                Successors and Assigns.  All covenants and agreements in this Indenture and the Notes by the Issuing Entity shall bind its successors and assigns, whether so expressed or not.  All agreements of the Indenture Trustee in this Indenture shall bind its successors, co-trustees and agents.


 


Section 11.09                                Severability.  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 11.10                                Benefits of Indenture.  Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their permitted successors hereunder, and the Noteholders and Owners and their respective successors and assigns, and any other party secured hereunder, and any other Person with an ownership interest


 



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in any part of the Collateral, any benefit or any legal or equitable right, remedy or claim under this Indenture.


 


Section 11.11                                Legal Holidays.  In any case where the date on which any payment is due shall not be a Business Day, then (notwithstanding any other provision of the Notes or this Indenture) payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date on which nominally due, and no interest shall accrue for the period from and after any such nominal date.


 


Section 11.12                                GOVERNING LAW.  THIS INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (EXCEPT FOR SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.


 


Section 11.13                                Counterparts.  This Indenture may be executed in any number of counterparts (including by facsimile or other electronic transmission), 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 11.14                                Recording of Indenture.  If this Indenture is subject to recording in any appropriate public recording offices, such recording is to be effected by the Issuing Entity and at the expense of the Servicer accompanied by an Opinion of Counsel to the effect that such recording is necessary either for the protection of the Noteholders or any other Person secured hereunder or for the enforcement of any right or remedy granted to the Indenture Trustee under this Indenture.


 


Section 11.15                                Trust Obligation.  No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuing Entity, the Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or any certificate delivered in connection herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuing Entity, solely in such capacity, including the Depositor, or (iii) any partner, owner, beneficiary, agent, officer, director, employee or agent of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuing Entity, solely in such capacity, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no such obligations in their individual capacity).  For all purposes of this Indenture, in the performance of any duties or obligations of the Issuing Entity hereunder, the Owner Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Article VI, VII and VIII of the Trust Agreement.


 


Section 11.16                                No Petition.  The Indenture Trustee, by entering into this Indenture, and each Noteholder and Owner, by accepting a Note or an interest therein,  hereby covenant and agree that they will not at any time institute against the Issuing Entity or the Depositor, or join in any institution against the Issuing Entity or the Depositor, of any


 



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


 


Section 11.17                                Inspection.  The Issuing Entity agrees that, on reasonable prior notice, it will permit any representative of the Indenture Trustee, during the Issuing Entity’s normal business hours, to examine all of the books of account, records, reports and other papers of the Issuing Entity, to make copies and extracts therefrom, to cause such books to be audited by Independent certified public accountants, and to discuss the Issuing Entity’s affairs, finances and accounts with the Issuing Entity’s officers, employees and Independent certified public accountants, all at such reasonable times and as often as may be reasonably requested; provided, however, that the Indenture Trustee may only cause the books of the Issuing Entity to be audited on an annual basis, unless there occurs an Event of Default hereunder.  The Indenture Trustee shall, and shall cause its representatives to, hold in confidence all such information except to the extent such information is publicly available or such 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 with the advice of counsel and after consultation with the Issuing Entity that such disclosure is consistent with its obligations hereunder.


 


Section 11.18                                Limitation of Liability.  (a) It is expressly understood and agreed by the parties hereto that (i) this Indenture is executed and delivered by Wilmington Trust, National Association, not individually or personally but solely as Owner Trustee of Huntington Auto Trust 2012-1, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuing Entity is made and intended not as personal representations, undertakings and agreements by Wilmington Trust, National Association but is made and intended for the purpose for binding only the Issuing Entity, (iii) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (iv) under no circumstances shall Wilmington Trust, National Association be personally liable for the payment of any indebtedness or expenses of the Issuing Entity or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuing Entity under this Indenture or any other related documents.


 


(b)           Notwithstanding anything contained herein to the contrary, this Agreement has been accepted by Deutsche Bank Trust Company Americas, not in its individual capacity but solely as Indenture Trustee, and in no event shall Deutsche Bank Trust Company Americas have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuing Entity hereunder or in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the Issuing Entity in accordance with the priorities set forth herein.


 


Section 11.19                                Waiver of Jury Trial.




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EACH OF THE ISSUING ENTITY AND THE INDENTURE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


Section 11.20                                Force Majeure.


 


In no event shall the Indenture Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Indenture Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.


 


Section 11.21                                Patriot Act.


 


The parties hereto acknowledge that, in accordance with Section 326 of the USA Patriot Act, Deutsche Bank Trust Company Americas, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account.  The parties to this Agreement agree that they will provide the Deutsche Bank Trust Company Americas with such information as it may request in order for the Deutsche Bank Trust Company Americas to satisfy the requirements of the USA Patriot Act.


 


Section 11.22                                Conflict with Trust Indenture Act.


 


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


 


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


 


ARTICLE XII




COMPLIANCE WITH THE FDIC RULE


 


Section 12.01                                Purpose.


 


(a)           Each of the Noteholders, Huntington, the Depositor and the Indenture Trustee acknowledges and agrees that the purpose of this Article XII is to facilitate compliance by Huntington with the provisions of the FDIC Rule. Each of the Noteholders, Huntington, the Depositor and the Indenture Trustee acknowledges that the


 



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interpretations of the requirements of the FDIC Rule may change over time, whether due to interpretive guidance provided by the FDIC or its staff, consensus among participants in the asset-backed securities markets, advice of counsel, or otherwise, and agrees that the provisions set forth in this Article XII shall have the effect and meanings that are appropriate under the FDIC Rule as such meanings change over time on the basis of evolving interpretations of the FDIC Rule.


 


(b)           If any provision of the FDIC Rule is amended, or any interpretive guidance regarding the FDIC Rule is provided by the FDIC or its staff, as a result of which the Issuing Entity determines that an amendment to this Article XII is necessary or desirable, then the Issuing Entity and the Indenture Trustee shall be authorized and entitled to amend this Article XII in accordance with such FDIC Rule amendment or guidance, provided that the Issuing Entity delivers to the Indenture Trustee an Officer’s Certificate to the effect that (i) such amendment will not have a material adverse effect on the Noteholders or (ii) such amendment is required to remain in compliance with the FDIC Rule. Nothing in this Section 12.1(b) shall limit the rights of the Indenture Trustee pursuant to Section 9.03.


 


(c)           As used in this Article XII, but subject to the rules of interpretation specified in Section 12.01(a) and Section 12.01(b), references to (i) the “sponsor” shall mean Huntington, (ii) the “issuing entity” shall mean, collectively, the Depositor and the Issuing Entity (except in Section 12.02(e), where such term shall have the meaning in the FDIC Rule), (iii) the “servicer” shall mean the Servicer or Administrator, as applicable, (iv) “obligations” or “securitization obligations” shall mean the Notes, and (v) “financial assets” and “securitized financial assets” shall mean the Loans (except in Section 12.02(e), where such term shall have the meaning in the FDIC Rule).


 


(d)           The Issuing Entity believes that the transactions and actions contemplated by the Basic Documents and the Prospectus comply with the requirements of Section 12.02.


 


Section 12.02                                Requirements of FDIC Rule. As required by the FDIC Rule:


 


(a)            Payment of principal and interest on the securitization obligations must be primarily based on the performance of financial assets that are transferred to the issuing entity and, except for interest rate or currency mismatches between the financial assets and the obligations, shall not be contingent on market or credit events that are independent of such financial assets.


 


(b)           The sponsor, issuing entity, and/or servicer, as appropriate, shall make available to investors, information describing the financial assets, obligations, capital structure, compensation of relevant parties, and relevant historical performance data set forth below:


 


(i)            On or prior to issuance of obligations and at the time of delivery of any periodic distribution report and, in any event, at least once per calendar quarter, while obligations are outstanding, information about the obligations and


 



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the securitized financial assets shall be disclosed to all potential investors at the financial asset or pool level, as appropriate for the financial assets, and security-level to enable evaluation and analysis of the credit risk and performance of the obligations and financial assets. Such information and its disclosure, at a minimum, shall comply with the requirements of Regulation AB or any successor disclosure requirements for public issuances, even if the obligations are issued in a private placement or are not otherwise required to be registered; provided, however, that information that is unknown or not available to the sponsor or the issuing entity after reasonable investigation may be omitted if the issuing entity includes a statement in the offering documents disclosing that the specific information is otherwise unavailable;


 


(ii)           (ii) On or prior to issuance of obligations, the structure of the securitization and the credit and payment performance of the obligations shall be disclosed, including the capital or tranche structure, the priority of payments and specific subordination features; representations and warranties made with respect to the financial assets, the remedies for and the time permitted for cure of any breach of representations and warranties, including the repurchase of financial assets, if applicable; liquidity facilities and any credit enhancements permitted by the FDIC Rule, any waterfall triggers or priority of payment reversal features; and policies governing delinquencies, servicer advances, loss mitigation, and write-offs of financial assets;


 


(iii)            While obligations are outstanding, the issuing entity shall provide to investors information with respect to the credit performance of the obligations and the financial assets, including periodic and cumulative financial asset performance data, delinquency and modification data for the financial assets, substitutions and removal of financial assets, servicer advances, as well as losses that were allocated to such tranche and remaining balance of financial assets supporting such tranche, if applicable, and the percentage of each tranche in relation to the securitization as a whole; and


 


(iv)           The nature and amount of compensation paid to the originator, sponsor, rating agency or third-party advisor, any mortgage or other broker, and the servicer(s), and the extent to which any risk of loss on the underlying assets is retained by any of them for such securitization shall be disclosed. The Issuing Entity shall provide to investors while any obligations are outstanding any changes to such information and the amount and nature of payments of any deferred compensation or similar arrangements to any of the parties.


 


(c)           Prior to the effective date of regulations required under Section 15G of the Securities Exchange Act, 15 U.S.C. 78a et seq., added by Section 941(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (such regulations, the “Section 941 Rules” and such date, the “Section 941 Effective Date”), the sponsor shall retain an economic interest in a material portion, defined as not less than five (5) percent, of the credit risk of the financial assets. This retained interest may be either in the form of an interest of not less than five (5) percent in each of the credit tranches sold or transferred


 



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to the investors or in a representative sample of the securitized financial assets equal to not less than five (5) percent of the principal amount of the financial assets at transfer. This retained interest may not be sold or pledged or hedged, except for the hedging of interest rate or currency risk, during the term of the securitization.


 


(d)           The obligations shall not be predominantly sold to an affiliate (other than a wholly-owned subsidiary consolidated for accounting and capital purposes with the sponsor) or insider of the sponsor.


 


(e)           The sponsor shall separately identify in its financial asset data bases the financial assets transferred into any securitization and shall maintain an electronic or paper copy of the closing documents in a readily accessible form, a current list of all of its outstanding securitizations and issuing entities, and the most recent Form 10-K, if applicable, or other periodic financial report for each securitization and issuing entity. The sponsor shall make these records readily available for review by the FDIC promptly upon written request.


 


(f)           To the extent serving as servicer, custodian or paying agent for the securitization, the sponsor shall not comingle amounts received with respect to the financial assets with its own assets except for the time, not to exceed two business days, necessary to clear any payments received.


 


Section 12.03                                Performance.


 


The Issuing Entity agrees to (i) perform the covenants set forth in Section 12.02, except to the extent any such obligation is specifically imposed exclusively on the servicer or the sponsor and (ii) facilitate compliance with this Article XII by Huntington and the Depositor.


 


Section 12.04                                Effect of Section 941 Rules.


 


Section 12.02(c) hereof shall not be construed to require the sponsor to retain any greater economic interest in the credit risk of the financial assets than is required to comply with the FDIC Rule and other Applicable Law. Accordingly, upon the Section 941 Effective Date and thereafter, the sponsor shall be entitled to adjust the amount of credit risk that it retains, or the terms under which such credit risk is retained, to the greatest extent elected by the sponsor, so long as the sponsor’s retention shall be in compliance with then Applicable Law. Within a reasonable time after the sponsor has so adjusted the amount or terms of the credit risk it retains, the sponsor shall give notice thereof to the Noteholders, and each of the Indenture Trustee, the Depositor and Huntington is authorized and entitled to amend Section 12.02(c), in accordance with and to the extent the Issuing Entity determines necessary or appropriate, to reflect the requirements of the Section 941 Rules.


 


Section 12.05                                Actions upon Repudiation.


 


(a)           In the event that the Loan Seller becomes the subject of an insolvency proceeding and the FDIC as receiver or conservator for the Loan Seller exercises its right of repudiation as contemplated by paragraph (d)(4)(ii) of the FDIC Rule, the Servicer shall determine whether the FDIC in such capacity will pay damages as provided in such


 



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paragraph (d)(4)(ii). Upon making such determination, the Servicer shall promptly, and in any event no more than one Business Day thereafter, so notify the Indenture Trustee.


 


(b)            Upon receipt of the notice specified in Section 12.05(a), the Indenture Trustee shall determine the date (the “applicable distribution date”) for making a distribution to Noteholders of such damages, which date shall be the earlier of (i) the next Payment Date on which such damages could be distributed and (ii) the earliest practicable date by which the Indenture Trustee could declare a special distribution date, in each case subject to all applicable provisions of this Indenture, Applicable Law and the procedures of any applicable Clearing Agency. The Indenture Trustee is authorized and instructed to retain possession and control of the Reserve Account and the Collection Account and all amounts on deposit therein.


 


(c)           When the applicable distribution date is determined, the Servicer shall promptly compute the amount of interest to be paid on each Class of Notes on the applicable distribution date, which interest (unless such applicable distribution date is a Payment Date) shall be the amount accruing up to the applicable distribution date and which shall be computed by pro rating the amount that would otherwise be payable on the next succeeding Distribution Date on the basis of (x) the number (in the case of Notes other than the Class A-1 Notes, not to exceed 30) of days elapsed from such preceding Payment Date divided by (y) 30. The Servicer shall notify the Indenture Trustee of the applicable amounts of principal and interest to be paid on each Class of Notes not later than the Business Day following the day on which the applicable distribution date is determined.


 


(d)            If the applicable distribution date is a special distribution date, the Indenture Trustee, at the written direction of the Servicer, shall (i) declare such special distribution date (the record date for which shall be the close of business on the day immediately preceding such special distribution date), (ii) declare a special distribution to Noteholders consisting of unpaid interest on each Note and the outstanding principal balance of each Note and (iii) deliver notice to the Noteholders of such special distribution date and special distribution.


 


(e)           Following payment by the FDIC of such damages:


 


(i)           such damages shall be deposited into the Principal Distribution Account;


 


(ii)           the Servicer shall promptly, and no later than one Business Day after such damages have been paid by the FDIC, (i) compute the amount, if any, required to be withdrawn from available funds in the Reserve Account (and, if necessary, the Collection Account) and transferred to the Principal Distribution Account so that the amount on deposit in the Principal Distribution Account shall equal the aggregate amount to be distributed as specified in Section 12.05(c), and (ii) promptly inform the Indenture Trustee of such computations;


 



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(iii)           on the applicable distribution date, the Indenture Trustee, at the written direction of the Servicer, shall, based on the computations in Section 12.05(e), first, withdraw from monies on deposit in the Reserve Account and, if necessary, monies on deposit in the Collection Account the amount so computed and cause such amount to be deposited into the Principal Distribution Account and second, cause all amounts deposited in the Principal Distribution Account pursuant to this Section 12.05 to be applied in accordance with Section 2.07, to the extent of the amounts available for application pursuant thereto (but distributing to each class the amount of interest computed by the Servicer pursuant to Section 12.05(c), rather than the amount specified in Section 2.07); and


 


(f)           Any funds remaining in the Collection Account and the Reserve Account shall be distributed on the following Payment Date (or on such applicable distribution date, if it is a Payment Date), such distributions to be made in accordance with the applicable provisions of the Basic Documents, with the Servicer to adjust the amounts of such distributions in the Servicer’s Accounting to take into account the amounts distributed on the applicable distribution date.


 


Section 12.06                                Notice.


 


(a)           In the event that the Loan Seller becomes the subject of an insolvency proceeding and the FDIC as receiver or conservator provides a written notice of repudiation as contemplated by paragraph (d)(4)(ii) of the FDIC Rule, the party receiving such notice shall promptly deliver such notice to each of the Depositor, Huntington and the Indenture Trustee.


 


(b)           If the FDIC (i) is appointed as a conservator or receiver of the Loan Seller and (ii) is in default in the payment of principal or interest when due following the expiration of any cure period hereunder or under the other Basic Documents, the Indenture Trustee at the written direction of the Holders of at least 25% of the outstanding Note Balance of the Controlling Class, the Servicer or a Noteholder shall be entitled to deliver written notice to the FDIC requesting the exercise of contractual rights hereunder and under the other Basic Documents.


 


Section 12.07                                Reservation of Rights.


 


Neither the inclusion of this Article XII in this Indenture nor the compliance by any Person with, or the acknowledgment by any Person of, this Article’s provisions constitutes an agreement or acknowledgment by any Person that, in the case of an insolvency proceeding with respect to Huntington, a receiver or conservator will have any rights with respect to the Collateral.


 







 







 


[End of Article XI]


 



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


 



	  	
HUNTINGTON AUTO TRUST 2012-1


	  	  
	  	
By:

	
WILMINGTON TRUST, NATIONAL


ASSOCIATION, not in its individual


capacity but solely as Owner Trustee


	  	  
	  	
By:   /s/ Jeanne M. Oller                                   


	  	  	
Name: Jeanne M. Oller


	  	  	
Title:  Assistant Vice President
















Indenture 





  











  














	  	
DEUTSCHE BANK TRUST COMPANY


AMERICAS, not in its individual capacity but


solely as Indenture Trustee


	  	  
	  	  
	  	  
	  	
By:  /s/ Louis Bodi                                  


	  	  	
Name:  Louis Bodi


	  	  	
Title:    Vice President


	  	  
	  	  
	  	  
	  	
By:  /s/ Sue Kim                                  


	  	  	
Name:  Sue Kim


	  	  	
Title:    Assistant Vice President





















Indenture 





  











  






EXHIBIT A-1


 


FORM OF [CLASS A-1] [CLASS A-2 [CLASS A-3] [CLASS A-4] NOTE


 


UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUING ENTITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.


 


BY ACQUIRING THIS NOTE, EACH PURCHASER OR TRANSFEREE WILL BE DEEMED TO REPRESENT AND WARRANT THAT EITHER (I) IT IS NOT ACQUIRING AND WILL NOT HOLD THE NOTES WITH THE ASSETS OF AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A “PLAN” AS DEFINED IN SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), AN ENTITY DEEMED TO HOLD THE PLAN ASSETS OF ANY OF THE FOREGOING OR ANY OTHER EMPLOYEE BENEFIT PLAN OR RETIREMENT ARRANGEMENT THAT IS SUBJECT TO A LAW THAT IS SIMILAR TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR (II) THE ACQUISITION, HOLDING AND DISPOSITION OF THIS NOTE WILL NOT GIVE RISE TO A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A NONEXEMPT VIOLATION OF ANY SIMILAR APPLICABLE LAW.


 


ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE PURCHASER OR TRANSFEREE NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUING ENTITY, THE INDENTURE TRUSTEE OR ANY INTERMEDIARY. EACH TRANSFEROR OF THIS NOTE AGREES TO PROVIDE NOTICE OF THE TRANSFER RESTRICTIONS SET FORTH HEREIN AND IN THE INDENTURE TO THE TRANSFEREE. IN ADDITION TO THE FOREGOING, THE ISSUING ENTITY MAINTAINS THE RIGHT TO RESELL ANY INTEREST IN THIS NOTE PREVIOUSLY TRANSFERRED TO AN IMPERMISSIBLE HOLDER IN ACCORDANCE WITH AND SUBJECT TO THE TERMS OF THE INDENTURE.


 






Indenture (Exhibit A-1)





  











  






HUNTINGTON AUTO TRUST 2012-1


 


[CLASS A-1][CLASS A-2][CLASS A-3][CLASS A-4] AUTO LOAN ASSET BACKED NOTE


 


$_________________3


 


NOTE No. ____


 


[CUSIP NO. [_________]


 


[ISIN NO. [__________]


 







 


HUNTINGTON AUTO TRUST 2012-1, a Delaware statutory trust (herein referred to as the “Issuing Entity”), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of _________ MILLION DOLLARS ($________), on the earlier of the Payment Date occurring in [______] (the “Final Scheduled Payment Date”) and the Redemption Date, if any, pursuant to Section 10.01 of the Indenture (referred to on the reverse side hereof) except as provided below or in the Indenture (referred to on the reverse side hereof); provided, however, that the principal sum of this [Class A-1][Class A-2][Class A-3] [Class A-4] Note and each other Note of the same Class shall not collectively exceed the principal amount of $[________].  The Issuing Entity will pay interest on this Note at the [Class A-1][Class A-2][Class A-3] [Class A-4]  Interest Rate, on each Payment Date until the principal of this Note is paid or made available for payment, on the principal amount of this Note outstanding on the close of business on the preceding Payment Date, subject to certain limitations contained in Article V of the Sale and Servicing Agreement (referred to on the reverse side hereof).  [Interest on this Note will accrue for each Payment Date from the most recent Payment Date on which interest has been paid to but excluding the then current Payment Date or, if no interest has yet been paid, from the Closing Date. Interest will be computed on the basis of the actual number of days in each Interest Period divided by 360.]4[Interest on this Note will accrue for each Payment Date from the and including the 15th day of each calendar month preceding the Payment Date (or from and including the Closing Date in the case of the first Payment Date) to but excluding the 15th day of month of the Payment Date.  Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months.]5 Such principal of and interest on this Note shall be paid in the manner specified in the Indenture and the Sale and Servicing Agreement.


 


Capitalized terms used but not defined herein are defined in Indenture or the Sale and Servicing Agreement. To the extent any provision of this Note conflicts with, or is inconsistent with, the Terms of the Basic Documents, the terms of the Basic Documents shall control.


 


The Notes are secured by certain assets of the Issuing Entity consisting primarily of a portfolio of motor vehicle installment sale contracts and loans. This note (the “Note”) does


 


_________________________


 


3 Denominations of $100,000 and integral multiples of $1,000 in excess thereof.


4 For the Class A-1 Notes.


5 For Class A Notes other than the Class A-1 Notes.


 






Indenture (Exhibit A-1)





  











  






not represent an interest in, or obligation of, Huntington Funding, LLC (the “Depositor”), The Huntington National Bank, or any affiliate thereof.


 


Unless the certificate of authentication hereon has been executed by or on behalf of the Indenture Trustee, by manual signature, this Note shall not be entitled to any benefit under the Indenture, or the Sale and Servicing Agreement or be valid for any purpose.


 


THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 






Indenture (Exhibit A-1)





  











  






IN WITNESS WHEREOF, the Issuing Entity has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.


 



	  	
HUNTINGTON AUTO TRUST 2012-1


	  	  
	  	
By:

	
Wilmington Trust, National Association, not


in its individual capacity but solely as


Owner Trustee under the Trust Agreement





 


	  	  
	  	
By:  ___________________________________


	  	  	
Authorized Signatory

	  





 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


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


 



	
Date:

	
Deutsche Bank Trust Company Americas, not in its


individual capacity but solely as Indenture Trustee


	  	  
	  	  
	  	
By:  ___________________________________


	  	  	
Authorized Signatory

	  














Indenture (Exhibit A-1)





  











  






REVERSE OF NOTE


 


This certifies that Cede & Co. (the “Noteholder”), is the registered owner of the Note which is secured by certain assets of the HUNTINGTON AUTO TRUST 2012-1 (the “Issuing Entity”) created by the Amended and Restated Trust Agreement, dated as of January 31, 2012, between Depositor and Wilmington Trust, National Association, as Owner Trustee (the “Owner Trustee”). The Notes are issued pursuant to an Indenture, dated as of January 31, 2012 (as amended, the “Indenture”), between the Issuing Entity and Deutsche Bank Trust Company Americas, as Indenture Trustee (the “Indenture Trustee”) and are subject to the terms of the Indenture, the Sale and Servicing Agreement, dated as of January 31, 2012 (as amended, the “Sale and Servicing Agreement”), among The Huntington National Bank, Depositor, the Indenture Trustee and the Issuing Entity.


 


The property of the Issuing Entity will include the Issuing Entity’s right, title and interest in, to and under the Collateral (as defined in the Indenture).


 


This Note is issued under and is subject to the terms, provisions and conditions of the Sale and Servicing Agreement, and the Indenture, as each may be amended and supplemented from time to time, the Noteholder by virtue of the acceptance hereof assents and is bound. Although a summary of certain provisions of the Sale and Servicing Agreement and the Indenture are set forth below, this Note does not purport to summarize the Sale and Servicing Agreement or the Indenture and reference is made to the Sale and Servicing Agreement and the Indenture for information with respect to the interests, rights, benefits, obligations, proceeds and duties evidenced hereby and the rights, duties and obligations of the Indenture Trustee.  A copy of the Sale and Servicing Agreement and the Indenture (without schedules and exhibits) may be requested from the Indenture Trustee by writing to the Indenture Trustee at Deutsche Bank Trust Company Americas, 60 Wall Street, 27th Floor, New York, NY 10005 (facsimile (212) 553-2459); Attention: SFS-TSS. In the event of any conflict between this Note, on the one hand, and the Indenture or the Sale and Servicing Agreement on the other hand, the Indenture or the Sale and Servicing Agreement shall control.


 


The Issuing Entity has entered into the Sale and Servicing Agreement and the Notes have been (or will be) issued with the intention that the Notes will qualify under applicable law as indebtedness of the Issuing Entity secured by the Collateral. The Issuing Entity, each Beneficiary and each Noteholder and Owner by the acceptance of its Note or Book-Entry Note, as applicable, agrees to treat the Notes as indebtedness secured by the Collateral for Federal income, state and local income, and franchise taxes and any other taxes imposed on or measured by income.


 


On each Payment Date, the Indenture Trustee shall distribute to each Noteholder at the close of business on the last day of the prior Collection Period (each a “Record Date”) such Noteholder’s share of such amounts on deposit in the Collection Account as are payable in respect of Notes pursuant to the Sale and Servicing Agreement.  Distributions with respect to this Note will be made by the Indenture Trustee by check mailed to the address of the Noteholder of record appearing on the Register without the presentation or surrender of this Note or the making of any notation thereon (except for the final distribution in respect of this Note) except that with respect to Notes registered in the name of a Depository, including Cede & Co., the nominee for


 






Indenture (Exhibit A-1)





  











  






DTC, distributions will be made to the Depository in immediately available funds. Final payment of this Note will be made only upon presentation and surrender of this Note at the office or agency specified in the notice of final distribution delivered by the Indenture Trustee to the Noteholder in accordance with the Indenture.


 


On the Payment Date occurring after the date on which the aggregate outstanding principal balance of the Notes is reduced to an amount equal to or less than 10% of the initial Net Pool Balance as of the Cut-off Date, the Servicer shall have the option to redeem the Notes in whole, but not in part, at a purchase price equal to the Redemption Price for such Payment Date.  Each of the Notes is also subject to redemption in whole, but not in part, on any Payment Date on which the sum of the amounts in the Reserve Account and the remaining Available Funds after the payments under Sections 5.06(a)(i) through 5.06(a)(ix) and Section 5.06(a)(xi) would be sufficient to pay in full the aggregate unpaid Note Balance of all of the outstanding Notes as determined by the Servicer.


 


This Note does not represent an obligation of, or an interest in Depositor, The Huntington National Bank, or any affiliate of any of them and is not insured or guaranteed by any governmental agency or instrumentality. This Note is limited in right of payment to certain Collections with respect to the Collateral, all as more specifically set forth herein and in the Sale and Servicing Agreement and the Indenture.


 


Upon the satisfaction of the Rating Agency Condition, the Sale and Servicing Agreement may be amended from time to time by the Depositor, the Loan Seller, the Servicer, the Indenture Trustee, the Issuing Entity and the Noteholders holding a majority of the Note Balance of the Controlling Class for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Sale and Servicing Agreement or of modifying in any manner the rights of the Noteholders.


 


The Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity Order, may, with prior notice to the Rating Agencies and with the consent of the Noteholders representing a majority of the outstanding Note Balance of the Controlling Class, by Act of such Holders delivered to the Issuing Entity and the Indenture Trustee, enter into supplemental indentures for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, the Indenture or of modifying in any manner the rights of the Holders of the Notes under the Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each 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 or the Redemption Price with respect thereto, change the provisions of the Indenture relating to the application of collections on, or the proceeds of the sale of, the Collateral to payment of principal of or interest on the Notes, or change any place of payment where, or the coin or currency in which, any Note or the interest thereon is payable, or impair the right to institute suit for the enforcement of the provisions of the Indenture requiring the application of funds available therefor, as provided in Article V thereof, to the payment of any such amount due on the Notes on or after the respective due dates thereof (or, in the case of redemption, on or after the Redemption Date); (ii) change the definition of “Controlling Class” or any other provision hereof specifying the number or percentage of Holders required to waive, amend or modify any rights under the Indenture or make any determination or grant any consent


 






Indenture (Exhibit A-1)





  











  






hereunder; (iii) modify or alter the definition of “Notes”; (iv) reduce the percentage of the Notes required to be represented to direct the Indenture Trustee to direct the Issuing Entity to sell or liquidate the Collateral pursuant to Section 5.04 of the Indenture; (v) modify any provision of Section 9.01 of the Indenture except to increase any percentage specified therein or to provide that certain additional provisions of the Indenture or the Basic Documents cannot be modified or waived without the consent of the Holder of each Note affected thereby; (vi) modify any of the provisions of the Indenture in such manner as to affect the calculation of the amount of any payment of interest or principal due on any Note on any Payment Date (including the calculation of any of the individual components of such calculation) or to affect the rights of the Noteholders to the benefit of any provisions for the mandatory redemption of the Notes contained therein;  (vii) permit the creation of any lien ranking prior to or on a parity with the lien of the Indenture with respect to any part of the Collateral or, except as otherwise permitted or contemplated therein, terminate the lien of the Indenture on any property at any time subject hereto or deprive the Noteholder of the security provided by the lien of the Indenture.


 


Without the consent of the Noteholders or any other Person but with prior notice to each Rating Agency, the Issuing Entity and the Indenture Trustee, when authorized by an Issuing Entity Order, at any time and from time to time, may enter into one or more supplemental indentures, (i) to correct or amplify the description of any property at any time subject to the lien of the Indenture, or better to assure, convey and confirm unto the Indenture Trustee any property subject or required to be subjected to the lien of the Indenture, or to subject additional property to the lien of the Indenture; (ii) to evidence the succession, in compliance with the applicable provisions hereof, of another Person to the Issuing Entity, and the assumption by any such successor of the covenants of the Issuing Entity contained herein and in the Notes; (iii) to add to the covenants of the Issuing Entity, for the benefit of the Noteholders, or to surrender any right or power herein conferred upon the Issuing Entity; (iv) to convey, transfer, assign, mortgage or pledge any property to or with the Indenture Trustee; (v) to cure any ambiguity, to correct or to supplement any provision herein or in any supplemental indenture which may be inconsistent with any other provision of the Indenture or in any supplemental indenture or to make any other provisions with respect to matters or questions arising under the Indenture or in any supplemental indenture; provided, that such action shall not materially and adversely affect the interests of the Noteholders; (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 the Indenture as shall be necessary to facilitate the administration of the trusts by more than one trustee, pursuant to the requirements of Article VI of the Indenture; (vii) to modify, eliminate or add to the provisions of the Indenture to such extent as shall be necessary to effect the qualification of the Indenture under the Trust Indenture Act or under any similar federal statute hereafter enacted and to add to the Indenture such other provisions as may be expressly required by the Trust Indenture Act; or (viii) to add, modify or eliminate such provisions as may be necessary or advisable in order to enable (a) the transfer to the Issuing Entity of all or any portion of the Loans to be derecognized under U.S. generally accepted accounting principles by the Loan Seller to the Issuing Entity, (b) the Issuing Entity to avoid becoming a member of the Loan Seller’s consolidated group under U.S. generally accepted accounting principles or (c) the Loan Seller or any of its Affiliates to otherwise comply with or obtain more favorable treatment under any law or regulation or any accounting rule or principle (whether now or in the future in effect); it being a condition to any such amendment that the Rating Agency Condition be satisfied.


 






Indenture (Exhibit A-1)





  











  






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


 


Notwithstanding anything to the contrary in the foregoing, none of the Basic Documents may be amended in any way that would: (i) materially and adversely affect the Owner Trustee’s or the Indenture Trustee’s, as applicable, own rights, privileges, indemnities, duties or obligations under the Basic Documents or otherwise without the prior written consent of such Person; or (ii) significantly change the permitted activities or powers of the Issuing Entity even if such amendment would not have an adverse effect on the Holders of the Notes without the consent of the Holders representing a majority of the outstanding Note Balance.


 


As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Register of the Registrar upon surrender of this Note for registration of transfer at the office or agency maintained by the Registrar in the Borough of Manhattan, The City of New York, accompanied by a written instrument of transfer in form satisfactory to the Registrar duly executed by the Holder hereof or such Holder’s attorney duly authorized, and thereupon one or more new Notes of authorized denominations evidencing the same aggregate fractional undivided interest will be issued to the designated transferee or transferees.


 


The Notes are issuable only as registered Notes without coupons in denominations specified in the Indenture.


 


As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for new Notes of a like Class and aggregate principal amount as requested by the Noteholder surrendering such Notes. No service charge may be imposed for any such exchange, but the Indenture Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.


 


The Servicer, the Indenture Trustee, the Issuing Entity and the Registrar and any agent of any of them, may treat the person in whose name this Note is registered as the owner hereof for all purposes, and neither the Servicer nor the Indenture Trustee, the Issuing Entity and Registrar, nor any agent any of them, shall be affected by notice to the contrary except in certain circumstances described in the Indenture.


 


The Indenture Trustee is not responsible for and makes no representation as to the validity or adequacy of the Indenture or this Note, is not accountable for the Issuing Entity’s use of proceeds of the Notes and is not responsible for any statement in this Note other than the Indenture Trustee’s certificate of authentication.


 






Indenture (Exhibit A-1)





  











  






ASSIGNMENT


 


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


__________________________________________________


 


FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:


 


 











(name and address of assignee)







the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints


 


____________________________________________, attorney, to transfer said Note on the 


 


books kept for registration thereof, with full power of substitution in the premises.


 



	
Dated: _____________________

	
_____________________________________


	  	
Signature Guaranteed:


	  	  
	  	  
	  	
_____________________________________









 



	
  */

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
















Indenture (Exhibit A-1)





  











  






EXHIBIT A-2


 


FORM OF CLASS B NOTE


 


[NTD:  TO BE IDENTICAL TO EXHIBIT A-1, MUTATIS MUTANDIS]


 






Indenture (Exhibit A-2)





  











  






EXHIBIT A-3


 


FORM OF CLASS C NOTE


 


[NTD:  TO BE IDENTICAL TO EXHIBIT A-1, MUTATIS MUTANDIS]


 






Indenture (Exhibit A-3)





  











  






EXHIBIT A-4


 


FORM OF CLASS D NOTE


 


[NTD:  TO BE IDENTICAL TO EXHIBIT A-1, MUTATIS MUTANDIS]


 






Indenture (Exhibit A-4)





  











  






EXHIBIT B


 


Form of Rule 15Ga-1 Information Report


 


 


1


Exhibit B Form of Rule 15Ga-1 Information Report