Exhibit
10.111


 




 





FIRST INVESTORS AUTO
OWNER TRUST 2003-A


As Issuer,


 


WELLS FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION


As Indenture Trustee and
Custodian


 












 


INDENTURE


Dated as of November 20,
2003


 












 


$139,661,000  2.58% Class A Asset-Backed Notes


$5,065,890.91 Class B
Asset-Backed Notes




 





 

















 


TABLE OF CONTENTS


 


	
  Article
  I 

  	
  Definitions

  	
   

  
	
   

  	
  Section 1.1.

  	
  Definitions.

  	
   

  
	
   

  	
  Section 1.2.

  	
  Rules of Construction.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article
  II 

  	
  The
  Notes

  	
   

  
	
   

  	
  Section 2.1.

  	
  Form.

  	
   

  
	
   

  	
  Section 2.2.

  	
  Execution, Authentication and Delivery.

  	
   

  
	
   

  	
  Section 2.3.

  	
  Temporary Class A Notes.

  	
   

  
	
   

  	
  Section 2.4.

  	
  Tax Treatment.

  	
   

  
	
   

  	
  Section 2.5.

  	
  Registration; Registration of Transfer and
  Exchange.

  	
   

  
	
   

  	
  Section 2.6.

  	
  Mutilated, Destroyed, Lost or Stolen Notes.

  	
   

  
	
   

  	
  Section 2.7.

  	
  Persons Deemed Owners.

  	
   

  
	
   

  	
  Section 2.8.

  	
  Payments of Interest and Principal.

  	
   

  
	
   

  	
  Section 2.9.

  	
  Cancellation.

  	
   

  
	
   

  	
  Section 2.10.

  	
  Release of
  Collateral.

  	
   

  
	
   

  	
  Section 2.11.

  	
  Book-Entry.

  	
   

  
	
   

  	
  Section 2.12.

  	
  Notices to
  Clearing Agency.

  	
   

  
	
   

  	
  Section 2.13.

  	
  Definitive Notes.

  	
   

  
	
   

  	
  Section 2.14.

  	
  Authenticating
  Agents.

  	
   

  
	
   

  	
  Section
  2.15.

  	
  Restrictions
  on Transfers of Class A Notes.

  	
   

  
	
   

  	
  Section
  2.16.

  	
  Restrictions
  on Transfers of Class B Notes.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article III 

  	
  Covenants

  	
   

  
	
   

  	
  Section 3.1.

  	
  Payment Covenant.

  	
   

  
	
   

  	
  Section
  3.2.

  	
  Maintenance
  of Office or Agency.

  	
   

  
	
   

  	
  Section
  3.3.

  	
  Money
  for Payments to be Held in Trust.

  	
   

  
	
   

  	
  Section 3.4.

  	
  Existence.

  	
   

  
	
   

  	
  Section 3.5.

  	
  Protection of
  Trust Estate.

  	
   

  
	
   

  	
  Section 3.6.

  	
  Opinions as
  to Trust Estate.

  	
   

  
	
   

  	
  Section 3.7.

  	
  Performance of
  Obligations.

  	
   

  
	
   

  	
  Section 3.8.

  	
  Negative Covenants.

  	
   

  
	
   

  	
  Section
  3.9.

  	
  Annual
  Statement as to Compliance.

  	
   

  
	
   

  	
  Section 3.10.

  	
  Issuer May Not
  Merge.

  	
   

  
	
   

  	
  Section 3.11.

  	
  [Reserved].

  	
   

  
	
   

  	
  Section 3.12.

  	
  Successor.

  	
   

  
	
   

  	
  Section 3.13.

  	
  Servicer’s
  Obligation.

  	
   

  
	
   

  	
  Section 3.14.

  	
  Guarantees, Loans, Advances and Other
  Liabilities.

  	
   

  
	
   

  	
  Section 3.15.

  	
  Capital
  Expenditures.

  	
   

  
	
   

  	
  Section 3.16.

  	
  Restricted Payments.

  	
   

  
	
   

  	
  Section
  3.17.

  	
  Notice of
  Events of Default.

  	
   

  
	
   

  	
  Section 3.18.

  	
  Removal of
  Administrator.

  	
   

  
	
   

  	
  Section
  3.19.

  	
  Further
  Instruments and Acts.

  	
   

  
					



 


i

















 


	
   

  	
  Section 3.20.

  	
  Rule 144A
  Information.

  	
   

  
	
   

  	
  Section
  3.21.

  	
  Perfection
  Representations, Warranties and Covenants.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article
  IV

  	
  Satisfaction
  and Discharge

  	
   

  
	
   

  	
  Section
  4.1.

  	
  Satisfaction
  and Discharge of Indenture.

  	
   

  
	
   

  	
  Section 4.2.

  	
  Satisfaction, Discharge and Defeasance of
  the Notes.

  	
   

  
	
   

  	
  Section 4.3.

  	
  Application of Trust Money.

  	
   

  
	
   

  	
  Section
  4.4.

  	
  Repayment
  of Monies Held by Paying Agent.

  	
   

  
	
   

  	
  Section
  4.5.

  	
  Continuing
  Obligations of Indenture Trustee.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article
  V

  	
  Remedies

  	
   

  
	
   

  	
  Section 5.1.

  	
  Events of Default.

  	
   

  
	
   

  	
  Section
  5.2.

  	
  Acceleration
  of Maturity; Rescission and Annulment.

  	
   

  
	
   

  	
  Section
  5.3.

  	
  Collection
  of Indebtedness and Suits for Enforcement by Indenture Trustee

  	
   

  
	
   

  	
  Section 5.4.

  	
  Remedies.

  	
   

  
	
   

  	
  Section
  5.5.

  	
  Optional
  Preservation of the Contracts.

  	
   

  
	
   

  	
  Section 5.6.

  	
  Limitation of Suits.

  	
   

  
	
   

  	
  Section
  5.7.

  	
  Unconditional
  Rights of Noteholders to Receive Principal and Interest.

  	
   

  
	
   

  	
  Section
  5.8.

  	
  Restoration
  of Rights and Remedies.

  	
   

  
	
   

  	
  Section
  5.9.

  	
  Rights
  and Remedies Cumulative Rights.

  	
   

  
	
   

  	
  Section
  5.10.

  	
  Delay or
  Omission Not a Waiver.

  	
   

  
	
   

  	
  Section 5.11.

  	
  Control by
  Noteholders.

  	
   

  
	
   

  	
  Section 5.12.

  	
  Waiver of Past
  Defaults.

  	
   

  
	
   

  	
  Section 5.13.

  	
  Undertaking for
  Costs.

  	
   

  
	
   

  	
  Section
  5.14.

  	
  Waiver
  of Stay or Extension Laws.

  	
   

  
	
   

  	
  Section 5.15.

  	
  Action on Notes.

  	
   

  
	
   

  	
  Section
  5.16.

  	
  Performance
  and Enforcement of Certain Obligations.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article
  VI

  	
  The
  Indenture Trustee

  	
   

  
	
   

  	
  Section 6.1.

  	
  Duties of
  Indenture Trustee.

  	
   

  
	
   

  	
  Section 6.2.

  	
  Rights of
  Indenture Trustee.

  	
   

  
	
   

  	
  Section
  6.3.

  	
  Individual
  Rights of Indenture Trustee.

  	
   

  
	
   

  	
  Section
  6.4.

  	
  Indenture
  Trustee’s Disclaimer.

  	
   

  
	
   

  	
  Section 6.5.

  	
  Notice of Default.

  	
   

  
	
   

  	
  Section
  6.6.

  	
  Reports
  by Indenture Trustee to Holders.

  	
   

  
	
   

  	
  Section 6.7.

  	
  Compensation
  and Indemnity.

  	
   

  
	
   

  	
  Section
  6.8.

  	
  Replacement
  of Indenture Trustee.

  	
   

  
	
   

  	
  Section
  6.9.

  	
  Appointment
  of Co-Indenture Trustee.

  	
   

  
	
   

  	
  Section
  6.10.

  	
  Eligibility;
  Disqualification.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VII

  	
  Noteholders’ Lists and Reports

  	
   

  
	
   

  	
  Section 7.1.

  	
  Issuer to Furnish Indenture Trustee Names
  and Addresses of Noteholders.

  	
   

  
	
   

  	
  Section 7.2.

  	
  Preservation of Information; Communications
  to Noteholders.

  	
   

  
	
   

  	
  Section 7.3.

  	
  Fiscal Year.

  	
   

  
						



 


ii

















 


	
  Article VIII

  	
  Accounts, Disbursements and Releases

  	
   

  
	
   

  	
  Section 8.1.

  	
  Collection of Money Collection.

  	
   

  
	
   

  	
  Section 8.2.

  	
  Trust Accounts.

  	
   

  
	
   

  	
  Section 8.3.

  	
  General Provisions Regarding Accounts.

  	
   

  
	
   

  	
  Section 8.4.

  	
  Release of Trust Estate.

  	
   

  
	
   

  	
  Section 8.5.

  	
  Opinion of Counsel.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article
  IX

  	
  Supplemental
  Indentures

  	
   

  
	
   

  	
  Section 9.1.

  	
  Supplemental Indentures Without Consent of
  Noteholders.

  	
   

  
	
   

  	
  Section 9.2.

  	
  Supplemental Indentures with Consent of
  Noteholders.

  	
   

  
	
   

  	
  Section 9.3.

  	
  Execution of Supplemental Indentures.

  	
   

  
	
   

  	
  Section 9.4.

  	
  Effect of Supplement Indenture.

  	
   

  
	
   

  	
  Section 9.5.

  	
  Reference in Notes to Supplemental
  Indentures.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article
  X

  	
  Redemption
  of Notes

  	
   

  
	
   

  	
  Section 10.1.

  	
  Redemption.

  	
   

  
	
   

  	
  Section 10.2.

  	
  Form of Redemption Notice.

  	
   

  
	
   

  	
  Section 10.3.

  	
  Notes Payable on Redemption Date.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Article
  XI

  	
  Miscellaneous

  	
   

  
	
   

  	
  Section 11.1.

  	
  Compliance Certificates and Opinions, etc.

  	
   

  
	
   

  	
  Section 11.2.

  	
  Form of Documents Delivered to Indenture
  Trustee.

  	
   

  
	
   

  	
  Section 11.3.

  	
  Acts of Noteholders.

  	
   

  
	
   

  	
  Section 11.4.

  	
  Notices, etc, to Indenture Trustee.

  	
   

  
	
   

  	
  Section 11.5.

  	
  Notices to Noteholders; Waiver Notices to
  Noteholders.

  	
   

  
	
   

  	
  Section 11.6.

  	
  Alternate Payment and Notice Provisions.

  	
   

  
	
   

  	
  Section 11.7.

  	
  Effect of Headings and Table of Contents.

  	
   

  
	
   

  	
  Section 11.8.

  	
  Successors and Assigns.

  	
   

  
	
   

  	
  Section 11.9.

  	
  Severability.

  	
   

  
	
   

  	
  Section 11.10.

  	
  Benefits of Indenture.

  	
   

  
	
   

  	
  Section 11.11.

  	
  Legal Holiday.

  	
   

  
	
   

  	
  Section 11.12.

  	
  Governing Law.

  	
   

  
	
   

  	
  Section 11.13.

  	
  Counterparts.

  	
   

  
	
   

  	
  Section 11.14.

  	
  Recording of Indenture.

  	
   

  
	
   

  	
  Section 11.15.

  	
  Trust Obligation.

  	
   

  
	
   

  	
  Section 11.16.

  	
  No Petition.

  	
   

  
	
   

  	
  Section 11.17.

  	
  Inspection.

  	
   

  
	
   

  	
  Section 11.18.

  	
  Certain Matters Regarding the Insurer.

  	
   

  
	
   

  	
  Section 11.19.

  	
  Acknowledgment of Multiple Roles.

  	
   

  
					



 


iii

















 


	
  Schedules

  	
   

  
	
   

  	
   

  
	
  Schedule
  A

  	
  Perfection
  Representations, Warranties and Covenants

  



 


	
  Exhibits

  	
   

  
	
   

  	
   

  
	
  Exhibit A-1

  	
  Form of Class
  A Notes

  
	
  Exhibit A-2

  	
  Form of Class
  B Notes

  
	
  Exhibit
  B

  	
  Request for
  Release of Contract

  



 


iv

















 


INDENTURE, dated as of November 20, 2003 (as amended,
supplemented or otherwise modified and in effect from time to time, this “Indenture”),
between FIRST INVESTORS AUTO OWNER TRUST 2003-A, a Delaware statutory trust
(the “Issuer”),
and WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity but solely as indenture trustee and
as custodian (in such capacities, the “Indenture Trustee” and the “Custodian”).


 


Each party agrees as follows for the benefit of the
other party and for the benefit of the Noteholders:


 


GRANTING CLAUSE


 


The Issuer hereby Grants to the Indenture Trustee on
the Closing Date, for the benefit of the Noteholders and the Insurer, all of
the Issuer’s right, title and interest in, to and under, whether now owned or
existing or hereafter acquired or arising (i) the Contracts listed in the
Contract Schedule as of the Closing Date (the “Initial Contracts”) and
the Additional Contracts; (ii) all amounts received on or in respect of the
Contracts after the applicable Cutoff Dates (except interest received which
accrued before such Cutoff Dates); (iii) the security interests in the Financed
Vehicles granted by the Obligors pursuant to the Contracts; (iv) all proceeds
from claims on or refunds of premiums with respect to any physical damage,
credit life or credit disability insurance policies covering the Financed
Vehicles or the Obligors; (v) any Liquidation Proceeds; (vi) all of the
Issuer’s rights to the Contract Files; (vii) the Collection Account, the
Reserve Account, the Prefunding Account, the Class A Note Payment Account and
the Class B Note Payment Account and all amounts, securities, financial assets,
investments and other property deposited in or credited to any of the foregoing
and all proceeds thereof; (viii) all of the Issuer’s rights under the Sale and
Allocation Agreement, the Contribution Agreement and the Servicing Agreement,
including the right of the Issuer to cause the Depositor, Seller or the
Servicer, as applicable, to repurchase Contracts from the Issuer and (ix) all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the “Collateral”).


 


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


 


The Indenture Trustee, as Indenture Trustee on behalf
of the Noteholders, 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 Noteholders and the Insurer may be adequately and effectively
protected.


 


Article I


 


Definitions


 


Section
1.1.           Definitions.


 


(a)           Except
as otherwise specified herein or as the context may otherwise require, the
following terms shall have the respective meanings set forth below for all
purposes of this Indenture.


 


Act:  As defined in Section 11.3(a).


 


Administration Agreement:  The Administration Agreement, dated as of
the date hereof, by and among the Administrator, the Issuer and the Indenture
Trustee, as the same may from time to time be amended, supplemented or
otherwise modified and in effect.


 


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


 


Authenticating Agent:  As defined in Section 2.14.


 


Authorized Officer:  With respect to the Issuer, any officer of
the Owner Trustee who is authorized to act for or on behalf of the Owner
Trustee in matters relating to the Issuer 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, for so long as the Administration Agreement is in full
force and effect, any officer of the Administrator who is authorized to act for
the Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement.


 


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


 


Certificate of Trust:  As defined in the Trust Agreement.


 


Certificate Registrar:  As defined in the Trust Agreement.


 


Class A Holder or Class A
Noteholder:  The Person in whose name
a Class A Note is registered in the Note Register.


 


Class A Notes:  The Class A Asset-Backed Notes issued by the
Issuer pursuant to this Indenture in the initial aggregate principal amount of
$139,661,000.


 


Class A Note Payment Account:  As defined in the Sale and Allocation
Agreement.


 


2

















 


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


 


Class B Notes:  The Class B Asset-Backed Notes issued by the
Issuer pursuant to this Indenture in the initial aggregate principal amount of
$5,065,890.91.


 


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


 


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


 


Closing Date:  November 20, 2003.


 


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


 


Collateral:  As defined in the Granting Clause of
this Indenture.


 


Commission:  The Securities and Exchange Commission.


 


Custodian:  Wells Fargo Bank Minnesota, National Association, not in its
individual capacity but solely as custodian, as specified herein.


 


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


 


Definitive Notes:  As defined in Section 2.11.


 


Depositor:  As defined in the Trust Agreement.


 


Depositor Account:  As defined in the Trust Agreement.


 


Event of Default:  As defined in Section 5.1.


 


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


 


Exchange Act:  The Securities Exchange Act of 1934, as
amended.


 


Executive Officer:  With respect to any corporation, the Chief
Executive Officer, the Chief Operating Officer, the Chief Financial Officer,
the President, any Executive Vice President, any Senior Vice President, any
Vice President, the Secretary or the Treasurer of such corporation and with
respect to any partnership, any general partner of such partnership.


 


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


 


3

















 


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


 


Final Note Payment Date:  April 20, 2011.


 


First Investors:  First Investors Financial Services, Inc.


 


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


 


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


 


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


 


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


 


Holder or Noteholder:  A Class A Holder or Class B Holder or a Class
A Noteholder or Class B Noteholder, respectively.


 


Indemnification Agreement:  The Indemnification Agreement dated as of
November 13, 2003 among the Insurer, the Seller and Wachovia Capital Markets.


 


Indenture Trustee:  Wells Fargo Bank Minnesota, National
Association, a national banking association, not in its individual capacity but
solely as Indenture Trustee under this Indenture, and any successor indenture
trustee under this Indenture.


 


Independent:  When used with respect to any specified
Person, that such Person (i) is in fact independent of the Trust, any other
obligor on the Notes, the Seller, the Servicer and any Affiliate of any of the
foregoing Persons, (ii) does not have any direct financial interest or any
material indirect financial interest in the Trust, any such other obligor, the
Seller, the Servicer or any Affiliate (other than a special purpose
securitization vehicle whose rating is based in part on its being
bankruptcy-remote) of any of the foregoing Persons and (iii) is not connected with
the Trust, any such other obligor, the Seller, the Servicer or any Affiliate of
any of the foregoing Persons as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.


 


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


 


Independent Certificate:  A certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.1, made by an
Independent appraiser or other expert appointed by an Issuer Order and


 


4

















 


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.


 


Initial Contracts:  As defined in the Granting Clause.


 


Initial Cutoff Date:  October 31, 2003.


 


Insolvency Event:  (i) the entry against the Insurer of a decree
or order by a court or agency or supervisory authority having jurisdiction in
the premises for the appointment of a trustee, conservator, receiver or
liquidator in any insolvency, conservatorship, receivership, readjustment of
debt, marshalling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of the Insurer’s affairs, and the continuance of any
such decree or under unstayed and in effect or (ii) the consent by the Insurer
to the appointment of a trustee, conservator, receiver or liquidator in any
insolvency, conservatorship, receivership, readjustment of debt, marshalling of
assets and liabilities or similar proceedings of or relating to such Insurer as
of or relating to substantially all of its property, or such Insurer shall
admit in writing its liability to pay its debts generally as they become due,
file a petition (or have one filed against such Insurer) to take advantage of
any applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or suspend (voluntarily or involuntarily) payment of
its obligations.


 


Issuer:  First Investors Auto Owner Trust 2003-A or any successor to First
Investors Auto Owner Trust 2003-A.


 


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


 


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


 


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


 


Losses:  As defined in Sections 6.7(a) and 6A.3(d).


 


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


 


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


 


Note Depository Agreement:  The agreement dated as of November 19, 2003,
among the Issuer, the Indenture Trustee and The Depository Trust Company, as
the initial Clearing Agency, relating to the Class A Notes.


 


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


 


5

















 


Note Owner:  With respect to any Class A Noteholder of a
Book-Entry Note, the Person who is the beneficial owner of such Book-Entry Note
as reflected on the books of the Clearing Agency or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with the
rules of such Clearing Agency).


 


Note Rate:  2.58% per annum.


 


Note Register:  As defined in Section 2.5.


 


Note Registrar:  As defined in Section 2.5.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6

















 


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


 


Owner Trustee:  Deutsche Bank Trust Company Delaware, a
Delaware banking corporation, not in its individual capacity but solely as
Owner Trustee under the Trust Agreement, and any successor owner trustee under
the Trust Agreement.


 


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


 


Predecessor Note:  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.  Any Note
authenticated and delivered under Section 2.6 in lieu of a mutilated,
lost, destroyed or stolen Note shall be deemed, for purposes of this
definition, to evidence the same debt as the mutilated, lost, destroyed or
stolen Note.


 


Prefunding Account Ending Date:  March 31, 2004.


 


Prefunding Account Payout Date:  The Payment Date in April 2004.


 


Premium Side Letter Agreement:  As defined in the Insurance Agreement.


 


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


 


Purchase Agreement:  That Purchase Agreement, dated November 13,
2003, among the Issuer, the Seller and Wachovia Capital Markets.


 


Re-Liening Trigger:  The occurrence of any Event of Default.


 


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


 


7

















 


Redemption Date:  The Payment Date specified by the Servicer
pursuant to Section 10.1 on which date the Indenture Trustee shall
withdraw any amount remaining in the Reserve Account and deposit the portion of
such amount payable to the Noteholders in the Note Payment Account.


 


Redemption Price:  In the case of a redemption of Notes
pursuant to Section 10.1, an amount equal to the unpaid principal amount
of the Notes redeemed plus accrued and unpaid interest thereon.


 


Rule 144A:  Rule 144A under the Securities Act of 1933, as amended.


 


Rule 144A Information:  Such information as is specified pursuant to
Rule 144A(d)(4) under the Securities Act (or any successor provision thereto).


 


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


 


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


 


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


 


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


 


Successor Servicer:  As defined in the Servicing Agreement.


 


Transaction Documents:  The Servicing Agreement, the Sale and
Allocation Agreement, the Contribution Agreement, the Premium Side Letter
Agreement, the Trust Agreement, the Indemnification Agreement, the Certificate
of Trust, this Indenture, the Administration Agreement, the Purchase Agreement,
the Note Depository Agreement, the Insurance Agreement, the Policy, the
Guaranty and the other documents and certificates delivered in connection
therewith, in each case as the same may from time to time be amended, supplemented
or otherwise modified and in effect.


 


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


 


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


 


Wachovia Capital Markets:  Wachovia Capital Markets, LLC.


 


(b)           Except
as otherwise specified herein or as the context may otherwise require,
capitalized terms used but not otherwise defined herein have the respective
meanings set forth in,


 


8

















 


or incorporated by reference into, the Sale and
Allocation Agreement for all purposes of this Indenture.


 


Section
1.2.           Rules of
Construction.


 


Unless the context otherwise requires:


 


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


 


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


 


(c)           “or”
is not exclusive;


 


(d)           “including”
means including without limitation;


 


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


 


(f)            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; and


 


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


 


Article II


 


The Notes


 


Section
2.1.           Form.


 


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


 


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


 


9

















 


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


 


Section
2.2.           Execution,
Authentication and Delivery.


 


(a)           The
Notes shall be executed on behalf of the Issuer by any of its Authorized
Officers.  The signatures of any such
Authorized Officer on the Notes may be manual or facsimile.


 


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


 


(c)           The
Indenture Trustee shall, upon Issuer Order, authenticate and deliver the Class
A Notes and the Class B Notes for original issue in an aggregate principal
amount of $139,661,000 and $5,065,890.91 respectively.  The Class A Note Balance and the Class B
Note Balance at any time may not exceed such respective amounts except as
provided in this Indenture.


 


(d)           Each
Note shall be dated the date of its authentication.  The Notes shall be issuable as registered Notes in minimum
denominations of $250,000 and integral multiples of $1,000 in excess thereof.


 


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


 


Section
2.3.           Temporary
Class A Notes.


 


(a)           Pending
the preparation of Definitive Notes, if Definitive Notes are to be prepared in
accordance with Section 2.13, the Issuer may execute, and upon receipt of
an Issuer Order the Indenture Trustee shall authenticate and deliver, temporary
Notes that are printed, lithographed, typewritten, mimeographed or otherwise
produced of the tenor of the Definitive Notes in lieu of which they are issued
and with such variations not inconsistent with the terms of this Indenture as
the officers executing such Notes may determine, as evidenced by their
execution of such Notes.


 


(b)           If
temporary Class A Notes are issued, the Issuer shall cause Definitive Notes to
be prepared without unreasonable delay. 
After the preparation of Definitive Notes in accordance with Section
2.13, the temporary Class A Notes shall be exchangeable for Definitive
Notes upon surrender of the temporary Class A Notes at the office or agency of
the Issuer to be maintained as provided in Section 3.2, without charge
to the Class A Holder.  Upon surrender
for cancellation of any one or more temporary Class A Notes, the Issuer shall
execute, and the


 


10

















 


Indenture Trustee shall authenticate and deliver in
exchange therefor, a like principal amount of Definitive Notes of authorized
denominations.  Until so exchanged, the
temporary Class A Notes shall in all respects be entitled to the same benefits
under this Indenture as Definitive Notes.


 


Section
2.4.           Tax
Treatment.


 


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


 


Section
2.5.           Registration;
Registration of Transfer and Exchange.


 


(a)           The
Issuer shall cause to be kept a register (the “Note Register”) in
which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Notes and the registration of transfers
of Notes.  The Indenture Trustee
initially shall be the registrar (the “Note Registrar”) for the purpose of
registering Notes and transfers of Notes as herein provided.  Upon any resignation of any Note Registrar,
the Issuer shall promptly appoint a successor or, if it elects not to make such
an appointment, assume the duties of Note Registrar.  In addition, the Indenture Trustee hereby accepts its appointment
as Certificate Registrar, as defined in and pursuant to Section 3.4 of the
Trust Agreement.


 


(b)           If
a Person other than the Indenture Trustee is appointed by the Issuer as Note
Registrar, (i) the Issuer shall give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of the location, or any
change in the location, of the Note Register, (ii) the Indenture Trustee shall
have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof and (iii) the Indenture Trustee shall have the right to
rely upon a certificate executed on behalf of the Note Registrar by an
Executive 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 office or agency of
the Issuer to be maintained as provided in Section 3.2, if the
requirements of Section 8-401 of the Relevant UCC are met, the Issuer shall
execute, and the Indenture Trustee shall authenticate and deliver to the
Noteholder making such surrender, in the name of the designated transferee or
transferees, one or more new Notes in any authorized denomination, of a like
aggregate principal amount.  The
Indenture Trustee may rely upon the Administrator with respect to the
determination of whether the requirements of Section 8-401 of the Relevant UCC
are met.


 


(d)           At
the option of the Noteholder, Notes may be exchanged for other Notes of the
same class in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or
agency.  Whenever any Notes are so
surrendered for exchange, if the requirements of Section 8-401 the Relevant UCC
are met, the Issuer shall execute, and the Indenture Trustee shall authenticate
and deliver to the Noteholder making such exchange, the Notes which such
Noteholder is entitled to receive.  The
Indenture


 


11

















 


Trustee may rely upon the Administrator with respect
to the determination of whether the requirements of Section 8-401 of the
Relevant UCC are met.


 


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


 


(f)            All
Notes presented or surrendered for registration of transfer or exchange shall
be duly endorsed by, or be accompanied by a written instrument of transfer in
the form of the Assignment attached to Exhibit A-1 or Exhibit A-2,
as the case may be, satisfactory to the Indenture Trustee duly executed by, the
Holder thereof or such Holder’s attorney duly authorized in writing, with such
signature guaranteed by an “eligible guarantor institution” meeting the
requirements of the Note Registrar.


 


(g)           No
service charge shall be made to a Holder for any registration of transfer or
exchange of Notes, but the Issuer may require payment by such Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.3 or 9.5 not involving any
transfer.


 


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


 


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


 


(a)           If
(i) any mutilated Note is surrendered to the Indenture Trustee, or the
Indenture Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, and (ii) there is delivered to the Indenture Trustee
such security or indemnity as may be required by it to hold the Issuer and the
Indenture Trustee harmless, then, in the absence of notice to the Issuer, the
Note Registrar or the Indenture Trustee that such Note has been acquired by a
protected purchaser, and provided that the requirements of Section 8-405 of the
Relevant UCC are met, the Issuer shall execute and the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note ; provided,
however, that if any such destroyed, lost or stolen Note, but not a
mutilated Note, shall have become or within seven (7) days of the Indenture
Trustee’s receipt of evidence to its satisfaction of such destruction, loss or
theft shall be due and payable, or shall have been called for redemption in
whole pursuant to Section 10.1, instead of issuing a replacement Note ,
the Issuer may pay such destroyed, lost or stolen Note when so due or payable
or upon the Redemption Date without surrender thereof.  The Indenture Trustee may rely upon the
Administrator with respect to the determination of whether the requirements of
Section 8-405 of the Relevant UCC are met. 
If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a protected purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer
and the Indenture Trustee shall be entitled to recover such replacement Note
(or such payment) from the Person to whom such replacement Note was delivered
or any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any


 


12

















 


assignee of such Person, except a protected purchaser,
and shall be entitled to recover upon the security or indemnity provided therefor
to the extent of any loss, damage, cost or expense incurred by the Issuer or
the Indenture Trustee in connection therewith.


 


(b)           Upon
the issuance of any replacement Note under this Section 2.6, the Issuer
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 connection with
such issuance and any other reasonable expenses (including the fees and
expenses of the Indenture Trustee) related thereto.


 


(c)           Every
replacement Note issued pursuant to this Section 2.6 in replacement of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.


 


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


 


Section
2.7.           Persons
Deemed Owners.


 


Prior to due presentation of a Note for registration
of transfer, the Issuer, the Indenture Trustee and any agent of the Issuer or
the Indenture Trustee may treat the Person in whose name such Note is
registered in the Note Register (as of the day of determination) as the owner
of such Note for the purpose of receiving payments of principal of and interest
on such Note and for all other purposes whatsoever, whether or not such Note
shall be overdue, and none of the Issuer, the Indenture Trustee or any agent of
the Issuer or the Indenture Trustee shall be affected by any notice to the contrary.


 


Section
2.8.           Payments
of Interest and Principal.


 


(a)           [Reserved.]


 


(b)           The
principal of each Note shall be payable in installments on each Payment Date
(unless the Notes have been declared immediately due and payable in accordance
with Section 5.2 following the occurrence of an Event of Default) in an
aggregate amount equal to the applicable Monthly Note Principal for such
Payment Date in accordance with Section 3.5 of the Sale and Allocation
Agreement.  The outstanding Class A Note
Balance and the outstanding Class B Note Balance shall be due and payable on
the Final Note Payment Date.  On each
Payment Date (unless the Notes have been declared immediately due and payable
in accordance with Section 5.2 following the occurrence of an Event of
Default), upon receipt of instructions from the Servicer pursuant to Section
3.5(d), (e) and (f) of the Sale and Allocation Agreement, the Indenture Trustee
shall:


 


(i)            apply or cause to be
applied the amount on deposit in the Class A Note Payment Account on such Payment
Date to make the following payments in the following order of priority:


 


13

















 


(A)          to the Class A
Noteholders, the Total Note Interest payable for such Payment Date; and


 


(B)           to the Class A
Noteholders, the Class A Monthly Note Principal for that Payment Date until the
principal amount of the Class A Notes has been paid in full.


 


(ii)           apply or cause to be
applied the amount on deposit in the Class B Note Payment Account on such
Payment Date to the Class B Noteholders, for the payment of the Class B Monthly
Note Principal for that Payment Date until the principal amount of the Class B
Notes has been paid in full.


 


(c)           The
principal amount of the Notes, to the extent not previously paid, shall be due
and payable on the Final Note Payment Date.


 


(d)           The
Class A Notes shall accrue interest at 2.58% and such interest shall be due and
payable on each Payment Date.  The Class
B Notes shall not accrue interest. 
Interest on the Class A Notes shall be calculated on the basis a 360-day
year consisting of twelve 30-day months. 
Subject to Section 3.1, any installment of interest or principal,
if any, payable on any Class A Note that is punctually paid or duly provided
for by the Issuer on the applicable Payment Date shall be paid to the Person in
whose name such Note (or one or more Predecessor Notes) is registered on the
related Record Date by check mailed first-class postage prepaid to such
Person’s address as it appears on the Note Register on such Record Date; provided,
however, that, unless Definitive Notes have been issued pursuant to Section
2.13, with respect to Class A Notes registered on the Record Date in the
name of the nominee of the Clearing Agency (initially, such nominee to be Cede
& Co.), payment shall be made by wire transfer in immediately available
funds to the account designated by such nominee, and except for the final
installment of principal payable with respect to such Class A Note on a Payment
Date or on the related Final Note Payment Date (and except for the Redemption
Price for any Note called for redemption in whole pursuant to Section
10.1(a) or (b)), which shall be payable as provided below.  The funds represented by any such checks
returned undelivered shall be held in accordance with Section 3.3.  The Indenture Trustee shall pay all Total
Note Interest for any Payment Date to the Noteholders on the related Record
Date even if a portion of such Total Note Interest relates to an earlier
Payment Date.


 


(e)           All
principal on the Notes and, as to the Class A Notes, interest payments, shall
be made pro rata to the Noteholders of the related class.  The Indenture Trustee shall, before the
Payment Date on which the Issuer expects to pay the final installment of
principal of and, as to the Class A Notes, 
interest on any Note, notify the Holder of such Note as of the related
Record Date of such final installment. 
Such notice shall be mailed or transmitted by facsimile and 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.  Notices in connection with redemption of
Notes shall be mailed to Noteholders as provided in Section 10.2.


 


(f)            Notwithstanding
the foregoing, the entire unpaid principal amount of the Notes shall be due and
payable, if not previously paid, on the date on which the Notes have been


 


14

















 


declared or have automatically become immediately due
and payable in accordance with Section 5.2 following the occurrence of
an Event of Default.  On each Payment
Date following acceleration of the Notes, upon receipt of instructions from the
Servicer pursuant to Section 3.5(d) of the Sale and Allocation Agreement, the
Indenture Trustee shall:


 


(i)            apply or cause to be
applied the amount on deposit in the Class A Note Payment Account on such
Payment Date to make the following payments in the following order of priority:


 


(A)          to the Class A Noteholders,
the Total Note Interest payable for such Payment Date; and


 


(B)           to the Class A
Noteholders, the amount remaining on deposit in the Class A Note Payment
Account on such Payment Date up to the Class A Note Balance.


 


(ii)           following the payment
in full of the entire Class A Note Balance, the Total Note Interest and all
amounts due the Insurer, to pay or cause to be paid the amount on deposit in
the Class B Note Payment Account on such Payment Date to the Class B
Noteholders, the amount remaining on deposit in the Class B Note Payment
Account on such Payment Date up to the Class B Note Balance.


 


Section 2.9.           Cancellation.


 


All Notes surrendered for payment, registration of
transfer, exchange or redemption in whole pursuant to Section 10.1(a) or
(b) shall, if surrendered to any Person other than the Indenture
Trustee, be delivered to the Indenture Trustee and shall be promptly canceled
by the Indenture Trustee.  The Issuer
may at any time deliver to the Indenture Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
canceled by the Indenture Trustee.  No
Notes shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section 2.9, except as expressly permitted by this
Indenture.  All canceled Notes may be
held or disposed of by the Indenture Trustee in accordance with its standard
retention or disposal policy as in effect at the time unless the Issuer shall
direct by an Issuer Order that they be destroyed or returned to it, provided
that such Issuer Order is timely and the Notes have not been previously
disposed of by the Indenture Trustee.


 


Section 2.10.        Release of Collateral.


 


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


 


Section 2.11.        Book-Entry.


 


The Class A Notes, upon original issuance, shall be
issued in the form of typewritten Notes representing the Book-Entry Notes, to
be delivered to The Depository Trust Company, the


 


15

















 


initial Clearing
Agency, by, or on behalf of, the Issuer. 
The Class A Notes representing the Book-Entry Notes shall be registered
initially on the Note Register in the name of Cede & Co., the nominee of
the initial Clearing Agency, and no Note Owner thereof shall receive a
Definitive Note representing such Note Owner’s interest in such Note, except as
provided in Section 2.13. Unless and until definitive, fully registered
Class A Notes (the “Definitive Notes”) have been issued to
such Note Owners pursuant to Section 2.13:


 


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


 


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


 


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


 


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


 


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


 


Section 2.12.        Notices to Clearing Agency.


 


Whenever a notice or other communication to the Class
A Noteholders is required under this Indenture, unless and until Definitive
Notes shall have been issued to such Note Owners pursuant to Section 2.13,
the Indenture Trustee shall give all such notices and communications specified
herein to be given to Class A Noteholders to the Clearing Agency, and shall
have no obligation to such Note Owners.


 


Section 2.13.        Definitive Notes.


 


If (a) the Issuer, the Administrator or the Servicer
advises the Indenture Trustee in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Notes and the Indenture Trustee or the Administrator is unable to
locate a qualified successor, (b) the Administrator, at its option, advises the
Indenture Trustee in writing that it elects to terminate the book-entry system
through the Clearing Agency, (c) at any time the Clearing Agency shall no
longer be registered under the


 


16

















 


Exchange Act, or
other applicable statute or regulation and, in either case, the Administrator
or the Indenture Trustee, as applicable, is unable to appoint a qualified
successor or (d) after the occurrence of an Event of Default or an Event of
Servicing Termination, Note Owners of the Book-Entry Notes representing
beneficial interests aggregating not less than 51% of the principal amount of
such Notes advise the Indenture Trustee and the Clearing Agency in writing that
the continuation of a book-entry system through the Clearing Agency is no
longer in the best interests of such Note Owners, then the Clearing Agency
shall notify all Note Owners and the Indenture Trustee of the occurrence of
such event and of the availability of Definitive Notes to Note Owners
requesting the same.  Upon surrender to
the Indenture Trustee of the typewritten Note representing the Book-Entry Notes
by the Clearing Agency, accompanied by registration instructions, the Issuer
shall execute and the Indenture Trustee shall authenticate the Definitive Notes
in accordance with the instructions of the Clearing Agency.  None of the Issuer, the Note Registrar or
the Indenture Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on, such instructions.  Upon the
issuance of Definitive Notes, the Indenture Trustee shall recognize the Holders
of the Definitive Notes as Noteholders.


 


Section 2.14.        Authenticating Agents.


 


The Indenture Trustee may appoint one or more Persons
(each, an “Authenticating Agent”) with power to act on its behalf
and subject to its direction in the authentication of Notes in connection with
issuance, transfers and exchanges under Sections 2.2, 2.3, 2.5,
2.6 and 2.13, as fully to all intents and purposes as though each
such Authenticating Agent had been expressly authorized by those Sections to
authenticate such Notes.  For all
purposes of this Indenture, the authentication of Notes by an Authenticating
Agent pursuant to this Section 2.14 shall be deemed to be the
authentication of Notes “by the Indenture Trustee.”


 


Any corporation into which any Authenticating Agent
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of any Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, without the
execution or filing of any further act on the part of the parties hereto or
such Authenticating Agent or such successor corporation.


 


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


 


The Administrator agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services.  The provisions of Sections 2.9 and 6.4
shall be applicable to any Authenticating Agent.


 


17

















 


Section 2.15.        Restrictions on Transfers of Class A Notes.


 


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


 


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


 


(c)           Each
purchaser, by its acceptance of its Class A Note, acknowledges that the Class A
Notes are being sold to it pursuant to an exemption from the registration
requirements of the Securities Act.  No
purchaser is purchasing its Class A Notes with a view to resale, distribute or
dispose of in any other manner thereof in violation of the Securities Act.  Each purchaser has had access to such
financial and other information concerning the Issuer and the Class A Notes as
it deemed necessary or appropriate in order to make an informed investment
decision with respect to such purchase of the Class A Notes, including an
opportunity to ask questions of and request information from the Issuer.


 


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


 


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


 


18

















 


NO SALE, PLEDGE OR OTHER TRANSFER OF THIS CLASS A NOTE
SHALL BE MADE UNLESS SUCH SALE, PLEDGE OR OTHER TRANSFER IS (A) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THE CLASS A NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT TO A PERSON THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY
IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR
(C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED AND ANY
APPLICABLE STATE SECURITIES AND BLUE SKY LAWS OR IS MADE IN ACCORDANCE WITH
EACH SUCH ACT AND STATE LAWS. THE INDENTURE TRUSTEE MAY REQUIRE AN OPINION OF
COUNSEL TO BE DELIVERED TO IT IN CONNECTION WITH ANY SALE, PLEDGE OR OTHER
TRANSFER OF THIS CLASS A NOTE PURSUANT TO CLAUSES (A) OR (C) ABOVE.  ALL OPINIONS OF COUNSEL REQUIRED IN
CONNECTION WITH ANY TRANSFER SHALL BE BY COUNSEL REASONABLY ACCEPTABLE TO THE
INDENTURE TRUSTEE.


 


EACH TRANSFEREE OF THIS CLASS A NOTE IS DEEMED TO
REPRESENT AND WARRANT THAT, WITH RESPECT TO THE SOURCE OF FUNDS TO BE USED BY
SUCH TRANSFEREE TO ACQUIRE THIS CLASS A NOTE (THE “SOURCE”) EITHER (A) SUCH
SOURCE IS NOT AN “EMPLOYEE BENEFIT PLAN” (WITHIN THE MEANING OF SECTION 3(3) OF
ERISA), A “PLAN” (WITHIN THE MEANING OF SECTION 4975(E)(1) OF THE CODE) OR A
PLAN THAT IS SUBJECT TO ANY SUBSTANTIALLY SIMILAR PROVISION OF ANY FEDERAL,
STATE OR LOCAL LAW, OR A PERSON USING ASSETS OF ANY SUCH PLAN, OR (B) THE
ACQUISITION AND HOLDING OF THIS CLASS A NOTE BY SUCH SOURCE WILL NOT CONSTITUTE
OR RESULT IN A NONEXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA,
SECTION 4975 OF THE CODE OR ANY SUBSTANTIALLY SIMILAR PROVISION OF ANY FEDERAL,
STATE OR LOCAL LAW.


 


(e)           The
purchaser of a Class A Note or any interest therein understands and agrees and
is deemed to understand and agree by its acceptance of its Class A Note that
the Class A Notes and related documentation may be amended or supplemented from
time to time to modify the restrictions on and procedures for resales and other
transfers of the Class A Notes to reflect any change in applicable law or
regulation (or interpretation thereof) or in practice relating to the resale or
transfer of restricted securities generally.


 


(f)            The
Holders of the Class A Notes and all Note Owners of Class A Notes are bound by,
and are deemed to have notice of, all provisions contained in the Indenture.


 


(g)           The
purchaser of a Class A Note or any interest therein acknowledges and is deemed
to acknowledge by its acceptance of such purchase that the Issuer and others
will rely upon the truth and accuracy of the foregoing acknowledgments,
representations and agreements.  If the
purchaser is acquiring any Class A Notes as a fiduciary or agent for one or
more investor


 


19

















 


accounts, it represents that it has sole investment
discretion with respect to each such account and that it has full power to make
the foregoing acknowledgments, representations and agreements on behalf of each
such account.


 


Section 2.16.        Restrictions on Transfers of Class B Notes.


 


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


 


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


 


THIS NOTE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”) OR ANY STATE SECURITIES OR “BLUE SKY” LAWS.  THE HOLDER HEREOF, BY PURCHASING THIS NOTE,
AGREES THAT THIS NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)
TO AN AFFILIATE OF THE ISSUER, (2) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (3) IN RELIANCE ON AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUBJECT TO THE ISSUER’S AND
THE INDENTURE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. 
ANY NOTEHOLDER WILL, AND EACH SUBSEQUENT NOTEHOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED
TO ABOVE.  THE ISSUER IS NOT OBLIGATED
TO REGISTER THIS NOTE UNDER THE 1933 ACT OR ANY STATE SECURITIES OR BLUE SKY
LAWS.  TRANSFER OF THIS NOTE IS SUBJECT
TO ADDITIONAL TRANSFER RESTRICTIONS CONTAINED IN SECTION 2.16 OF THE
INDENTURE.


 


(c)           No
Class B Note (or any interest therein) may be transferred (including, without
limitation, by pledge or hypothecation) unless such transferee executes and
delivers to the Issuer, the Insurer and the Indenture Trustee a transfer
certificate certifying as to the items set forth in this Section 2.16; provided,
however, that no such transferee may be an employee benefit plan, trust,
annuity or account subject to ERISA or a plan described in Section 4975(E)(1)
of the Code, an indenture trustee of any of the foregoing, or an entity,
account or other pooled investment fund the underlying assets of which include
or are deemed to include assets of any of the foregoing.


 


Upon the transfer of any such Class B Note, the Issuer
shall issue and the Indenture Trustee shall authenticate in the name of the
transferee a new Class B Note of the same aggregate principal amount as the
surrendered Class B Note.


 


(d)           No
transfer of a Class B Note shall be permitted to the extent that such transfer
would result in more than 80 Holders (within the meaning of Treasury Regulation
Section


 


20

















 


1.7704-1(h))of Class B Notes and beneficial interests
in the Issuer in the aggregate.  No
transfer of a Class B Note may be made to any Person (a “pass-through entity”)
that is a partnership (including any other entity treated as a partnership for
income tax purposes), S corporation or grantor trust unless such pass-through
entity is able to represent that the Class B Note represents less than 50% of
the fair market value of all assets of such entity.  Notwithstanding the foregoing, no transfer of a Class B Note
shall made except in accordance with the restrictions set forth in the
Indenture and in the form of Class B Note.


 


Article III


 


Covenants


 


Section 3.1.           Payment Covenant.


 


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


 


Section 3.2.           Maintenance of Office or Agency.


 


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


 


Section 3.3.           Money for Payments to be Held in Trust.


 


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


 


(b)           On
or before each Payment Date and Redemption Date, the Issuer shall deposit or
cause to be deposited in the applicable Note Payment 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 of its action or failure so to act.


 


21

















 


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


 


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


 


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


 


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


 


(iv)          immediately resign as a
Paying Agent and forthwith pay to the Indenture Trustee all sums held by it in
trust for payment of the 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 and any state or local tax law with respect to the
withholding from any payments made by it on the Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.


 


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


 


(e)           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 (2) years after
such amount has become due and payable shall be discharged from such trust and
be paid to the Issuer on Issuer Request, and the Holder of such Note shall thereafter,
as an unsecured general creditor, look only to the Issuer for payment thereof
(but only to the extent of the amounts so paid to the Issuer), and all
liability of the Indenture 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 direction of the Issuer cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than thirty (30)


 


22

















 


days from the date of such publication, any unclaimed
balance of such money then remaining shall be repaid to the Issuer.  The Indenture Trustee shall also adopt and
employ, at the expense and direction of the Issuer, any other reasonable means
of notification of such repayment (including, but not limited to, mailing
notice of such repayment to Holders whose Notes have been called but have not
been surrendered for redemption in whole pursuant to Section 10.1 or
whose right to or interest in monies due and payable but not claimed is
determinable from the records of the Indenture Trustee or of any Paying Agent
at the last address of record for each such Holder).


 


Section 3.4.           Existence.


 


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


 


Section 3.5.           Protection of Trust Estate.


 


The Issuer shall from time to time execute, if
applicable, and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further assurance
and other instruments, and shall take such other action necessary or advisable
to:


 


(a)           maintain
or preserve the lien and security interest (and the priority thereof) of this
Indenture or carry out more effectively the purposes hereof including, without
limitation, the filing of any financing statement or any amendment to any
existing financing statement necessitated by Section 3.8(d)(iv);


 


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


 


(c)           enforce
any of the Collateral; or


 


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


 


The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute upon a written instruction from the Issuer, the
Insurer or Servicer any financing statement, continuation statement or other
instrument required to be executed pursuant to this Section 3.5.


 


Section 3.6.           Opinions as to Trust Estate.


 


(a)           On
the Closing Date, the Issuer shall deliver to the Indenture Trustee and the
Insurer an Opinion of Counsel reasonably acceptable to such parties either
stating that, in the


 


23

















 


opinion of such counsel, such action has been taken
with respect to this Indenture and other requisite documents and with respect
to the execution and filing of any financing statements and continuation
statements, as are necessary to perfect and make effective the first priority
lien and security interest in favor of the Indenture Trustee, created by this
Indenture and reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such lien and
security interest effective.


 


(b)           On
or before March 31 of each year (commencing with the year 2004), the Issuer
shall deliver to the Indenture Trustee and the Insurer an Opinion of Counsel
acceptable to such parties either stating that, in the opinion of such counsel,
such action has been taken with respect to the recording, filing, re-recording
and refiling of this Indenture, any indentures supplemental hereto and any
other requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as is necessary to maintain
the lien and security interest created by this Indenture and reciting the
details of such action or stating that, in the opinion of such counsel, no such
action is necessary to maintain such lien and security interest.  Such Opinion of Counsel shall also describe
the recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents and the
execution and filing of any financing statements and continuation statements
that shall, in the opinion of such counsel, be required to maintain the lien and
security interest of this Indenture until March 31 in the following year.


 


Section 3.7.           Performance of Obligations.


 


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


 


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


 


(c)           The
Issuer shall punctually perform and observe all of its obligations and
agreements contained in this Indenture, the other Transaction Documents to
which it is a party and the instruments and agreements included in the Trust
Estate, including, but not limited to, filing or causing to be filed all
financing statements and continuation statements required to be filed under the
Relevant UCC by the terms of this Indenture and the Servicing Agreement in
accordance with and within the time periods provided for herein and
therein.  Except as otherwise expressly
provided therein, the Issuer shall not waive, amend, modify, supplement or
terminate any Transaction Document or any provision thereof without the consent
of the Indenture Trustee, the Insurer or the Noteholders evidencing not less
than 51% of the Note Balance.


 


24

















 


(d)           If
the Issuer shall have knowledge of the occurrence of an Event of Servicing
Termination under the Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee, the Insurer and the Rating Agencies thereof and shall
specify in such notice the action, if any, the Issuer is taking in respect of
such default.  If an Event of Servicing
Termination shall arise from the failure of the Servicer to perform any of its
duties or obligations under the Servicing Agreement with respect to the
Contracts, the Issuer shall take all reasonable steps available to it to remedy
such failure.


 


(e)           [Reserved.]


 


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


 


(g)           Without
derogating from the absolute nature of the assignment granted to the Indenture
Trustee under this Indenture or the rights of the Indenture Trustee hereunder,
the Issuer shall not, without the prior written consent of the Insurer (if no
Insurer Default shall have occurred and be continuing), the Indenture Trustee
and the Holders of not less than 51% of the Class A Note Balance, amend,
modify, waive, supplement, terminate or surrender, or agree to any amendment,
modification, waiver, supplement, termination or surrender of, the terms of any
Collateral (except to the extent otherwise permitted in the Servicing Agreement
or the other Transaction Documents).


 


Section 3.8.           Negative Covenants.


 


If any Notes are Outstanding or the Insurer has not
been paid all amounts owed to it, the Issuer shall not:


 


(a)           except
as expressly permitted by this Indenture, the Trust Agreement, the Servicing
Agreement or the Sale and Allocation Agreement, sell, transfer, exchange or
otherwise dispose of any of the properties or assets of the Issuer, including
those included in the Trust Estate, unless directed to do so by the Indenture
Trustee with the prior written consent of the Insurer;


 


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


 


(c)           dissolve
or liquidate in whole or in part;


 


(d)           (i)
permit the validity or effectiveness of this Indenture to be impaired, or
permit the lien of this Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be released from any
covenants or obligations with respect to the Notes under this Indenture except
as may be expressly permitted hereby, (ii) permit any lien, charge, excise,
claim, security interest, mortgage or other encumbrance (other than the lien of
this


 


25

















 


Indenture) to be created on or extend to or otherwise
arise upon or burden the Trust Estate or any part thereof or any interest
therein or the proceeds thereof (other than tax liens, mechanics’ liens and
other liens that arise by operation of law, in each case on any of the Financed
Vehicles and arising solely as a result of an action or omission of the related
Obligor), (iii) permit the lien of this Indenture not to constitute a valid
first priority (other than as set forth in clause (ii)) security interest in
the Trust Estate, or (iv) change its name, identity or state of organization in
any manner that would make any financing statement or continuation statement
filed with respect to it seriously misleading within the meaning of Section
9-507 of the UCC, or cause any financing statement or continuation statement
filed with respect to it to be amended, without prior written notice to the
Insurer and the Indenture Trustee;


 


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


 


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


 


Section 3.9.           Annual Statement as to Compliance.


 


On or before July 31 of each year (commencing with the
year 2004), the Issuer shall deliver to the Indenture Trustee and the Insurer
an Issuer’s Certificate stating, as to the Authorized Officer signing such
Issuer’s Certificate, that:


 


(a)           a
review of the activities of the Issuer during the preceding Fiscal Year (or, in
the case of the Issuer’s Certificate to be delivered in the year 2004, during
the period beginning on the Closing Date and ending on April 30, 2004) and of
its performance under this Indenture has been made under such Authorized
Officer’s supervision; and


 


(b)           to
the best of such Authorized Officer’s knowledge, based on such review, the
Issuer has complied with all conditions and covenants under this Indenture
throughout such preceding Fiscal Year (or, in the case of the Issuer’s
Certificate to be delivered in the year 2004, during the period beginning on
the Closing Date and ending on April 30, 2004) or, if there has been a default
in its compliance with any such condition or covenant, specifying each such
default known to such Authorized Officer and the nature and status thereof.


 


Section 3.10.        Issuer May Not Merge.


 


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


 


(i)            the Person (if other
than the Issuer) formed by or surviving such consolidation or merger shall be a
Person organized and existing under the laws of the United States of America or
any state thereof and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee, in form satisfactory
to the Indenture Trustee, and prior to the later of (A) the Final Note Payment
Date, and (B) the date on which all amounts due to the Insurer under all of the
Transaction Documents have been paid in full and the due and punctual payment
of the principal of


 


26

















 


and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the part of the
Issuer to be performed or observed, all as provided herein;


 


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


 


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


 


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


 


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


 


(vi)          prior to the later of
(A) the Final Note Payment Date and (B) the date on which all amounts due to
the Insurer under all of the Transaction Document have been paid in full and
the Insurer has given its prior written consent; and


 


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


 


(b)           Prior
to the Final Note Payment Date, the Issuer shall not convey or transfer all or
substantially all of its properties or assets.


 


Section 3.11.        [Reserved].


 


Section 3.12.  Successor.


 


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


 


Section 3.13.        Servicer’s Obligation.


 


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


 


27

















 


Section
3.14.        Guarantees,
Loans, Advances and Other Liabilities.


 


Except as contemplated by the Notes, this Indenture
and the other Transaction Documents, the Issuer shall not make any loan or
advance or credit to, or guarantee (directly or indirectly or by an instrument
having the effect of assuring another’s payment or performance on any
obligation or capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the
obligations, stocks or dividends of, or own, purchase, repurchase or acquire
(or agree contingently to do so) any stock, obligations, assets or securities
of, or any other interest in, or make any capital contribution to, any other Person.


 


Section 3.15.        Capital Expenditures.


 


The Issuer shall not make any expenditure (by
long-term or operating lease or otherwise) for capital assets (either realty or
personalty) except as may be expressly permitted by the Transaction Documents.


 


Section 3.16.        Restricted Payments.


 


The Issuer shall not, directly or indirectly, (a) make
any distribution (by reduction of capital or otherwise), whether in cash,
property, securities or a combination thereof, to the Owner Trustee or any
owner of a beneficial interest in the Issuer or otherwise with respect to any
ownership or equity interest or security in or of the Issuer or to the
Servicer, (b) redeem, purchase, retire or otherwise acquire for value any such
ownership or equity interest or security or (c) set aside or otherwise
segregate any amounts for any such purpose; provided, however,
that the Issuer may make, or cause to be made, (i) payments to the Servicer,
the Indenture Trustee and the Owner Trustee as contemplated by, and to the
extent funds are available for such purpose under, the Sale and Allocation
Agreement, and (ii) payments with respect to the Certificate issued in
accordance with the terms of the Trust Agreement, to the extent funds are
available for such purpose pursuant to Section 3.5(d)(xii) of the Sale and
Allocation Agreement.  The Issuer shall
not, directly or indirectly, make payments to or distributions from the
Collection Account except in accordance with the Sale and Allocation Agreement
and the other Transaction Documents.


 


Section 3.17.        Notice of Events of Default.


 


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


 


Section 3.18.        Removal of Administrator.


 


For so long as any Notes are Outstanding, the Issuer
shall not remove the Administrator without cause unless the Rating Agency
Condition shall have been satisfied in connection therewith and the Insurer has
previously consented in writing.


 


28

















 


Section 3.19.        Further Instruments and Acts.


 


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


 


Section 3.20.        Rule 144A Information.


 


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


 


Section 3.21.        Perfection Representations, Warranties and
Covenants.


 


The perfection representation, warranties and
covenants made by the Issuer and set forth on Schedule A hereto shall be part
of this Indenture for all purposes.


 


Article IV


 


Satisfaction and Discharge


 


Section 4.1.           Satisfaction and Discharge of Indenture.


 


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


 


(i)            either


 


(A)          all Notes theretofore
authenticated and delivered (other than (1) Notes that have been destroyed,
lost or stolen and that have been replaced or paid as provided in Section
2.6 and (2) Notes for whose payment money has theretofore been irrevocably
deposited in trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as provided in Section
3.3) have been delivered to the Indenture Trustee for


 


29

















 


cancellation and the
Policy has expired and has been returned to the Insurer for cancellation; or


 


(B)           all Notes not
theretofore delivered to the Indenture Trustee for cancellation have become due
and payable and the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Indenture Trustee, in trust, cash or direct
obligations of or obligations guaranteed by the United States of America (which
will mature prior to the date needed), in an amount sufficient to pay and
discharge the entire indebtedness on such Notes when due on the Final Note
Payment Date or Redemption Date (if Notes shall have been called for redemption
pursuant to Section 10.1(a)), as the case may be;


 


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


 


(iii)          the Issuer has delivered
to the Indenture Trustee and the Insurer an Issuer’s Certificate, an Opinion of
Counsel and (if required by the Indenture Trustee) an Independent Certificate
from a firm of certified public accountants, each meeting the applicable
requirements of Section 11.1(a) and, subject to Section 11.2,
each stating that all conditions precedent provided for in this Indenture
relating to the satisfaction and discharge of this Indenture have been complied
with; and


 


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


 


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


 


(a)           Upon
satisfaction of the conditions set forth in subsection (b) below, the
Issuer shall be deemed to have paid and discharged the entire indebtedness on
all the Notes Outstanding, and the provisions of this Indenture, as it relates
to such Notes, shall no longer be in effect (and the Indenture Trustee, at the
expense of the Issuer, shall execute proper instruments acknowledging the
same), except as to:


 


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


 


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


 


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


 


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


 


30

















 


(b)           The
satisfaction, discharge and defeasance of the Notes pursuant to subsection
(a) of this Section 4.2 is subject to the satisfaction of all of the
following conditions:


 


(i)            the Issuer has
deposited or caused to be deposited irrevocably (except as provided in Section
4.4) with the Indenture Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Noteholders, which, through the payment of interest and principal in respect
thereof in accordance with their terms will provide, not later than one day
prior to the due date of any payment referred to below, money in an amount
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Indenture Trustee, to pay and discharge the entire
indebtedness on the Notes Outstanding, for principal thereof and interest
thereon to the date of such deposit (in the case of Notes that have become due
and payable) or to the maturity of such principal and interest, as the case may
be;


 


(ii)           such deposit will not
result in a breach or violation of, or constitute an event of default under,
any Transaction Document or other agreement or instrument to which the Issuer
is bound;


 


(iii)          no Event of Default has
occurred and is continuing on the date of such deposit or on the ninety-first
(91st) day after such date;


 


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


 


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


 


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


 


Section
4.3.           Application
of Trust Money.


 


All monies deposited with the Indenture Trustee
pursuant to Section 4.1 shall be held in trust and applied by the
Indenture Trustee, 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 Noteholders for the payment or
redemption of which such monies have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest, but such
monies need not be segregated from other funds except to the extent required
herein or in the Sale and Allocation Agreement or required by law.


 


Section 4.4.           Repayment of Monies Held by Paying Agent.


 


In connection with the satisfaction and discharge of
this Indenture with respect to the Notes, all monies then held by any Paying
Agent other than the Indenture Trustee under the


 


31

















 


provisions of this
Indenture with respect to such Notes shall, upon demand of the Issuer, be paid
to the Indenture Trustee to be held and applied according to Section 3.3,
and thereupon such Paying Agent shall be released from all further liability
with respect to such monies.


 


Section 4.5.           Continuing Obligations of Indenture
Trustee.


 


It is understood that the Indenture Trustee shall
remain obligated to perform its duties to make payments pursuant to Section
3.5(d) of the Sale and Allocation Agreement and Sections 2.8 and 5.4(b)
of this Indenture, notwithstanding anything to the contrary in this Article
IV or elsewhere in this Indenture, until such time as all outstanding
amounts have been paid pursuant to such sections.


 


Article V


 


Remedies


 


Section 5.1.           Events of Default.


 


“Event of Default” means the occurrence
of any one of the following events (whatever the reason for such event and
whether such event 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 Class A Note when the same becomes due
and payable;


 


(b)           default
in the payment of any principal due and payable on the Class A Notes when the
same becomes due and payable on the Final Note Payment Date;


 


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


 


(d)           any
representation or warranty of the Issuer, the Depositor or the Seller made in
the Transaction Documents or in any certificate delivered pursuant hereto or in
connection herewith proving to have been incorrect in any material respect as
of the time when the same shall have been made, and the circumstance or
condition in respect of which such representation or warranty was incorrect
shall not have been eliminated or otherwise cured for a period of thirty (30)
days after there shall have been given, by registered or certified mail, to the
Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee by
the Noteholders evidencing not less than 25% of the Class A Note Balance or the
Insurer (provided that no Insurer Default shall have occurred and be
continuing), a written notice specifying such incorrect representation or


 


32

















 


warranty and requiring it to be remedied and stating
that such notice is a notice of Default hereunder;


 


(e)           the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of the Seller, the Issuer, the Depositor or any substantial
part of the Trust Estate in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial part of
the Trust Estate, or ordering the winding-up or liquidation of the Issuer’s
affairs, and such decree or order shall remain unstayed and in effect for a
period of sixty (60) consecutive days;


 


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


 


(g)           the
merger or consolidation (including any conveyance transaction) of the Issuer
with or into any Person regardless of the surviving entity, except as expressly
permitted hereunder;


 


(h)           [Reserved.];


 


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


 


(j)            an
Event of Servicing Termination shall have occurred under the Servicing
Agreement;


 


(k)           the
Seller shall have defaulted on any payment required to be made by it under any
material credit agreement or other loan agreement pursuant to which it has
borrowed money;


 


(l)            a
draw shall be made under the Policy;


 


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


 


(n)           the
average Delinquency Ratio for any three Collection Periods exceeds 7.0% during
the period commencing on the Closing Date through October 2004 and the
Delinquency Ratio exceeds 8.5% thereafter; and


 


(o)           the
Cumulative Net Loss Rate at any month indicated in the following table shall
exceed the percentage corresponding thereto:


 


33

















 




	
  Month

  	
   

  	
  Cumulative
  Net Loss

  Rate

  	
   

  
	
  November
  2003-December 2003

  	
   

  	
  0.40

  	
  %

  
	
  January 2004

  	
   

  	
  0.80

  	
  %

  
	
  February
  2004-April 2004

  	
   

  	
  1.50

  	
  %

  
	
  May 2004-July 2004

  	
   

  	
  2.70

  	
  %

  
	
  August
  2004-October 2004

  	
   

  	
  3.90

  	
  %

  
	
  November
  2004-January 2005

  	
   

  	
  5.10

  	
  %

  
	
  February
  2005-April 2005

  	
   

  	
  6.25

  	
  %

  
	
  May 2005-July
  2005

  	
   

  	
  7.25

  	
  %

  
	
  August
  2005-October 2005

  	
   

  	
  8.25

  	
  %

  
	
  November
  2005-January 2006

  	
   

  	
  9.00

  	
  %

  
	
  February
  2006-April 2006

  	
   

  	
  9.70

  	
  %

  
	
  May 2006-July
  2006

  	
   

  	
  10.25

  	
  %

  
	
  August
  2006-October 2006

  	
   

  	
  10.70

  	
  %

  
	
  November
  2006-January 2007

  	
   

  	
  11.25

  	
  %

  
	
  February
  2007-April 2007

  	
   

  	
  11.50

  	
  %

  
	
  May 2007-July
  2007

  	
   

  	
  11.75

  	
  %

  
	
  August
  2007-October 2007

  	
   

  	
  12.00

  	
  %

  
	
  November 2007
  and thereafter

  	
   

  	
  12.25

  	
  %

  






 


The Issuer shall deliver to the Indenture Trustee, within five (5) days
after the occurrence of any event that, with notice or the lapse of time or
both, would become an Event of Default under clause (c) or (d),
written notice of such Default in the form of an Issuer’s Certificate, the
status of such Default and what action the Issuer is taking or proposes to take
with respect to such Default.


 


Section 5.2.           Acceleration of Maturity; Rescission and
Annulment.


 


(a)           If
no Insurer Default shall have occurred and be continuing and if an Event of
Default shall have occurred and be continuing, then the Insurer shall have the
right, but not the obligation, upon prior written notice to each Rating Agency,
to declare the Notes to be immediately due and payable by written notice to the
Issuer, the Servicer and the Indenture Trustee, and upon any such declaration
the unpaid principal amount of the Notes, together with accrued and unpaid
interest on the Class A Notes through the date of acceleration, shall become
immediately due and payable.  The
Indenture Trustee shall have no discretion with respect to the acceleration of
the Notes under the foregoing circumstances. 
In the event of any such acceleration of the Notes, the Indenture
Trustee shall continue to make claims under the Policy with respect to the
Class A Notes in accordance with the terms thereof.


 


(b)           If
an Insurer Default has occurred and is continuing and an Event of Default has
occurred and is continuing, then and in every such case the Indenture Trustee
or the Noteholders


 


34

















 


evidencing not less than 66 2/3% of the Class A Note
Balance may, upon prior written notice to each Rating Agency, declare the Notes
to be immediately due and payable by written notice to the Issuer (and to the
Indenture Trustee if given by Class A Noteholders), and upon any such
declaration the unpaid principal amount of the Class A Notes, together with
accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable.


 


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


 


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


 


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


 


(B)           all Events of Default,
other than the nonpayment of the principal of the Class A 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.


 


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


 


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


 


(a)           If
(i) default is made in the payment of any interest on any Class A Note when the
same becomes due and payable, and such default continues for a period of five
(5) Business Days, or (ii) default is made in the payment of the principal of
any Class A Note when the same becomes due and payable, the Issuer shall pay to
the Indenture Trustee, for the benefit of the applicable Noteholders, the
amount then due and payable on the Notes for principal and, if applicable,
interest, with interest upon the overdue principal at the Note Rate and, to the
extent payment at such rate of interest shall be legally enforceable, upon
overdue installments of interest at the Note Rate and in addition thereto such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,


 


35

















 


disbursements and advances of the Indenture Trustee
and its agents and counsel and other amounts due and owing to the Indenture
Trustee pursuant to Section 6.7.


 


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


 


(c)           If
an Event of Default occurs and is continuing, the Indenture Trustee may, as
more particularly provided in Section 5.4, in its discretion, proceed to
protect and enforce its rights and the rights of the Noteholders and the
Insurer by such appropriate Proceedings as the Indenture Trustee shall deem
most effective to protect and enforce 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)           If
there shall be pending, relative to the Issuer or any other obligor upon the
Notes or any Person having or claiming an ownership interest in the Trust
Estate, Proceedings under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or other similar law, or if
a receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor or Person, or if
there shall be pending any other comparable judicial Proceedings relative to
the Issuer or any other obligor upon the Notes, or to the creditors or property
of the Issuer or such other obligor, the Indenture Trustee, irrespective of
whether the principal of any Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Indenture Trustee shall have made any demand pursuant to the provisions of this
Section 5.3, shall be entitled and empowered, by intervention in such
Proceedings or otherwise:


 


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


 


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


 


36

















 


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


 


(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
judicial proceedings relative to the Issuer, its creditors and its property;


 


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


 


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


 


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


 


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


 


Section 5.4.           Remedies.


 


(a)           If
an Event of Default has occurred and is continuing, the Indenture Trustee
shall, at the direction of the Insurer (if no Insurer Default has occurred and
is continuing), or at the direction of the Class A Noteholders evidencing not
less than 66 2/3% of the Class A Note Balance (if an Insurer Default has
occurred and is continuing), take one or more of the following actions as so
directed (subject to Section 5.5):


 


(i)            institute Proceedings
in its own name and as trustee of an express trust for the collection of all
amounts then payable on the Class A Notes or under this Indenture


 


37

















 


with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the Issuer and any
other obligor upon the Notes monies adjudged due;


 


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


 


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


 


(iv)          sell the Trust Estate or
any portion thereof or rights or interest therein at one or more public or
private sales called and conducted in any manner permitted by law;


 


provided, however, that the
Indenture Trustee may not sell or otherwise liquidate the Trust Estate
following an Event of Default unless: (A) if no Insurer Default has occurred
and is continuing, the Insurer so directs 
or consents thereto; or if an Insurer Default has occurred, the Holders
of 100% of the Class A Notes (excluding Class A Notes held by the Depositor,
the Seller, the Servicer or any of their respective Affiliates) consent
thereto; (B) the proceeds of such sale or liquidation are sufficient to pay in
full the Class A Notes and all accrued but unpaid interest on the outstanding
Class A Notes and all amounts due to the Insurer under the Insurance Agreement
and the Policy; or (C) if an Insurer Default has occurred and is continuing,
the Indenture Trustee determines that the Trust Estate will not continue to
provide sufficient funds for the payment of principal of and interest on the
Class A Notes as they would have become due if the Class A Notes had not been
declared due and payable, and the Indenture Trustee obtains the consent of the
Class A Noteholders evidencing not less than 66 2/3% of the Class A Note
Balance (excluding Class A Notes held by the Depositor, the Seller, the
Servicer or any of their respective Affiliates), or (D) if no Insurer Default
has occurred or is continuing, the Insurer makes the determination specified in
clause (C).  In determining such
sufficiency or insufficiency with respect to clauses (B) and (C)
above, the Indenture Trustee may, but need not, obtain and rely upon an opinion
of an Independent investment banking or accounting firm of national reputation
as to the feasibility of such proposed action and as to the sufficiency of the
Trust Estate for such purpose.


 


(b)           If
the Indenture Trustee collects any money or property pursuant to this Section
5.4, it shall pay out such money or property in the following order of
priority:


 


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


 


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


 


(iii)          to the Class A
Noteholders, all accrued but unpaid interest on the Class A Notes;


 


38

















 


(iv)          to the Class A
Noteholders, the outstanding Class A Note Balance;


 


(v)           to the Insurer, all
amounts then owing to it;


 


(vi)          to the Class B
Noteholders, the principal balance of the Class B Notes; and


 


(vii)         to the Depositor Account
any remaining amounts for distribution in accordance with Section 5.2 of
the Trust Agreement.


 


The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 5.4.  At least fifteen (15) days before such
record date, the Issuer shall mail to each Noteholder and the Indenture Trustee
a notice that states the record date, the payment date and the amount to be
paid.


 


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


 


Section 5.5.           Optional Preservation of the Contracts.


 


If the Notes have been declared to be due and payable
under Section 5.2 following an Event of Default, and such declaration
and its consequences have not been rescinded and annulled, the Indenture
Trustee may, but need not, elect to maintain possession of the Trust Estate and
apply proceeds as if there had been no declaration of acceleration; provided,
however, that the Total Available Funds shall be applied in accordance with
such declaration of acceleration in the manner specified in Sections 3.5(d),
(e) and (f) of the Sale and Allocation Agreement.  It is the desire of the parties hereto and the Noteholders that
there be at all times sufficient funds for the payment of principal of and, if
applicable, interest on the Notes, and the Indenture Trustee shall take such
desire into account when determining whether or not to maintain possession of
the Trust Estate.  In determining
whether to maintain possession of the Trust Estate, the Indenture Trustee may,
but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Trust Estate for such purpose.


 


Section 5.6.           Limitation of Suits.


 


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


 


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


 


(b)           the
Noteholders evidencing not less than 25% of the Class A Note Balance 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;


 


39

















 


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


 


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


 


(e)           no
direction inconsistent with such written request has been given to the Indenture
Trustee during such 60-day period by the Noteholders evidencing not less than
51% of the Class A Note Balance; and


 


(f)            an
Insurer Default has occurred and is continuing.


 


It is understood and intended that no one or more
Noteholders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Noteholders or to obtain or to seek to obtain priority
or preference over any other Noteholders or to enforce any right under this
Indenture, except in the manner herein provided.


 


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


 


Section 5.7.           Unconditional Rights of Noteholders to
Receive Principal and Interest.


 


Notwithstanding any other provisions in this
Indenture, the Holder of any Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and, if applicable,
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 the enforcement of any
such payment, and such right shall not be impaired without the consent of such
Holder.


 


Section 5.8.           Restoration of Rights and Remedies.


 


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


 


40

















 


Section 5.9.           Rights and Remedies Cumulative Rights.


 


No right or remedy herein conferred upon or reserved
to the Indenture Trustee, the Insurer or 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, the
Insurer or any Holder of any Note to exercise any right or remedy accruing upon
any Default or Event of Default shall impair any such right or remedy or
constitute a waiver of any such Default or Event of Default or any acquiescence
therein.  Every right and remedy given
by this Article V or by law to the Indenture Trustee, the Insurer or the
Noteholders may be exercised from time to time, and as often as may be deemed
expedient, by the Indenture Trustee, the Insurer or the Noteholders, as the
case may be.


 


Section 5.11.        Control by Noteholders.


 


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


 


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


 


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


 


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


 


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


 


(e)           an
Insurer Default shall have occurred and is continuing.


 


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


 


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Section 5.12.        Waiver of Past Defaults.


 


Prior to the declaration of the acceleration of the
maturity of the Notes as provided in Section 5.2, the Insurer (if no
Insurer Default shall have occurred and be continuing) or the Noteholders
evidencing not less than 51% of the Class A Note Balance, with the consent of
the Insurer (if no Insurer Default shall have occurred and be continuing), may
waive any past Default or Event of Default and its consequences except a
Default or Event of Default (a) in the payment of principal of or interest on
any of the Notes or (b) in respect of a covenant or provision hereof that
cannot be amended, supplemented or modified without the consent of all the
Holders.  Upon any such waiver, the
Issuer, the Indenture Trustee, the Insurer and the Holders shall be restored to
their former positions and rights hereunder, respectively, but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.  Upon any
such waiver, such Default or Event of Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for
every purpose of this Indenture, but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.


 


Section 5.13.        Undertaking for Costs.


 


All parties to this Indenture agree, and each Holder
of any Note by such Holder’s acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the
Indenture Trustee for any action taken, suffered or omitted by it as Indenture
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable 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; provided, however,
that 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 Notes evidencing in the aggregate
more than 10% of the Class A Note Balance or (c) any suit instituted by any
Noteholder for the enforcement of the payment of principal of or, if
applicable, interest on any Note on or after the respective due dates expressed
in such Note and in this Indenture (or, in the case of redemption, on or after
the Redemption Date).


 


Section 5.14.        Waiver of Stay or Extension Laws.


 


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


 


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Section 5.15.        Action on Notes.


 


The Indenture Trustee’s right to seek and recover
judgment on the Notes or under this Indenture shall not be affected by the
seeking, obtaining or application of any other relief under or with respect to
this Indenture.  Neither the lien of
this Indenture nor any rights or remedies of the Indenture Trustee or the
Noteholders shall be impaired by the recovery of any judgment by the Indenture
Trustee against the Issuer or by the levy of any execution under such judgment
upon any portion of the Trust Estate or upon any of the assets of the
Issuer.  Any money or property collected
by the Indenture Trustee shall be applied in accordance with Section 5.4(b).


 


Section 5.16.        Performance and Enforcement of Certain Obligations.


 


(a)           Promptly
following a request from the Indenture Trustee to do so, and at the
Administrator’s expense, the Issuer shall take all such lawful action as the
Indenture Trustee may request to compel or secure the performance and
observance by the Servicer of its obligations to the Issuer under or in
connection with the Sale and Allocation Agreement or by the Seller and the
Issuer of each of its obligations under or in connection with the Servicing
Agreement, and to exercise any and all rights, remedies, powers and privileges
lawfully available to the Issuer under or in connection with the Sale and
Allocation Agreement to the extent and in the manner directed by the Indenture
Trustee, including the transmission of notices of default on the part of the
Seller or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Seller or the Servicer of each of their obligations under the Sale and
Allocation Agreement.


 


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


 


Article VI


 


The Indenture Trustee


 


Section 6.1.           Duties of Indenture Trustee.


 


(a)           If
an Event of Default has occurred and is continuing, the Indenture Trustee shall
exercise the rights and powers vested in it by this Indenture and use the same
degree of care and


 


43

















 


skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such Person’s own
affairs.


 


(b)           Except
upon the occurrence and during the continuation 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 on its part, the Indenture Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee and, if required by
the terms of this Indenture, conforming to the requirements of this Indenture; provided,
however, that the Indenture Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of this
Indenture.


 


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


 


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


 


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


 


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


 


(d)           Every
provision of this Indenture that in any way relates to the Indenture Trustee is
subject to paragraphs (a), (b), (c) and (g) of this
Section 6.1.


 


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


 


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


 


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


 


(h)           Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Indenture Trustee shall be subject to the
provisions of this Section 6.1.


 


44

















 


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


 


Section 6.2.           Rights of Indenture Trustee.


 


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


 


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


 


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


 


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


 


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


 


(f)            The
Indenture Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Noteholders pursuant to this Indenture, unless such Noteholders shall have
offered to the Indenture Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.


 


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


 


(h)           Except
where the Transaction Documents specifically state otherwise, the Indenture
Trustee, provided it has sent out notices in accordance with the applicable
Transaction


 


45

















 


Document and is otherwise acting in accordance with
the Transaction Documents, may act as directed by the majority of the
outstanding Noteholders responding in writing to such request for amendment or
written direction; provided, however, that the Noteholders
representing at least 51% of the Class A Note Balance as of the time such
voting response is due back to the Indenture Trustee must have responded in
writing to the Indenture Trustee’s notice to amend or for written
direction.  In addition, the Indenture
Trustee shall not have any liability to any Noteholder or Note Owner with
respect to any action taken pursuant to such notice if the Noteholder or Note
Owner does not respond to such notice within the time period set forth in such
notice.  By acceptance of a Note, each
Noteholder and Note Owner is deemed to agree to the foregoing provisions.


 


Section 6.3.           Individual Rights of Indenture Trustee.


 


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


 


Section 6.4.           Indenture Trustee’s Disclaimer.


 


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


 


Section 6.5.           Notice of Default.


 


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


 


Section 6.6.           Reports by Indenture Trustee to Holders.


 


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


 


(b)           The
Indenture Trustee shall deliver, within a reasonable period of time after the
end of each calendar year, to all Noteholders and the Insurer a brief report
relating to (i) its eligibility and qualification to continue as Indenture
Trustee pursuant to the terms of this Indenture, (ii) any amounts advanced by
it under this Indenture, (iii) the amount, interest rate and maturity date of
any material indebtedness owing by the Issuer to the Indenture Trustee in its


 


46

















 


individual capacity, (iv) the property and funds
physically held by the Indenture Trustee and (v) any action taken by the
Indenture Trustee that materially affects the Notes which has not been
previously reported.


 


Section 6.7.           Compensation and Indemnity.


 


(a)           The
Issuer shall pay to the Indenture Trustee from time to time reasonable
compensation for its services in accordance with Section 3.5(d) of the Sale and
Allocation Agreement and the Indenture Trustee Fee Letter and, to the extent
such amounts are not promptly paid by the Issuer, the Issuer shall cause the
Administrator to pay such amounts in accordance with the Administration
Agreement.  The Indenture Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an
express trust.  The Issuer shall, or
shall cause the Administrator to, reimburse the Indenture Trustee for all
expenses reasonably incurred or made by it, including costs of collection, in
addition to the compensation for its services; provided, however,
that neither the Issuer nor the Administrator need reimburse the Indenture
Trustee for any expense incurred through the Indenture Trustee’s willful
misconduct, negligence, or bad faith. 
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Indenture Trustee’s agents, counsel,
accountants and experts.  The Issuer
shall, or shall cause the Administrator to, indemnify the Indenture Trustee and
the Custodian against any and all loss, liability or expense (including
attorneys’ fees) (collectively, together with the amounts specified as “Losses”
in Section 6A.3(d), the “Losses”) incurred by it in connection
with the administration of this trust and the performance of its duties
hereunder; provided, however, that neither the Issuer nor the
Administrator need indemnify the Indenture Trustee or the Custodian for any
such loss, liability or expense incurred through the Indenture Trustee’s or
Custodian’s willful misconduct, negligence, or bad faith, as applicable.  The Indenture Trustee or Custodian shall
notify the Issuer and the Administrator promptly of any claim for which it may
seek indemnity.  Any failure by the
Indenture Trustee or the Custodian to so notify the Issuer and the
Administrator shall not, however, relieve the Issuer or the Administrator of
its obligations hereunder.  The Issuer
shall, or shall cause the Servicer to, defend any such claim, and the Indenture
Trustee or the Custodian, as applicable, may have separate counsel and the
Issuer shall, or shall cause the Servicer to, pay the fees and expenses of such
counsel.  Notwithstanding the foregoing,
Losses shall be paid pursuant to this Section 6.7 by the Issuer solely
from amounts in excess of funds necessary to pay all outstanding interest and
principal due to the Noteholders and all other amounts payable in accordance
with the priorities set forth in Section 3.5(d) of the Sale and Allocation
Agreement and shall in any case be nonrecourse as to the Issuer and, to the
extent funds are not so available to pay any Losses when due and owing, the
claims relating thereto shall not constitute a claim (as defined in Section 101
of Title 11 of the United States Bankruptcy Code) against the Issuer but shall
continue to accrue.  Each party hereto
agrees that the payment of any claim of any such party in respect of Losses
payable by the Issuer shall be subordinated to the payment in full of all
outstanding interest and principal due to the Noteholders.


 


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


 


47

















 


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


 


(ii)           for any action it takes
or omits to take in good faith in accordance with directions received by it from
the requisite percentage of Noteholders in accordance with the terms herein or
in the other applicable Transaction Documents; or


 


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


 


(c)           The
Issuer’s payment obligations to the Indenture Trustee pursuant to this Section
6.7 shall survive the resignation or removal of the Indenture Trustee and
the discharge of this Indenture.  When
the Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 5.1(e) or (i) with respect to the Issuer,
the expenses are intended to constitute expenses of administration under Title
11 of the United States Code or any other applicable federal or state
bankruptcy, insolvency or similar law.


 


Section 6.8.           Replacement of Indenture Trustee.


 


(a)           No
resignation or removal of the Indenture Trustee, and no appointment of a
successor Indenture Trustee, shall become effective until either (i) the
acceptance of appointment by the successor Indenture Trustee acceptable to the
Insurer and payment of fees and expenses owed to the outgoing Indenture Trustee
pursuant to this Section 6.8 and Section 6.7 or (ii) the Notes
have been paid and discharged in full in accordance with Section 4.2 of
the this Indenture and all amounts received, if any, in connection with the
payment and discharge of the Notes have been distributed to the
Noteholders.  The Indenture Trustee may
resign at any time by so notifying the Issuer and the Insurer.  The Insurer, provided an Insurer Default
shall not have occurred and be continuing, or the Noteholders evidencing not
less than 51% of the Class A Note Balance (with the prior written consent of
the Insurer (provided that no Insurer Default has occurred and is continuing))
may remove the Indenture Trustee without cause by so notifying the Indenture
Trustee and the Issuer and shall appoint a successor Indenture Trustee.  The Issuer shall remove the Indenture
Trustee if:


 


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


 


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


 


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


 


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


 


If (a) the Indenture Trustee resigns or is removed,
(b) the Class A Noteholders fail to appoint a successor Indenture Trustee
acceptable to the Insurer (provided that no Insurer Default has occurred and is
continuing) following the removal of the Indenture Trustee without cause or (c)
if a vacancy exists in the office of Indenture Trustee for any reason (the
Indenture Trustee in such event being referred to herein as the retiring
Indenture Trustee), the Issuer shall promptly


 


48

















 


appoint a
successor Indenture Trustee acceptable to the Insurer (provided that no Insurer
Default has occurred and is continuing).


 


(b)           Any
successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee, the Insurer and the Issuer.  Upon delivery of such written acceptance,
the resignation or removal of the retiring Indenture Trustee shall become
effective and the successor Indenture Trustee shall have all the rights, powers
and duties of the Indenture Trustee under this Indenture.  The successor Indenture Trustee shall mail a
notice of its succession to the Noteholders. 
The retiring Indenture Trustee shall promptly transfer all property held
by it as Indenture Trustee to the successor Indenture Trustee.


 


(c)           If
a successor Indenture Trustee does not take office within sixty (60) days after
the retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, the Issuer or the Noteholders evidencing not less than 51% of the
Class A Note Balance may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee. 
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.


 


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


 


Section 6.9.           Appointment of Co-Indenture Trustee.


 


(a)           If
the Indenture Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation or banking association without any further act shall be the
successor Indenture Trustee; provided, however, that such
corporation or banking association must be otherwise qualified and eligible
under Section 6.11.  The
Indenture Trustee shall provide the Rating Agencies and the Insurer with prior
written notice of any such transaction.


 


(b)           If
at the time such successor or successors by consolidation, merger or conversion
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 such
successor to the Indenture Trustee may authenticate such Notes either in the
name of any predecessor trustee or in the name of the successor to the
Indenture Trustee.  In all such cases
such certificates shall have the full force which the Notes or this Indenture
provide that the certificate of the Indenture Trustee shall have.


 


Section 6.10.        Eligibility; Disqualification.


 


(a)           Notwithstanding
any other provisions of this Indenture, at any time, for the purpose of meeting
any legal requirement of any jurisdiction in which any part of the Trust Estate
may at the time be located, the Indenture Trustee shall have the power and may
execute


 


49

















 


and deliver an instrument to appoint one or more
Persons to act as a co-trustee or co-trustees, jointly with the Indenture
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Estate, and to vest in such Person or Persons, in such capacity and for
the benefit of the Noteholders, such title to the Trust Estate, or any part
hereof, 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.  No
co-trustee or separate trustee under this Indenture shall be required to meet
the terms of eligibility as a successor trustee under Section 6.11 and
no notice of the appointment of any co-trustee or separate trustee shall be
required under Section 6.8.


 


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


 


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


 


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


 


(c)           Any
notice, request or other writing given to the Indenture Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees as
effectively as if given to each of them. 
Every instrument appointing any separate trustee or co-trustee shall
refer to this Indenture and the conditions of this Article VI.  Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. 
Each 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
permitted by law, to do any lawful act under or in respect of this Indenture on
its behalf and in its name.  If any
separate trustee or co-trustee shall die, become incapable of acting, resign or
be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Indenture Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.


 


50

















 


(e)           The
Indenture Trustee or its parent shall have a combined capital, surplus and
undivided profits of at least $50,000,000 as set forth in its most recent published
annual report of condition and shall have a long-term debt rating of investment
grade by each of the Rating Agencies or shall otherwise be acceptable to each
of the Rating Agencies and the Insurer (provided that no Insurer Default has
occurred and is continuing).


 


Article VI-A


 


Section
6A.1         Possession of Contract
Files by the Custodian.


 


(a)           Delivery
of Contract Files.  The Issuer
hereby covenants and agrees with the Indenture Trustee to deliver or cause to
be delivered to the Custodian all Contract Files (i) related to Contracts sold
to the Issuer on the Closing Date no later than the Closing Date and (ii)
related to Contracts sold to the Issuer on an Additional Contract Purchase
Date, no later than such Additional Contract Purchase Date.  The Custodian shall continuously hold the
Contract Files (i) in trust for, and as bailee of, the Indenture Trustee and as
bailee for the Issuer for purposes of establishing the Issuer’s ownership
thereof, (ii) for purposes of perfecting the Indenture Trustee’s security
interest therein, to the extent available under applicable law, for the benefit
of the Noteholders and the Insurer, and establishing the Issuer’s ownership
thereof subject to such security interest, (iii) to restrict the possession
thereof by any other person except as permitted in accordance with the terms of
this Article, and (iv) subject to and in accordance with the terms and
provisions of this Article.


 


(b)           Subject
to the terms and conditions hereof, the Indenture Trustee and the Issuer hereby
appoint Wells Fargo Bank Minnesota, National Association, as Custodian, and
Wells Fargo Bank Minnesota, National Association hereby accepts such
appointment, to act as custodian and bailee of the Issuer and the Indenture
Trustee, for the benefit of the Noteholders and the Insurer, for purposes of
Article 9 of the Relevant UCC, to maintain custody of the Contract Files until
the Servicer shall have delivered a release with respect to any such Contract
Files in accordance with the terms of the Servicing Agreement.


 


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


 


(d)           The
Custodian shall (i) maintain in effect a fidelity bond and errors and omissions
insurance, affording coverage to such employees, directors, officers and other
Persons acting on the Custodian’s behalf and in an amount customary for
custodians of automobile loans similar to the Contracts or (ii) self-insure at
levels and in a manner acceptable to the Insurer.


 


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


 


(f)            Inventory
of Contract Files.  At the time of
delivery by or on behalf of the Issuer to the Custodian of any Contract File or
other documents related to a Contract, the Issuer shall also deliver a list in
an electronic format acceptable to the Custodian (the “File Number List”) of
Contract File numbers (the “File Numbers”).  The Custodian shall check the File Numbers
of the Contract Files delivered pursuant to this Indenture and certify to the
Seller, the Insurer, the Issuer


 


51

















 


and the Indenture
Trustee in writing within 48 hours after delivery of the File Number List, that
it has received all the Contract Files corresponding to the File Number
List.  If upon examination of the
Contract Files, the Custodian determines that it does not have all the Contract
Files on the File Number List, the Custodian shall promptly give written notice
of the same to the Indenture Trustee, the Insurer, the Issuer and the Seller.


 


(g)           Possession
of Contract Files.  Without any
limitation of Section 6A.1(a) or (b) hereof, following the
Custodian’s receipt of each Contract File, the Custodian shall retain
possession and custody thereof, subject to the terms of this Indenture, for the
exclusive benefit of, in trust for, and as bailee of, the Indenture Trustee and
for purposes (i) of perfecting the Indenture Trustee’s security interest
therein, to the extent available under applicable law, for the benefit of the
Noteholders and the Insurer and as bailee of the Issuer for purposes of
establishing the Issuer’s ownership thereof and (ii) of restricting the
possession thereof by any person except as permitted in accordance with the
terms of this Article, until and unless such security interest in any Contract
File is released pursuant to the terms of Section 6A.2 hereof.  Upon such receipt the Custodian shall also
make appropriate notations in the Custodian’s books and records reflecting that
the Contract File has been pledged to the Indenture Trustee for the benefit of
the Noteholders and the Insurer and that the Indenture Trustee has acquired and
holds a security interest therein. 
Notwithstanding any other provisions of this Indenture, the Custodian
shall not at any time exercise or seek to enforce any claim, right or remedy,
including any statutory or common law rights of set-off, that it might
otherwise have against all or any of the Contract Files or related documents or
the proceeds thereof.


 


Section
6A.2         Release of Contract
Files by the Custodian.


 


(a)           The
Custodian shall promptly release any Contract File then held by it to the
Servicer upon receipt of (i) a written request for release of such Contract
File signed by an Authorized Officer of the Servicer in the form attached
hereto as Exhibit C or (ii) an email request by an Authorized Officer of
the Servicer containing the information described in Exhibit C, followed
by a signed copy of such Exhibit C; provided, however,
that the Custodian shall be deemed to have received proper instructions with
respect to the Contract Files upon its receipt of such a written or emailed
request from an Authorized Officer of the Servicer.  “Authorized Officer of the Servicer” shall mean an officer
certified by the Secretary of the Servicer as an officer who is authorized to
give instructions to the Custodian as set forth on a certificate delivered to
the Custodian, the Issuer, the Insurer and the Indenture Trustee on the Closing
Date or on any such subsequent certificate delivered to the Custodian, the
Issuer, the Insurer and the Indenture Trustee.


 


(b)           The
Custodian shall promptly deliver to the Indenture Trustee or its designee any
or all Contract Files in the Custodian’s custody upon the written request of an
Authorized Officer of the Indenture Trustee. 
The Indenture Trustee shall provide the Issuer, the Insurer and the
Servicer with a copy of any such request delivered to the Custodian.  Written instructions as to the method of
shipment and shipper(s) the Custodian is directed to utilize in connection with
the delivery of Contract Files in the performance of the Custodian’s duties
hereunder shall be delivered by the Indenture Trustee to the Custodian prior to
any shipment of Contract Files pursuant to the request of Indenture Trustee
hereunder.  The Indenture Trustee will
arrange for the provision of such services at the cost and expense of the
Issuer (or, at the Custodian’s option,


 


52

















 


the Custodian
shall be reimbursed by the Issuer for all costs and expenses incurred by the
Custodian consistent with such instructions (it being understood that any such
reimbursement shall be paid in accordance with the priorities set forth in
Section 3.5(d) of the Sale and Allocation Agreement)) and will maintain such
insurance against loss or damage to the Contract Files as the Indenture Trustee
and the Servicer reasonably deem appropriate. 
“Authorized Officer of the Indenture Trustee” shall mean an officer
certified by the Secretary of the Indenture Trustee as an officer who is
authorized to give instructions to the Custodian as set forth on a certificate
delivered to the Custodian, the Issuer and the Insurer on the Closing Date or
on any such subsequent certificate delivered to the Custodian, the Issuer and
the Insurer.


 


Section
6A.3         Regarding the
Custodian.


 


(a)           The
Custodian undertakes to perform only such duties as are expressly set forth
herein.


 


(b)           The
Custodian may rely and shall be protected in acting or refraining from acting
upon any written notice, instruction or request furnished to it hereunder and
believed by it to be genuine and to have been signed or presented by the proper
party or parties.  The Custodian shall
be under no duty to inquire into or investigate the validity, accuracy or
content of any such document.  The
Custodian shall have no duty to verify the authenticity, genuineness or
conformity to the requirements of this Indenture of any Contract Files or
related documents delivered to it hereunder, or to determine whether the
materials included in any Contract File conform to the requirements hereof.


 


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


 


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


 


(e)           In
addition to and not in limitation of paragraph (d) immediately above,
the Issuer also agrees to indemnify and hold the Indemnitees and each of them
harmless from and against any and all Losses that may be imposed on, incurred
by, or asserted against, the Indemnitees or any of them in connection with or
arising out of the Custodian’s performance under this


 


53

















 


Indenture,
provided the Indemnitees have not acted with gross negligence or bad faith or
engaged in willful misconduct or breach of contract (it being understood that
such Losses shall be paid pursuant to Section 3.5(d) of the Sale and Allocation
Agreement).


 


(f)            The
duties and responsibilities of the Custodian hereunder shall be determined
solely by the express provisions of this Indenture, and no other or further
duties or responsibilities shall be implied. 
The Custodian shall not have any liability under, nor duty to inquire
into the terms and provisions of, any agreement or instructions, other than as
specifically required by this Indenture.


 


(g)           The
Custodian shall not incur any liability for following the instructions herein
contained or expressly provided for, or written instructions given by the
parties hereto in accordance with the express provisions hereof.


 


(h)           In
the event that the Custodian shall be uncertain as to its duties or rights
hereunder or shall receive instructions, claims or demands from any party
hereto which, in its opinion, conflict with any of the provisions of this
Indenture, it shall be entitled to refrain from taking any action and its sole
obligation shall be to request definitive instructions from the other parties
hereto and to keep safely all property held in custody until it shall be
directed otherwise in writing by all of the other parties hereto or by a final
order or judgment of a court of competent jurisdiction.


 


(i)            Any
corporation or association into which the Custodian in its individual capacity
may be merged or converted or with which it may be consolidated, or any
corporation or association resulting from any merger, conversion or
consolidation to which the Custodian in its individual capacity shall be a
party, or any corporation or association to which all or substantially all of
the corporate trust business of the Custodian in its individual capacity may be
sold or otherwise transferred, shall be the Custodian under this Indenture
without further act.


 


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


 


(k)           The
Custodian agrees to maintain the Contract Files which are delivered to it at
the offices of the Custodian located at: MAC N9328-011, Suite ABS, 751 Kasota
Avenue, Minneapolis, Minnesota  55414,
Attn: Corporate Trust Services – Asset Backed Securities Vault, and the
Custodian shall notify the Indenture Trustee, the Issuer and the Insurer by
written notice of any change in the location of the Contract Files.  Subject to the foregoing, the Custodian may
temporarily move individual Contract Files or any portion thereof without
notice as necessary to allow the Servicer to conduct collection and other
servicing activities in accordance with its customary practices and procedures.


 


(l)            The
Custodian shall hold the Contract Files in its fire-resistant storage vault
under its exclusive custody and control in accordance with customary standards
for such custody and shall maintain a fidelity bond plus document hazard
insurance in such amounts and against such risks as customarily are maintained
by custodians acting in a similar capacity to the Custodian


 


54

















 


hereunder with
respect to receivables similar to the Contracts.  If the Indenture Trustee or the Issuer suffers losses or damages
as a result of the destruction or loss of any of the Contract Files or any item
therein, the Custodian shall:  (i) at
the request of the Indenture Trustee or the Issuer, make any appropriate claim
under such bond or insurance; and (ii) to the extent of the Indenture Trustee’s
or the Issuer’s losses or damages, pay the proceeds thereof to the Indenture
Trustee, or if all of the Issuer’s obligations under this Indenture and the
Notes and the Insurance Agreement have been paid in full, to the Issuer, unless
the Custodian has replaced the lost or destroyed items or has otherwise
reimbursed the Indenture Trustee or the Issuer, as applicable, for such losses
or damages.  The Custodian shall
maintain the Contract Files segregated from and not commingled with any other
files of the Custodian.


 


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


 


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


 


(o)           The
Custodian specifically acknowledges and agrees that so long as Wells Fargo Bank
Minnesota, National Association, is acting as Custodian under this Indenture in
the event that Wells Fargo Bank Minnesota, National Association shall either be
terminated or resign as Indenture Trustee pursuant to this Indenture, then the
Custodian shall similarly either be terminated or resign and the Custodian
shall deliver the Contract Files to the successor Indenture Trustee, acting as
successor Custodian, appointed pursuant to the terms of this Indenture at such
place as the successor Custodian may reasonably designate.  Any entity acting as Custodian hereunder may
not resign as such unless such entity also resigns its capacity as Indenture
Trustee.


 


(p)           Except
for actions expressly authorized by this Article, the Custodian shall take no
action which would or would be likely to impair the security interests created
or existing under any Contract or Financed Vehicle or to impair the value of
any Contract or Financed Vehicle.


 


(q)           The
Custodian hereby agrees not to assert (in its individual capacity or otherwise)
any liens of any kind with respect to the Contract Files held by it or the
related Contracts and hereby releases and waives any such liens.


 


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


 


55



















Article
VII


 


Noteholders’ Lists and Reports


 


Section 7.1.           Issuer to Furnish Indenture Trustee Names
and Addresses of Noteholders.


 


The Issuer shall furnish
or cause to be furnished to the Indenture Trustee (i) within five (5) days
after each Record Date, a list, in such form as the Indenture Trustee may
reasonably require, of the names and addresses of the Class A Noteholders as of
such Record Date and (ii) at such other times as the Indenture Trustee may
request in writing, within thirty (30) days after receipt by the Issuer of any
such request, a list of similar form and content as of a date not more than ten
(10) days prior to the time such list is furnished; provided, however,
that so long as the Indenture Trustee is the Note Registrar or the Class A Notes
are issued as Book-Entry Notes, no such list shall be required to be furnished.


 


Section 7.2.           Preservation of Information;
Communications to Noteholders.


 


(a)           The Indenture Trustee
shall preserve, in as current a form as is reasonably practicable, the names
and addresses of the Noteholders contained in the most recent list furnished to
the Indenture Trustee as provided in Section 7.1 and the names and
addresses of the Noteholders received by the Indenture Trustee in its capacity
as Note Registrar.  The Indenture
Trustee may destroy any list furnished to it as provided in Section 7.1
upon receipt of a new list so furnished.


 


Section 7.3.           Fiscal Year.


 


(a)           [Reserved.]


 


(b)           Unless the Issuer
otherwise determines, the Fiscal Year of the Issuer shall end on April 30 of
each year.


 


Article
VIII


 


Accounts,
Disbursements and Releases


 


Section 8.1.           Collection of Money Collection.


 


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 Allocation Agreement.  The Indenture Trustee shall apply all such money received by it
as provided in this Indenture and the Sale and Allocation Agreement.  Except as otherwise expressly provided in
this Indenture, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of the Trust Estate,
the Indenture Trustee may take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate Proceedings.  Any such
action shall be without prejudice to any


 


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right to claim a Default
or Event of Default under this Indenture and any right to proceed thereafter as
provided in Article V.


 


Section 8.2.           Trust Accounts.


 


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


 


(b)           On or before the
Closing Date, the Issuer shall cause the Servicer to establish and maintain, in
the name of the Indenture Trustee, for the benefit of the Class A Noteholders
and the Insurer, the Reserve Account as provided in Section 3.6(a) of the Sale
and Allocation Agreement.


 


(c)           On each Payment Date,
the Indenture Trustee shall apply or cause to be applied the amount on deposit
in the Collection Account on such Payment Date in accordance with Section
3.5(d) of the Sale and Allocation Agreement.


 


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


 


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


 


Section 8.3.           General Provisions Regarding Accounts.


 


(a)           So long as no Default
or Event of Default shall have occurred and be continuing, all or a portion of
the funds in the Trust Accounts shall be invested by the Indenture Trustee at
the direction of the Servicer in Eligible Investments as provided in Sections
3.1 and 3.6(b) of the Sale and Allocation Agreement.  All income or other gain (net of losses and investment expenses)
from investments of monies deposited in the Trust Accounts shall be withdrawn
by the Indenture Trustee from such accounts and deposited to the Collection
Account and shall constitute Available Funds. 
The Servicer shall not direct the Indenture Trustee to make any
investment of any funds or to sell any investment held in any of the Trust
Accounts unless the security interest Granted and perfected in such account
will continue to be perfected in such investment or the proceeds of such sale,
in either case without any further action by any Person, and, in connection
with any direction to the Indenture Trustee to make any such investment or
sale, if requested by the Indenture Trustee, the Issuer shall deliver to the
Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee,
to such effect.


 


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(b)           Subject to Section
6.1(c), the Indenture Trustee shall not in any way be held liable by reason
of any insufficiency in any of the Trust Accounts resulting from any loss on
any Permitted 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.


 


(c)           If (i) the Servicer
shall have failed to give investment directions for any funds on deposit in the
Trust Accounts to the Indenture Trustee by 11:00 A.M. (New York City time) (or
such other time as may be agreed upon by the Issuer and Indenture Trustee), on
the Business Day preceding each Payment Date, (ii) a Default or Event of Default
shall have occurred and be continuing with respect to the Notes but the Notes
shall not have been declared due and payable pursuant to Section 5.2 or
(iii) if the Notes shall have been declared due and payable following an Event
of Default, amounts collected or receivable from the Trust Estate are being
applied in accordance with Section 5.4 as if there had not been such a
declaration, then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Trust Accounts in Eligible
Investments described in clause (vii) of the definition thereof.


 


Section 8.4.           Release of Trust Estate.


 


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


 


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


 


Section 8.5.           Opinion of Counsel.


 


The Indenture Trustee
shall receive at least seven (7) days notice when requested by the Issuer to
take any action pursuant to Section 8.4(a), accompanied by copies of any
instruments involved, and the Indenture Trustee shall also require, except in
connection with any action contemplated by Section 8.4(b), as a
condition to such action, an Opinion of Counsel, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete such action, and concluding
that all conditions precedent to the taking of such action have been complied
with and such action will not materially and adversely impair the security for
the Notes or the rights of the Noteholders or the Insurer in


 


58

















 


contravention of the
provisions of this Indenture; provided, however, that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Trust Estate.  Counsel
rendering any such opinion may rely, without independent investigation, on the
accuracy and validity of any certificate or other instrument delivered to the
Indenture Trustee in connection with any such action.


 


Article
IX


 


Supplemental Indentures


 


Section 9.1.           Supplemental Indentures Without Consent
of Noteholders.


 


The Issuer and the
Indenture Trustee, when authorized by an Issuer Order, may, without the consent
of the Holders of any Notes but with prior notice to the Rating Agencies and
the Insurer and with the consent of the Insurer (if no Insurer Default shall
have occurred and be continuing), at any time and from time to time, enter into
one or more indentures supplemental hereto, in form satisfactory to the
Indenture Trustee, for any of the following purposes:


 


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


 


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


 


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


 


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


 


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


 


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


 


(g)           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 any federal statute hereafter
enacted.


 


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provided,
however, that (i) such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Noteholder or the Insurer, (ii) the Rating Agency Condition shall have been
satisfied with respect to such action and (iii) such action shall not, as
evidenced by an Opinion of Counsel, cause the Issuer to be characterized for
federal income tax purposes as an association taxable as a corporation or
otherwise have any material adverse impact on the federal income taxation of
any Notes Outstanding or any Noteholder. 
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.


 


Section 9.2.           Supplemental Indentures with Consent of
Noteholders.


 


The Issuer and the
Indenture Trustee, when authorized by an Issuer Order, may, with the consent of
the Insurer (if no Insurer Default shall have occurred and be continuing) and
the Noteholders evidencing not less than 51% of the Class A Note Balance and
with prior notice to the Rating Agencies and the Insurer, by Act of such
Holders delivered to the Issuer and the Indenture Trustee, at any time and from
time to time, enter into one or more indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or modifying in any manner the rights
of the Noteholders under this Indenture; provided, however, that
(a) such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Noteholder or the Insurer,
(b) the Rating Agency Condition shall have been satisfied with respect to such
action and (c) such action shall not, as evidenced by an Opinion of Counsel,
cause the Issuer to be characterized for federal income tax purposes as an
association taxable as a corporation or otherwise have any material adverse
impact on the federal income taxation of any Notes Outstanding or any Noteholder;
and, provided  further, that no such supplemental indenture shall,
without the consent of the Insurer and the Holder of each Outstanding Note
affected thereby:


 


(i)            change any Final Note
Payment Date or the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest rate
thereon or the Redemption Price with respect thereto, change the provisions of
this Indenture relating to the application of collections on, or the proceeds of
the sale of, the Trust Estate to payment of principal of or interest on the
Notes, or change any place of payment where, or the coin or currency in which,
any Note or the interest thereon is payable;


 


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


 


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


 


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


 


(v)           reduce the percentage
of the Notes the consent of the Holders of which is required to direct the
Indenture Trustee to sell or liquidate the Trust Estate pursuant to Section
5.4 if the proceeds of such sale would be insufficient to pay in full the
principal amount of and accrued but unpaid interest on the Notes;


 


(vi)          modify any provision of
this Indenture specifying a percentage of the principal amount of the Notes
necessary to amend this Indenture or the other Transaction Documents except to
increase any percentage specified herein or to provide that certain additional
provisions of this Indenture or the other Transaction Documents cannot be
modified or waived without the consent of the Holders of each Outstanding Note
affected thereby;


 


(vii)         modify any of the
provisions of this Indenture in such a 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


 


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


 


The Indenture Trustee may
in its discretion 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.


 


The Indenture Trustee may
in its discretion 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.


 


It shall not be necessary
for any Act of Noteholders under this Section 9.2 to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.  Promptly after the execution by the Issuer
and the Indenture Trustee of any supplemental indenture pursuant to this Section
9.2, the Indenture Trustee shall mail to the Noteholders 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 Indenture Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.


 


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Section 9.3.           Execution of Supplemental Indentures.


 


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


 


Section 9.4.           Effect of Supplement Indenture.


 


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


 


Section 9.5.           Reference in Notes to Supplemental
Indentures.


 


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


 


Article
X


 


Redemption
of Notes


 


Section 10.1.        Redemption.


 


(a)           The Notes are subject
to redemption in whole, but not in part, at the direction of the Issuer on any
Payment Date on which the Depositor exercises its option to purchase the assets
of the Issuer pursuant to Section 5.16 of the Sale and Allocation Agreement,
and the amount paid by the Depositor pursuant to such Section 5.16 shall be
treated as collections in respect of the Contracts, constitute Available Funds
and be applied to pay the unpaid principal amount of the Notes plus all amounts
owed to the Insurer plus accrued and unpaid interest thereon.  The Issuer shall furnish notice of such
redemption to the Insurer, the Seller, the Depositor, the Rating Agencies and
the Noteholders.  If the Notes are to be
redeemed pursuant to this Section 10.1(a), the Issuer shall furnish or
cause the Depositor to furnish notice of such


 


62

















 


election to the Indenture Trustee not later than
fifteen (15) days prior to the Redemption Date and the Issuer shall deposit the
Redemption Price of the Notes to be redeemed in the Class A Note Payment
Account and the Class B Note Payment Account, as applicable, by 10:00 A.M. (New
York City time) on the Business Day prior to the Redemption Date, whereupon all
such Notes shall be due and payable on the Redemption Date.


 


(b)           In the event that the
assets of the Issuer are sold pursuant to Section 5.16 of the Sale and
Allocation Agreement, all amounts on deposit in the Note Payment Accounts shall
be paid first, to the Class A Noteholders until such amounts are reduced to
zero and all amount are paid in full to the Insurer and second, to the Class B
Noteholders, respectively, up to the unpaid principal amount of the Notes and
all accrued and unpaid interest thereon. 
If such amounts are to be paid to Noteholders pursuant to this Section
10.1(b), the Issuer shall, to the extent practicable, furnish or cause the
Servicer to furnish notice of such event to the Indenture Trustee not later
than fifteen (15) days prior to the Redemption Date, whereupon all such amounts
shall be payable on the Redemption Date.


 


Section 10.2.        Form of Redemption Notice.


 


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


 


All notices of redemption
shall state:


 


(a)           the Redemption Date;


 


(b)           the Redemption Price;
and


 


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


 


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


 


Section 10.3.        Notes Payable on Redemption Date.


 


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


 


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Article
XI


 


Miscellaneous


 


Section 11.1.        Compliance Certificates and Opinions, etc.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)           Whenever the Issuer is
required to furnish to the Indenture Trustee an Issuer’s Certificate certifying
or stating the opinion of any signer thereof as to the matters described in Section
11.1(b), the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value to the Issuer
of the property or securities to be so deposited and of all other such property
or securities made the basis of any such withdrawal or release since the
commencement of the then-current Fiscal Year of the Issuer, as set forth in the
certificates furnished pursuant to Section 11.1(b) and this Section
11.1(c), is ten percent (10%) or more of the Class A Note Balance, but such
a certificate need not be furnished with respect to any property or securities
so deposited if the fair value thereof to the Issuer as set forth in the


 


64

















 


related Issuer’s Certificate is less than $25,000 or
less than one percent (1%) of the Class A Note Balance.


 


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


 


(e)           Whenever the Issuer is
required to furnish to the Indenture Trustee an Issuer’s Certificate certifying
or stating the opinion of any signer thereof as to the matters described in Section
11.1(d), the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of the
property or securities and of all other property, other than property as
contemplated by Section 11.1(f) 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 Section 11.1(d) and this Section
11.1(e), is ten percent (10%) or more of the Class A Note Balance, but such
a 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 Issuer’s
Certificate is less than $25,000 or less than one percent (1%) of the Class A
Note Balance.


 


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


 


Section 11.2.        Form of Documents Delivered to Indenture
Trustee.


 


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


 


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


 


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(c)           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.


 


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


 


Section 11.3.        Acts of Noteholders.


 


(a)           Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by the Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
the Noteholders in person or by agents duly appointed in writing, and except as
herein otherwise expressly provided such action shall become effective when
such instrument or instruments are delivered to the Indenture Trustee and,
where it is hereby expressly required, to the Issuer.  Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the “Act”
of the Noteholders signing such instrument or instruments.  Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 6.1) conclusive in favor of the
Indenture Trustee and the Issuer, if made in the manner provided in this Section
11.3.


 


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


 


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


 


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


 


Section 11.4.        Notices, etc, to Indenture Trustee.


 


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, Act
of Noteholders is to be made upon, given or furnished to or filed with:


 


66

















 


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


 


(b)           the Issuer by the
Indenture Trustee or by any Noteholder, shall be sufficient for every purpose
hereunder if in writing and mailed first-class, postage prepaid to the Issuer
addressed to: First Investors Auto Owner Trust 2003-A, c/o Deutsche Bank Trust
Company Delaware, 1011 Centre Road, Suite 200, Wilmington, Delaware 19805-1266,
Attention: Corporate Trust, with a copy to: Deutsche Bank Trust Company
Americas, 60 Wall Street, 26th Floor, New York, New York 10005, Attention:
Structured Finance Services, or at any other address previously furnished in
writing to the Indenture Trustee by the Issuer or the Administrator.  The Issuer shall promptly transmit any
notice received by it from the Noteholders to the Indenture Trustee; or


 


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


 


Notices required to be
given to the Rating Agencies by the Issuer, the Indenture Trustee or the Owner
Trustee shall be in writing, personally delivered, telecopied or mailed by
certified mail, return receipt requested, to (i) in the case of Moody’s, at the
following address: Moody’s Investors Service, Inc., ABS Monitoring Department,
99 Church Street, New York, New York 10007 and (ii) in case of S&P, at the
following address: Standard & Poor’s, a division of The McGraw-Hill
Companies, 55 Water Street (43rd Floor), New York, New York 10041, Attention:
Asset Backed Surveillance Department.


 


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


 


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


 


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


 


(c)           If, by reason of the
suspension of regular mail service as a result of a strike, work stoppage or
similar activity, it shall be impractical to mail notice of any event to
Noteholders


 


67

















 


when such notice is required to be given pursuant to
any provision of this Indenture, then any manner of giving such notice as shall
be satisfactory to the Indenture Trustee shall be deemed to be a sufficient
giving of such notice.


 


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


 


Section 11.6.        Alternate Payment and Notice Provisions.


 


Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer may
enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture for such
payments or notices.  The Issuer shall
furnish to the Indenture Trustee a copy of each such agreement and the
Indenture Trustee shall cause payments to be made and notices to be given in
accordance with such agreements.


 


Section 11.7.        Effect of Headings and Table of Contents.


 


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


 


Section 11.8.        Successors and Assigns.


 


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


 


Section 11.9.        Severability.


 


If any provision of this
Indenture or the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions of this
Indenture and the Notes 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 successors hereunder, the Insurer, the Noteholders,
any other party secured hereunder, and any other Person with an ownership
interest in any part of the Trust Estate, any benefit or any legal or equitable
right, remedy or claim under this Indenture.


 


Section 11.11.      Legal Holiday.


 


If 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.


 


68

















 


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 and the obligations, rights and
remedies of the parties under this Indenture shall be determined in accordance
with such laws.


 


Section 11.13.      Counterparts.


 


This Indenture may be
executed in any number of counterparts, each of which counterparts when so
executed shall be deemed to be an original, and all of which 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 office, such recording
shall be effected by the Issuer at its expense and shall be accompanied by an
Opinion of Counsel (which may be counsel to the Indenture Trustee or any other
counsel reasonably acceptable to the Indenture Trustee) to the effect that such
recording is necessary either for the protection of the Noteholders or any
other Person secured hereunder or for the enforcement of any right or remedy
granted to the Indenture Trustee under this Indenture.


 


Section 11.15.      Trust Obligation.


 


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


 


Section 11.16.      No Petition.


 


The Indenture Trustee, by
entering into this Indenture, and each Noteholder or Note Owner, by accepting a
Note or beneficial interest in a Note, as the case may be, hereby covenant and
agree that they will not at any time institute against, join in any institution
against, or knowingly or intentionally cooperate or encourage any other Person
in instituting against, the Depositor or the Issuer, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceedings under any United States federal or state bankruptcy or similar


 


69

















 


law in connection with
any obligations relating to the Notes, this Indenture or any of the other
Transaction Documents.


 


Section 11.17.      Inspection.


 


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


 


Section 11.18.      Certain Matters Regarding the Insurer.


 


If no Insurer Default
shall have occurred and be continuing, the Insurer shall have the right to
exercise all rights, including voting rights, which the Class A Noteholders are
entitled to exercise pursuant to this Indenture, without any consent of such
Class A Noteholders except for amendments which require the consent of both
Class A Noteholders and the Insurer, in accordance with Section 9.2; provided,
however, that, without the consent of each Class A Noteholder affected
thereby, the Insurer shall not exercise such rights to amend this Indenture in
any manner that would (a) reduce the amount of, or delay the timing of,
collections of payments on the Contracts or distributions which are required to
be made on any Class A Note, (b) adversely affect in any material respect the
interests of the Holders of any Class A Notes or (c) alter the rights of any
such Class A Holder to consent to such amendment.


 


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


 


Section 11.19.      Acknowledgment of Multiple Roles.


 


The parties expressly
acknowledge and consent to Wells Fargo Bank Minnesota, National Association (“Wells
Fargo”) acting in the possible dual capacity of Back-up Servicer
or successor Servicer and in the capacity as Indenture Trustee and
Custodian.  Wells Fargo may, in such
dual capacity, discharge its separate functions fully, without hindrance or
regard to conflict of interest principles, duty of loyalty principles or other
breach of fiduciary duties to the extent


 


70

















 


that any such conflict or
breach arises from the performance by Wells Fargo of express duties set forth
in this Indenture in any of such capacities, all of which defenses, claims or
assertions are hereby expressly waived by the other parties hereto except in
the case of negligence (other than errors in judgment) and willful misconduct
by Wells Fargo.


 


71

















 


IN WITNESS WHEREOF, the
parties hereto 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.


 


	
   

  	
  FIRST INVESTORS
  AUTO OWNER TRUST 2003-A

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DEUTSCHE BANK
  TRUST COMPANY DELAWARE, not in its individual capacity but solely as Owner
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BANK
  MINNESOTA, NATIONAL ASSOCIATION, not in its individual capacity but as
  Indenture Trustee and Custodian

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
									



 


[INDENTURE SIGNATURE
PAGE]


 

















 


SCHEDULE A


to Indenture


 


 


Perfection Representations,
Warranties And Covenants


 


In addition to the
representations, warranties and covenants contained in the Indenture, the
Issuer hereby represents, warrants, and covenants to the Indenture Trustee as
follows on the Closing Date, and on each Additional Contract Purchase Date, in
each case only with respect to the Collateral pledged to the Indenture Trustee
on the Closing Date, or the relevant Additional Contract Purchase Date:


 


General


 


1.             The Indenture creates
a valid and continuing security interest (as defined in UCC Section 9-102) in
the Collateral in favor of the Indenture Trustee, which security interest is
prior to all other Liens, except as set forth below, and is enforceable as such
as against creditors of and purchasers from and assignees of the Issuer.


 


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


 


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


 


Creation


 


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


 


Perfection


 


1.             The Issuer has caused
the filing of all appropriate financing statements in the proper filing office
in the appropriate jurisdictions under applicable law in order to perfect the
security interest in the Collateral granted to the Indenture Trustee under the
Indenture.


 


2.             With respect to
Collateral that constitutes tangible chattel paper, such tangible chattel paper
is in the possession of the Custodian, and the Issuer has received a written
acknowledgment from the Custodian, that it is holding such tangible chattel
paper for the benefit of the Indenture Trustee and the Issuer.  All financing statements filed or to be
filed against the Issuer in favor of the Indenture Trustee in connection with
this Indenture 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 Secured Party.”


 


A-1

















 


Priority


 


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


 


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


 


3.             None of the tangible
chattel paper that constitutes or evidences the Contracts has any marks or
notations indicating that it has been pledged, assigned or otherwise conveyed
to any Person other than the Seller, the Depositor, the Issuer or the Indenture
Trustee.


 


Survival of Perfection
Representations


 


1.             Notwithstanding any
other provision of this Indenture, the Contribution Agreement, the Sale and
Allocation Agreement or any other Transaction Document, the Perfection
Representations, Warranties and Covenants contained in this Schedule shall be
continuing, and remain in full force and effect until such time as all
obligations under the Sale and Allocation Agreement, Contribution Agreement and
the Indenture have been finally and fully paid and performed.


 


No Waiver


 


1.             The parties hereto:
(i) shall not, without obtaining a confirmation of the then-current rating of
the Class A Notes (without giving effect to the Policy), waive any of the
Perfection Representations, Warranties or Covenants; (ii) shall provide the
Rating Agencies with prompt written notice of any breach of the Perfection
Representations, Warranties or Covenants, and shall not, without obtaining a
confirmation of the then-current rating of the Class A Notes (without giving
effect to the Policy) as determined after any adjustment or withdrawal of the
ratings following notice of such breach) waive a breach of any of the
Perfection Representations, Warranties or Covenants.


 


A-2

















 


Exhibit A-1

$139,661,000


 


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


 


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


 


NO SALE, PLEDGE OR OTHER
TRANSFER OF THIS CLASS A NOTE SHALL BE MADE UNLESS SUCH SALE, PLEDGE OR OTHER
TRANSFER IS (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (B) FOR SO LONG AS THE CLASS A NOTES ARE ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THE TRANSFEROR REASONABLY
BELIEVES AFTER DUE INQUIRY IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, OR (C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED AND ANY APPLICABLE STATE SECURITIES AND BLUE SKY LAWS OR IS
MADE IN ACCORDANCE WITH EACH SUCH ACT AND STATE LAWS. THE INDENTURE TRUSTEE MAY
REQUIRE AN OPINION OF COUNSEL TO BE DELIVERED TO IT IN CONNECTION WITH ANY
SALE, PLEDGE OR OTHER TRANSFER OF THIS CLASS A NOTE PURSUANT TO CLAUSES (A) OR
(C) ABOVE.  ALL OPINIONS OF COUNSEL
REQUIRED IN CONNECTION WITH ANY TRANSFER SHALL BE BY COUNSEL REASONABLY
ACCEPTABLE TO THE INDENTURE TRUSTEE.


 


A-1

















 


EACH TRANSFEREE OF THIS
CLASS A NOTE IS DEEMED TO REPRESENT AND WARRANT THAT, WITH RESPECT TO THE
SOURCE OF FUNDS TO BE USED BY SUCH TRANSFEREE TO ACQUIRE THIS CLASS A NOTE (THE
“SOURCE”) EITHER (A) SUCH SOURCE IS NOT AN “EMPLOYEE BENEFIT PLAN” (WITHIN THE
MEANING OF SECTION 3(3) OF ERISA), A “PLAN” (WITHIN THE MEANING OF SECTION
4975(E)(1) OF THE CODE) OR A PLAN THAT IS SUBJECT TO ANY SUBSTANTIALLY SIMILAR
PROVISION OF ANY FEDERAL, STATE OR LOCAL LAW, OR A PERSON USING ASSETS OF ANY
SUCH PLAN, OR (B) THE ACQUISITION AND HOLDING OF THIS CLASS A NOTE BY SUCH
SOURCE WILL NOT CONSTITUTE OR RESULT IN A NONEXEMPT PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA, SECTION 4975 OF THE CODE OR ANY SUBSTANTIALLY
SIMILAR PROVISION OF ANY FEDERAL, STATE OR LOCAL LAW.


 


A-2

















 


	
  REGISTERED

  	
   

  	
   

  
	
  No. A-1

  	
   

  	
  CUSIP NO.
  32057TAC5

  



 


FIRST INVESTORS
AUTO OWNER TRUST 2003-A


 


FORM OF 2.58%
CLASS A ASSET-BACKED NOTES


 


First Investors Auto
Owner Trust 2003-A, a statutory trust organized and existing under the laws of
the State of Delaware (herein referred to as the “Issuer”), for value
received, hereby promises to pay to Cede & Co., or its registered assigns,
the principal sum of $139,661,000 payable on each Payment Date in the aggregate
amount, if any, payable from the Class A Note Payment Account in respect of
principal on the Class A Notes pursuant to and in accordance with Section
2.8 of the Indenture, dated as of November 20, 2003 (as amended,
supplemented or otherwise modified and in effect from time to time, the “Indenture”),
between the Issuer and Wells Fargo Bank Minnesota, National Association, a
national banking association, as Indenture Trustee and Custodian (in such
capacities the “Indenture Trustee”  and the “Custodian”)
and Section 3.5 of the Sale and Allocation Agreement; provided,
however, that if not paid prior to such date, the entire unpaid principal
amount of this Note shall be due and payable on the earlier of April 20, 2011
(the “Final
Note Payment Date”) and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. 
Capitalized terms used but not defined herein are defined in Article
I of the Indenture, which also contains rules as to construction that shall
be applicable herein.


 


The Issuer shall pay
interest on this Class A Note at the rate per annum shown above on each Payment
Date until the principal of this Class A Note is paid or made available for
payment, on the principal amount of this Class A Note outstanding on the
preceding Payment Date (after giving effect to all payments of principal made
on the preceding Payment Date), subject to certain limitations contained in Section
3.1 of the Indenture. Interest on this Class A Note will accrue for each
Payment Date from and including the previous Payment Date (or, in the case of
the initial Payment Date or if no interest has been paid, from the Closing
Date) to but excluding such Payment Date. 
Interest will be computed on the basis of a 360-day year of twelve
30-day months.  Such principal of and
interest on this Class A Note shall be paid in the manner specified on the
reverse hereof.


 


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


 


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


 


Unless the certificate of
authentication hereon has been executed by the Indenture Trustee whose name
appears below by manual signature, this Class A Note shall not be entitled to
any


 


A-3

















 


benefit under the
Indenture referred to on the reverse hereof, or be valid or obligatory for any
purpose.


 


This Class A Note is one
of a duly authorized issue of Class A Notes of the Issuer, designated as its
Class A Asset-Backed Notes, are issued under the Indenture, to which Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer,
the Indenture Trustee and the Holders of the Class A Notes.  The Class A Notes are subject to all terms
of the Indenture.


 


This Class A Note is and
will be secured by the Collateral pledged as security therefor as provided in
the Indenture.


 


Principal of this Class A
Note is payable on each Payment Date as described on the face hereof.  “Payment Date” means the fifteenth day
of each month or, if any such day is not a Business Day, the next succeeding
Business Day, commencing December 22, 2003.


 


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


 


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


 


A-4

















 


Street and Marquette
Avenue MAC N9311-161, Minneapolis, Minnesota 
55479, Attention:  Corporate
Trust Services Asset-Backed Administration or such other address as the
Indenture Trustee may designate from time to time as its Corporate Trust Offices
in accordance with the Indenture.


 


The Issuer shall pay
interest on overdue installments of interest at the Note Rate to the extent
permitted by law.


 


The Class A Notes are
entitled to the benefits of the Policy issued by the Insurer.  The Insurer is obligated to pay, in
accordance with the terms of the Policy as described in the “Statement of
Insurance” attached hereto.


 


As provided in the
Indenture, the Notes may be redeemed in the manner and to the extent described
in Section 10.1(a) of the Indenture.


 


As provided in the
Indenture, and subject to certain limitations set forth therein, the transfer
of this Class A Note may be registered on the Note Register upon surrender of
this Class A Note for registration of transfer at the office or agency designated
by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Holder hereof or such Holder’s attorney duly authorized
in writing, and thereupon one or more new Class A Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. 
No service charge will be charged for any registration of transfer or
exchange of this Class A Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.


 


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


 


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


 


A-5

















 


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, the Indenture or any of the other
Transaction Documents.


 


The Issuer has entered
into the Indenture and this Class A Note is issued with the intention that, for
federal, state and local income, and franchise tax purposes, the Class A Notes
will qualify as indebtedness of the Issuer secured by the Trust Estate.  The Issuer, by entering into the Indenture
and this Class A Note, and each Noteholder, by its acceptance of this Class A
Note (and each Note Owner by its acceptance of a beneficial interest in this
Class A Note), agree to treat this Class A Note as indebtedness of the Issuer
for federal, state and local income and franchise tax purposes.


 


Prior to the due
presentment for registration of transfer of this Class A Note, the Issuer, the
Indenture Trustee and any agent of the Issuer or the Indenture Trustee may
treat the Person in whose name this Class A Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Class A
Note be overdue, and none of the Issuer, the Indenture Trustee or any such
agent shall be affected by notice to the contrary.


 


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


 


The term “Issuer,” as
used in this Class A Note, includes any successor to the Issuer under the
Indenture.


 


The Class A Notes are
issuable only in registered form in denominations as provided in the Indenture,
subject to certain limitations therein set forth.


 


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


 


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


 


Anything herein to the
contrary notwithstanding, except as expressly provided in the Transaction
Documents, none of Wells Fargo Bank Minnesota, National Association, in its
individual capacity, Deutsche Bank Trust Company Delaware, in its individual
capacity, any


 


A-6

















 


owner of a beneficial
interest in the Issuer, or any of their respective partners, beneficiaries,
agents, officers, directors, employees or successors or assigns shall be
personally liable for, nor shall recourse be had to any of them for, the
payment of principal or of interest on this Class A Note or performance of, or
omission to perform, any of the covenants, obligations or indemnifications
contained in the Indenture.  The Holder
of this Class A Note, by its acceptance hereof (and each Note Owner, by its
acceptance of a beneficial interest herein), agrees that, except as expressly
provided in the Transaction Documents, in the case of an Event of Default under
the Indenture, the Holder shall have no claim against any of the foregoing for
any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and enforcement
against, the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Class A Note.


 


A-7

















 


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


 


Date:  November 20, 2003


 


	
   

  	
  FIRST INVESTORS
  AUTO OWNER TRUST 2003-A

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DEUTSCHE BANK
  TRUST COMPANY DELAWARE, not in its individual capacity but solely as Owner
  Trustee under the Trust Agreement

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  
					



 


A-8

















 


INDENTURE
TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


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


 


	
   

  	
  WELLS FARGO BANK
  MINNESOTA, NATIONAL ASSOCIATION, not in its individual capacity but solely as
  Indenture Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  



 


A-9

















 


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 of Assignor

  
	
   

  
	
   

  
	
   

  	
  */

  
	
   

  	
  Signature Guaranteed

  
					



 












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


 


A-10

















 


STATEMENT OF
INSURANCE


 


A-11

















 


Exhibit A-2

$5,065,890.91


 


THIS CLASS B NOTE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”) OR ANY STATE SECURITIES OR “BLUE SKY” LAWS.  THE HOLDER HEREOF, BY PURCHASING THIS CLASS
B NOTE, AGREES THAT THIS NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY (1) TO AN AFFILIATE OF THE DEPOSITOR, (2) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (3) IN RELIANCE ON AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUBJECT
TO THE ISSUER’S AND THE INDENTURE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.  ANY NOTEHOLDER WILL, AND EACH SUBSEQUENT
NOTEHOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO ABOVE. 
THE ISSUER IS NOT OBLIGATED TO REGISTER THIS CLASS B NOTE UNDER THE 1933
ACT OR ANY STATE SECURITIES OR BLUE SKY LAWS. 
TRANSFER OF THIS CLASS B NOTE IS SUBJECT TO ADDITIONAL TRANSFER
RESTRICTIONS CONTAINED IN SECTION 2.16 OF THE INDENTURE.  EACH HOLDER OF THIS CLASS B NOTE AGREES THAT
THIS CLASS B NOTE IS SUBJECT TO THE PROVISIONS OF ARTICLE 8 OF THE UNIFORM
COMMERCIAL CODE AS IN EFFECT IN ALL APPLICABLE JURISDICTIONS.


 


No. B-1


 


FIRST INVESTORS
AUTO OWNER TRUST 2003-A


 


FORM OF CLASS B
ASSET-BACKED NOTES


 


First Investors Auto
Owner Trust 2003-A, a statutory trust organized and existing under the laws of
the State of Delaware (herein referred to as the “Issuer”), for value
received, hereby promises to pay to First Investors Auto Funding Corporation or
its registered assigns, the principal sum of $5,065,890.91 payable on each
Payment Date in the aggregate amount, if any, payable from the Class B Note
Payment Account in respect of principal on the Class B Notes pursuant to and in
accordance with Section 2.8 of the Indenture, dated as of November 20,
2003 (as amended, supplemented or otherwise modified and in effect from time to
time, the “Indenture”), between the Issuer and Wells Fargo Bank
Minnesota, National Association, a national banking association, as Indenture
Trustee and Custodian (in such capacities the “Indenture Trustee”
and the “Custodian”)
and Section 3.5 of the Sale and Allocation Agreement; provided, however,
that if not paid prior to such date, the entire unpaid principal amount of this
Note shall be due and payable on the earlier of April 20, 2011 (the “Final
Note Payment Date”) and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. 
Capitalized terms


 


B-1

















 


used but not defined
herein are defined in Article I of the Indenture, which also contains
rules as to construction that shall be applicable herein.


 


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


 


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


 


This Class B Note shall
not accrue interest.


 


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


 


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


 


[REMAINDER OF THIS
PAGE LEFT INTENTIONALLY BLANK.]


 


B-2

















 


This Class B Note is one
of a duly authorized issue of Class B Notes of the Issuer, designated as its
Class B Asset-Backed Notes, are issued under the Indenture, to which Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and obligations thereunder of the Issuer,
the Indenture Trustee and the Holders of the Notes.  The Class B Notes are subject to all terms of the Indenture.


 


This Class Note is and
will be equally and ratably secured by the Collateral pledged as security
therefor as provided in the Indenture.


 


Principal of this Class B
Note is due and payable on each Payment Date as described on the face
hereof.  “Payment Date” means
the fifteenth day of each month or, if any such day is not a Business Day, the
next succeeding Business Day, commencing December 22, 2003.


 


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


 


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


 


As provided in the
Indenture, the Notes may be redeemed in the manner and to the extent described
in Section 10.1(a) of the Indenture.


 


B-3

















 


As provided in the
Indenture, and subject to certain limitations set forth therein, the transfer
of this Class B Note may be registered on the Note Register upon surrender of
this Note for registration of transfer at the office or agency designated by
the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Holder hereof or such Holder’s attorney duly authorized
in writing, and thereupon one or more new Class B Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. 
No service charge will be charged for any registration of transfer or
exchange of this Class B Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.


 


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


 


Each Noteholder, by
accepting this Class B Note hereby covenants and agrees that it will not at any
time institute against, join in any institution against, or knowingly or
intentionally cooperate or encourage any other Person in instituting against,
the Depositor or the Issuer, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or any of the other
Transaction Documents.


 


The Issuer has entered
into the Indenture and this Class B Note is issued with the intention that, for
federal, state and local income, and franchise tax purposes, the Class B Notes
will qualify as indebtedness of the Issuer secured by the Trust Estate.  The Issuer, by entering into the Indenture
and this Class B Note, and each Noteholder, by its acceptance of this Class B
Note, agree to treat this Class B Note as indebtedness of the Issuer for
federal, state and local income and franchise tax purposes.


 


Prior to the due
presentment for registration of transfer of this Class B Note, the Issuer, the
Indenture Trustee and any agent of the Issuer or the Indenture Trustee may
treat the Person in whose name this Class B Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this


 


B-4

















 


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


 


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


 


The term “Issuer,” as
used in this Class B Note, includes any successor to the Issuer under the
Indenture.


 


The Class B Notes are
issuable only in certificated form in denominations as provided in the
Indenture, subject to certain limitations therein set forth.


 


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


 


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


 


Anything herein to the
contrary notwithstanding, except as expressly provided in the Transaction
Documents, none of Wells Fargo Bank Minnesota, National Association, in its
individual capacity, Deutsche Bank Trust Company Delaware in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal or of interest on this Class B
Note or performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in the Indenture.  The Holder of this Class B Note, by its
acceptance hereof, agrees that, except as expressly provided in the Transaction
Documents, in the case of an Event of Default under the Indenture, the Holder
shall have no claim against any of the foregoing for any deficiency, loss or claim
therefrom; provided, however, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Issuer for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Class B Note.


 


B-5

















 


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


 


Date:  November 20, 2003


 


	
   

  	
  FIRST INVESTORS
  AUTO OWNER TRUST 2003-A

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DEUTSCHE BANK TRUST
  COMPANY DELAWARE, not in its individual capacity but solely as Owner Trustee
  under the Trust Agreement

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  
					



 


B-6

















 


INDENTURE TRUSTEE’S
CERTIFICATE OF AUTHENTICATION


 


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


 


 


	
   

  	
  WELLS FARGO BANK
  MINNESOTA, NATIONAL ASSOCIATION, not in its individual capacity but solely as
  Indenture Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


B-7

















 


ASSIGNMENT


 


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


 


 


 


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


 


 


 


(name and address of
assignee)


 


the within Note and all
rights thereunder, and hereby irrevocably constitutes and appoints
                                  ,
attorney, to transfer said Note on the books kept for registration thereof,
with full power of substitution in the premises.


 


	
  Dated:

  	
   

  	
   

  
	
   

  	
  */

  
	
   

  	
  Signature of Assignor

  
	
   

  
	
   

  
	
   

  	
  */

  
	
   

  	
  Signature Guaranteed

  
					



 












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


 


B-8

















 


Exhibit B


 


[RESERVED]


 

















 


Exhibit C


 


REQUEST FOR RELEASE
OF CONTRACT


 


[Date]


 


TO:         Wells Fargo Bank
Minnesota, National Association
   as Custodian

MAC N9328-011

Suite ABS

751 Kasota Avenue

Minneapolis, Minnesota  55414

Attention:              Corporate Trust
Services —Asset-Backed Administration


 


In connection with the
Contract Files which are owned by First Investors Auto Owner Trust 2003-A (the
“Issuer”)
and are pledged by the Issuer to Wells Fargo Bank Minnesota, National
Association, as Indenture Trustee (the “Indenture Trustee”), the undersigned,
as [Indenture
Trustee][Servicer], requests the release of the Contract File
related to the Contract identified below by its number.  The undersigned shall return the documents
to you when the undersigned’s need therefor no longer exists, except where the
Contract is paid in full or otherwise disposed of.  Capitalized terms used but not otherwise defined herein shall
have the respective meanings assigned to such terms in the Indenture, dated as
of November 20, 2003, between you and the Issuer.


 


 


	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  CONTRACT NUMBER

  	
   

  
	
   

  	
  CUSTOMER

  	
   

  
					



 

















 


TO CUSTODIAN:  Please acknowledge below by your signature
the execution of the above request.  You
must retain this form for your file, and a copy of this form, signed and dated
by you, shall be returned to the Indenture Trustee and the Issuer.


 


 


	
   

  	
   

  
	
   

  	
  Authorized Signature of
  Custodian

  



 


 


Release Date


 


 


RETURN OF RELEASED
DOCUMENT(S) FILE


 


All documents identified
above as previously released have been returned:


 


 


	
   

  	
   

  



 


 


Date of Return