1
Exhibit 4.1
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RYDER VEHICLE LEASE TRUST 1999-A
_____ % Asset Backed Notes, Class A-1
_____ % Asset Backed Notes, Class A-2
_____ % Asset Backed Notes, Class A-3
_____ % Asset Backed Notes, Class A-4
_____ % Asset Backed Notes, Class A-5
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee,
and
RYDER VEHICLE LEASE TRUST 1999-A,
As Issuer
INDENTURE
Dated as of October 1, 1999
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TRUST INDENTURE ACT CROSS-REFERENCE CHART
(this chart is not a part of this Indenture)
TIA Section Indenture Reference
----------- -------------------
310(a)(1)...............................................6.08, 6.11
310(a)(2)...............................................6.11
310(a)(3)...............................................6.10(b)
310(a)(4)...............................................Not Applicable
310(a)(5)...............................................6.11
310(b)..................................................6.11
310(c)..................................................Not Applicable
311(a)..................................................6.15
311(b)..................................................6.15
311(c)..................................................Not Applicable
312(a)..................................................7.01, 7.02(a)
312(b)..................................................7.02(b)
312(c)..................................................7.02(c)
313(a)..................................................7.03
313(b)..................................................7.03
313(c)..................................................7.03
313(d)..................................................7.03
314(a)..................................................3.09
314(b)..................................................3.06
314(c)(1)...............................................11.01(a)
314(c)(2)...............................................11.01(a)
314(c)(3)...............................................Not Applicable
314(d)..................................................3.09(a), 8.06, 11.01(a)
314(e)..................................................11.01(a)
315(a)..................................................6.01(b)
315(b)..................................................6.05
315(c)..................................................6.01(a)
315(d)..................................................6.01(c)
315(d)(1)...............................................6.01(b), 6.01(c)(i)
315(d)(2)...............................................6.01(c)(ii)
315(d)(3)...............................................6.01(c)(iii)
315(e)..................................................5.13
316(a)..................................................5.11; 5.12
316(a)(1)(A)............................................5.11
316(a)(1)(B)............................................5.12
316(a)(2)...............................................Not Applicable
316(b)..................................................5.07
316(c)..................................................5.06(b)
317(a)(1)...............................................5.03(a), 5.03(b)
317(a)(2)...............................................5.03(d)
317(b)..................................................3.03
318(a)..................................................11.19
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions................................................ 2
Section 1.02. Interpretive Provisions.................................... 13
ARTICLE TWO
THE SENIOR NOTES
Section 2.01. Form....................................................... 14
Section 2.02. Execution, Authentication and Delivery..................... 14
Section 2.03. Temporary Senior Notes..................................... 15
Section 2.04. Registration; Registration of Transfer and Exchange........ 15
Section 2.05. Mutilated, Destroyed, Lost or Stolen Senior Notes.......... 16
Section 2.06. Persons Deemed Owners...................................... 17
Section 2.07. Cancellation............................................... 17
Section 2.08. Release of Collateral...................................... 18
Section 2.09. Book-Entry Notes........................................... 18
Section 2.10. Notices to Clearing Agency................................. 19
Section 2.11. Definitive Notes........................................... 19
Section 2.12. Authenticating Agents...................................... 19
ARTICLE THREE
COVENANTS
Section 3.01. Payment of Principal and Interest.......................... 21
Section 3.02. Maintenance of Office or Agency............................ 21
Section 3.03. Money for Payments to be Held in Trust..................... 21
Section 3.04. Existence.................................................. 23
Section 3.05. Protection of Trust Estate................................. 23
Section 3.06. Opinions as to Trust Estate................................ 23
Section 3.07. Performance of Obligations; Administration of the 1999-A
SUBI Assets.............................................. 24
Section 3.08. Negative Covenants......................................... 25
Section 3.09. Issuer Certificates and Reports............................ 26
Section 3.10. Restrictions on Certain Other Activities................... 27
Section 3.11. Notice of Defaults......................................... 27
Section 3.12. Further Instruments and Acts............................... 27
Section 3.13. Delivery of 99% 1999-A Vehicle SUBI Certificate............ 27
Section 3.14. Delivery of the Subordinated Notes......................... 27
Section 3.15. Compliance with Laws....................................... 27
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.................... 28
Section 4.02. Application of Trust Money................................. 29
Section 4.03. Repayment of Monies Held by Paying Agent................... 29
ARTICLE FIVE
INDENTURE DEFAULT
Section 5.01. Indenture Defaults......................................... 30
Section 5.02. Acceleration of Maturity; Waiver of Indenture Default...... 31
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee........................................ 32
Section 5.04. Remedies; Priorities....................................... 34
Section 5.05. Optional Preservation of the 1999-A SUBI Assets............ 36
Section 5.06. Limitation of Suits........................................ 36
Section 5.07. Unconditional Rights of Senior Noteholders to Receive
Principal and Interest................................... 37
Section 5.08. Restoration of Rights and Remedies......................... 37
Section 5.09. Rights and Remedies Cumulative............................. 37
Section 5.10. Delay or Omission Not a Waiver............................. 37
Section 5.11. Control by Senior Noteholders.............................. 37
Section 5.12. Waiver of Past Defaults.................................... 38
Section 5.13. Undertaking for Costs...................................... 38
Section 5.14. Waiver of Stay or Extension Laws........................... 39
Section 5.15. Action on Senior Notes..................................... 39
Section 5.16. Performance and Enforcement of Certain Obligations......... 39
Section 5.17. Sale of Trust Estate....................................... 40
ARTICLE SIX
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee................................ 41
Section 6.02. Rights of Indenture Trustee................................ 42
Section 6.03. Individual Rights of Indenture Trustee..................... 43
Section 6.04. Indenture Trustee's Disclaimer............................. 44
Section 6.05. Notice of Defaults......................................... 44
Section 6.06. Reports by Indenture Trustee to Senior Noteholders......... 44
Section 6.07. Compensation and Indemnity................................. 44
Section 6.08. Replacement of Indenture Trustee........................... 45
Section 6.09. Successor Indenture Trustee by Merger...................... 46
Section 6.10. Appointment of Co-Trustee or Separate Trustee.............. 47
Section 6.11. Eligibility; Disqualification.............................. 48
Section 6.12. Trustee as Holder of 99% 1999-A Vehicle SUBI Certificate... 48
Section 6.13. Representations and Warranties of Indenture Trustee........ 48
Section 6.14. Furnishing of Documents.................................... 49
Section 6.15. Preferential Collection Of Claims Against The Issuer....... 49
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ARTICLE SEVEN
SENIOR NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Indenture Trustee Senior Noteholder
Names and Addresses...................................... 50
Section 7.02. Preservation of Information; Communications to
Senior Noteholders....................................... 50
Section 7.03. Reports by Indenture Trustee............................... 50
ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money........................................ 51
Section 8.02. Accounts................................................... 51
Section 8.03. Payment Date Certificate................................... 51
Section 8.04. Disbursement of Funds...................................... 53
Section 8.05. General Provisions Regarding Accounts...................... 57
Section 8.06. Release of Trust Estate.................................... 58
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Senior
Noteholders.............................................. 59
Section 9.02. Supplemental Indentures With Consent of Senior
Noteholders.............................................. 60
Section 9.03. Execution of Supplemental Indentures....................... 61
Section 9.04. Effect of Supplemental Indenture........................... 61
Section 9.05. Reference in Senior Notes to Supplemental Indentures....... 62
ARTICLE TEN
REDEMPTION OF SENIOR NOTES
Section 10.01. Redemption................................................ 63
Section 10.02. Form of Redemption Notice................................. 63
Section 10.03. Senior Notes Payable on Redemption Date................... 64
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions...................... 65
Section 11.02. Form of Documents Delivered to Indenture Trustee.......... 66
Section 11.03. Acts of Senior Noteholders................................ 67
Section 11.04. Notices................................................... 68
Section 11.05. Notices to Senior Noteholders; Waiver..................... 68
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Section 11.06. Effect of Headings and Table of Contents.................. 69
Section 11.07. Successors and Assigns.................................... 69
Section 11.08. Severability.............................................. 69
Section 11.09. Benefits of Indenture..................................... 69
Section 11.10. Legal Holidays............................................ 69
Section 11.11. Governing Law............................................. 69
Section 11.12. Counterparts.............................................. 69
Section 11.13. Recording of Indenture.................................... 69
Section 11.14. Trust Obligation.......................................... 69
Section 11.15. No Petition............................................... 70
Section 11.16. No Recourse............................................... 70
Section 11.17. Inspection................................................ 71
Section 11.18. Limitation of Liability of Owner Trustee.................. 71
Section 11.19. TIA Incorporation and Conflicts........................... 71
EXHIBITS
Exhibit A Form of Senior Note.......................................A-1
Exhibit B Form of Depository Agreement..............................B-1
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INDENTURE
This Indenture, dated as of October 1, 1999, is between the Ryder
Vehicle Lease Trust 1999-A, a Delaware business trust (the "Issuer"), and U.S.
Bank National Association, a national banking association, as trustee (the
Indenture Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the holders of the Issuer's [_______]%
Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), [_______]% Asset Backed
Notes, Class A-2 (the "Class A-2 Notes"), [_______]% Asset Backed Notes, Class
A-3 (the "Class A-3 Notes"), [_______]% Asset Backed Notes, Class A-4 (the
"Class A-4 Notes"), [_______]% Asset Backed Notes, Class A-5 (the "Class A-5
Note" and, together with the Class A-1 Notes, Class A-2 Notes, Class A-3
Notes and Class A-4 Notes, the "Senior Notes"):
GRANTING CLAUSE
The Issuer, to secure the payment of principal of and interest on, and
any other amounts owing in respect of, the Senior Notes, equally and ratably
without prejudice, priority or distinction except as set forth herein, and to
secure compliance with the provisions of this Indenture, hereby Grants in trust
to the Indenture Trustee on the Closing Date, as trustee for the benefit of the
Senior Noteholders, all of the Issuer's right, title and interest, whether now
owned or hereafter acquired, in and to (i) the Trust Estate and (ii) all
present and future claims, demands, causes and choses in action in respect of
any or all of the 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, voluntary or involuntary, into cash
or other liquid property, all cash proceeds, accounts, accounts receivable,
notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments, securities, financial
assets and other property that at any time constitute all or part of or are
included in the proceeds of any of the foregoing (collectively, the
"Collateral"), in each case as such terms are defined herein.
The Indenture Trustee, as trustee on behalf of the Senior Noteholders,
acknowledges the foregoing 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 Senior Noteholders may be adequately and effectively
protected.
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the SUBI Trust
Agreement or the Administration Agreement, as the case may be. Whenever used
herein, unless the context otherwise requires, the following words and phrases
have the following meanings:
"Accounts" means the Note Distribution Account: and the Reserve Fund.
"Accrual Period" means, with respect to any Payment Date, the period
from and including the l5th day of the month in which the preceding Payment
Date occurred (or, in the case of the first Payment Date or if no interest has
yet been paid, from and including the Closing Date) to and including the l4th
day of the month in which such Payment Date occurs.
"Act" has the meaning set forth in Section 11.03(a).
"Administration Agreement" means the Basic Administration Agreement as
supplemented by that certain 1999-A supplement, dated as of October 1, 1999,
among the parties to the Basic Administration Agreement, as amended or
supplemented from time to time with respect to the 1999-A SUBI.
"Administrator" means the Administrator, or any successor
Administrator under the Issuer Administration Agreement.
"Authenticating Age" means any Person authorized by the Indenture
Trustee to act on behalf of the Indenture Trustee to authenticate and deliver
the Senior Notes.
"Authorized Newspaper" means a newspaper of general circulation in The
City of New York, printed in the English language and customarily published on
each Business Day, whether or not published on Saturdays, Sundays and holidays.
"Authorized Officer" means, with respect to the Issuer, (i) any
officer of the Owner Trustee who is authorized to act for 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 and (ii) so long as the Issuer Administration Agreement is in effect, any
of the following officers of the Administrator, each of whom is authorized to
act for the Administrator in matters relating to the Issuer pursuant to the
Issuer Administration Agreement: the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary and any Assistant Secretary.
"Available Funds" means, for any Payment Date and the related
Collection Period, the sum of the following amounts: (i) 99% of SUBI
Collections, (ii) Advances, (iii) 99% of the Residual Value Surplus Draw Amount
and (iv) in the case of an Optional Purchase, the Optional Purchase Price.
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"Available Funds Shortfall Amount" means, for any Payment Date and the
related Collection Period, the amount by which Securityholder Available Funds
is less than the amount necessary to make the distributions in clauses (i)
through (iv) of Section 8.04(a), except that the Optimal Principal
Distributable Amount rather than the Quarterly Principal Distributable Amount
shall be used for purposes of clause (iv).
"Available Principal Distribution Amount" means an amount equal to the
sum of (i) the amount of Available Funds remaining after the Administrative
Agent has been paid the Payment Date Advance Reimbursement and the
Administration Fee, and after accrued interest has been paid on the Securities,
and (ii) the Reserve Fund Draw Amount, if any, remaining after accrued interest
has been paid on the Securities.
"Back-up Security Agreement" means that certain back-up security
agreement dated as of October 1, 1999, among Ryder, the Origination Trust, RTR
I LP, the Transferor, the Issuer and the Indenture Trustee.
"Basic Administration Agreement" means that certain administration
agreement, dated as of February 1, 1998, among the UTI Beneficiaries, Ryder, as
administrative agent, RTRT, Inc., as trustee, Delaware Trust Capital
Management, Inc., as Delaware trustee, and U.S. Bank, as trust agent.
"Book-Entry Notes" means a beneficial interest in the Senior Notes,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.09.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in the states of Delaware, Florida, Illinois or
New York are authorized or obligated by law, executive order or government
decree to be closed.
"Certificate Balance" has the meaning set forth in the Trust Agreement.
"Certificate Distribution Amount" means, as of any Payment Date, the
amount being distributed to the Trust Certificateholders on such Payment Date.
"Certificate Factor" has the meaning set forth in the Trust Agreement.
"Certificate Rate" has the meaning set forth in the Trust Agreement.
"Class" means a group of Senior Notes whose form is identical except
for variation in denomination, principal amount or owner, and references to
"each Class" thus mean each of the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes and Class A-5 Notes.
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"Class A-1 Interest Rate" means [______] % per annum (computed on the
basis of the actual number of days elapsed, but assuming a 360-day year of
twelve 30-day months).
"Class A-2 Interest Rate" means [______] % per annum (computed on the
basis of a 360-day year of twelve 30-day months).
"Class A-3 Interest Rate" means [______] % per annum (computed on the
basis of a 360-day year of twelve 30-day months).
"Class A-4 Interest Rate" means [______] % per annum (computed on the
basis of a 360-day year of twelve 30-day months).
"Class A-5 Interest Rate" means [______] % per annum (computed on the
basis of the actual number of days elapsed, but assuming a 360-day year of
twelve 30-day months).
"Class A-1 Note Balance" means, as of any date, the Initial Class A-1
Note Balance reduced by all payments of principal made on or prior to such date
on the Class A-1 Notes.
"Class A-2 Note Balance" means, as of any date, the Initial Class A-2
Note Balance reduced by all payments of principal made on or prior to such date
on the Class A-2 Notes.
"Class A-3 Note Balance" means, as of any date, the Initial Class A-3
Note Balance reduced by all payments of principal made on or prior to such date
on the Class A-3 Notes.
"Class A-4 Note Balance" means, as of any date, the Initial Class A-4
Note Balance reduced by all payments of principal made on or prior to such date
on the Class A-4 Notes.
"Class A-5 Note Balance" means, as of any date, the Initial Class A-5
Note Balance reduced by all payments of principal made on or prior to such date
on the Class A-5 Notes.
"Clearing Agency " means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act and shall initially be DTC.
"Clearing Agency Participant" means a broker, dealer, bank or other
financial institution or other Person for which from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means [_________], 1999.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning set forth in the Granting Clause.
"Commission" means the U.S. Securities and Exchange Commission.
"Corporate Trust Office" means the office of the Indenture Trustee at
which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Indenture is
located at One Illinois Center, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000; or at such other address as the Indenture Trustee may designate
from time to time by notice to the Senior Noteholders and the Issuer, or the
principal corporate trust office of any successor Indenture Trustee (the
address of which the successor Indenture Trustee shall notify the Senior
Noteholders and the Issuer).
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"Default" means any occurrence that is, or with notice or lapse of
time or both would become, an Indenture Default.
"Definitive Note" means a definitive fully registered Senior Note.
"Deposit Date" means the Business Day immediately preceding each
Payment Date.
"Depository Agreement" means the agreement among the Issuer, the
Indenture Trustee and DTC, as the initial Clearing Agency, dated as of the
Closing Date, substantially in the form of Exhibit B.
"DCR" means Duff & Xxxxxx Credit Rating Co.
"DTC" means The Depository Trust Company, and its successors.
"Eligible Account" means an account maintained with a depository
institution or trust company (i) (a) the short-term unsecured debt obligations
of which have the Required Deposit Rating or (b) having a long-term unsecured
debt rating acceptable to each Rating Agency and corporate trust powers and
(ii) which is maintained in a segregated trust account in the corporate trust
department of such depository institution or trust company.
"Excess Amounts" means the amount remaining after the distributions
from the 1999-A SUBI Collection Account provided for in clauses (i) through
(iv) of Section 8.04(a), in the amount and priority set forth therein, have
been made.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any (i) corporation or
depository institution, the Chief Executive Officer, Chief Operating Officer,
Chief Financial Officer, President, Executive Vice President, any Vice
President, the Secretary or the Treasurer of such corporation or depository
institution, and (ii) any partnership, any general partner thereof.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create and xxxxx x xxxx upon and a
security interest in and right of set-off against, deposit, set over and
confirm pursuant to this Indenture, and, with respect to the Collateral or 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.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
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"Indenture Default" has the meaning set forth in Section 5.01.
"Independent" means, when used with respect to any specified Person,
that such Person (i) is in fact independent of the Issuer, any other obligor
upon the Senior Notes, the Administrator 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 Issuer, any such other obligor, the
Administrator or any Affiliate of any of the foregoing Persons and (iii) is not
connected with the Issuer, any such other obligor, the Administrator or any
Affiliate of any of the foregoing Persons as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.0 1 (b),
made by an Independent appraiser or other expert appointed by an Issuer Order,
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 Class A-1 Note Balance" means $[__________].
"Initial Class A-2 Note Balance" means $[__________].
"Initial Class A-3 Note Balance" means $[__________].
"Initial Class A-4 Note Balance" means $[__________].
"Initial Class A-5 Note Balance" means $[__________].
"Initial Securities Balance" has the meaning set forth in the Trust
Agreement.
"Initial Senior Note Balance" means the sum of the Initial Class A-1
Note Balance, the Initial Class A-2 Note Balance, the Initial Class A-3 Note
Balance, the Initial Class A-4 Note Balance and the Initial Class A-5 Note
Balance.
"Interest Rate" means the Class A-1 Interest Rate, Class A-2 Interest
Rate, Class A-3 Interest Rate, Class A-4 Interest Rate, Class A-5 Interest Rate
or the Overdue Interest Rate, as applicable.
"Issuer" means the Ryder Vehicle Lease Trust 1999-A, until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein, each other obligor on the Senior Notes.
"Issuer Administration Agreement" means that certain issuer
administration agreement, dated as of the date hereof, among the Administrator,
the Issuer, the Transferor and the Indenture Trustee.
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"Issuer SUBI Certificate Transfer Agreement" means that certain issuer
SUBI certificate transfer agreement, dated as of October 1, 1999, between the
Transferor, as transferor, and the Issuer, as transferee, as amended or
supplemented from time to time.
"Issuer Order" and "Issuer Request" means a written order or request
of the Issuer signed in the name of the Issuer by any one of its Authorized
Officers and delivered to the Indenture Trustee.
"Note Distribution Account" means the trust account established by the
Transferor pursuant to Section 8.02, into which amounts released from the
1999-A SUBI Collection Account and the Reserve Fund for distribution to Senior
Noteholders shall be deposited and from which all distributions to Senior
Noteholders shall be made.
"Note Factor" means, with respect to the Senior Notes on any Payment
Date, the seven digit decimal equivalent of a fraction the numerator of which
is the Senior Note Balance on such Payment Date (after giving effect to any
payment of principal on such Payment Date) and the denominator of which is the
Initial Senior Note Balance.
"Officer's Certificate" means a certificate signed by an Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01, and delivered to,
the Indenture Trustee.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in this Indenture, be employees of
or counsel to the Issuer or the Administrator, and who shall be satisfactory to
the Indenture Trustee, and which opinion or opinions shall be addressed to the
Indenture Trustee, comply with any applicable requirements of Section 11.01 and
be in form and substance satisfactory to the Indenture Trustee.
"Optimal Principal Distributable Amount" means, for any Payment Date
and the related Collection Period, an amount equal to the sum of the following
amounts:
(i) for each Specified Vehicle for which the related Specified Lease
did not terminate during such Collection Period, the difference between the
Securitization Value of such Specified Lease at the beginning and at the end of
such Collection Period;
(ii) for each Specified Vehicle for which the related Specified Lease
reached its Maturity Date during such Collection Period, the Securitization
Value of such Specified Lease as of such Maturity Date;
(iii) for each Specified Lease terminated by the related Lessee or the
Administrative Agent during such Collection Period pursuant to exercise of the
Annual Termination Option, the related Securitization Value as of the effective
date of termination;
(iv) for each Specified Vehicle purchased by the Administrative Agent
before its Maturity Date, the Securitization Value of the related Specified
Lease as of the date of such purchase;
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(v) for each Specified Vehicle that became the subject of a Casualty
Termination Lease during such Collection Period, the Securitization Value of
the related Specified Lease as of the date of such Casualty Termination; and
(vi) for each Specified Lease that became a Default Termination Lease
during such Collection Period, the related Securitization Value as of the date
such Specified Lease became a Default Termination Lease.
"Optional Purchase Price" has the meaning set forth in Section
10.01(a).
"Origination Trust" means Ryder Truck Rental LT.
"Origination Trust Agreement" means that certain second amended and
restated trust agreement, dated as of February 1, 1998, among Ryder Truck
Rental I LP and Ryder Truck Rental II LP, as grantors and initial
beneficiaries, Ryder, as administrative agent, Delaware Trust Capital
Management, Inc., as Delaware trustee, RTRT, Inc., as trustee, and U.S. Bank,
as trust agent.
"Origination Trust Trustee" means RTRT, Inc., in its capacity as
Trustee of the Origination Trust.
"Outstanding" means, as of any date, all Senior Notes (or all Senior
Notes of an applicable Class) theretofore authenticated and delivered under
this Indenture except:
(i) Senior Notes (or Senior Notes of an applicable Class) theretofore
cancelled by the Senior Note Registrar or delivered to the Senior Note
Registrar for cancellation;
(ii) Senior Notes (or Senior Notes of an applicable Class) 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 related Senior Noteholders (provided, however, that if such Senior
Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor, satisfactory to the Indenture
Trustee, has been made); and
(iii) Senior Notes (or Senior Notes of an applicable Class) in
exchange for or in lieu of other Senior Notes (or Senior Notes of such Class)
that have been authenticated and delivered pursuant to this Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such Senior
Notes are held by a bona fide purchaser;
provided, that in determining whether Senior Noteholders holding the requisite
Outstanding Amount have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any Basic Document, Senior Notes
owned by the Issuer, the Transferor, the Administrator or any of their
respective Affiliates shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Indenture Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Senior Notes that a Responsible Officer knows to be so
owned shall be so disregarded. Senior Notes so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee thereof establishes to
the satisfaction of the Indenture Trustee such pledgee's right so to act with
respect to such Senior Notes and that such pledgee is not the Issuer, the
Transferor, the Administrator or any of their respective Affiliates.
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"Outstanding Amount" means, as of any date, the aggregate principal
amount of the applicable Senior Notes Outstanding, reduced by all payments of
principal made in respect thereof on or prior to such date.
"Overdue Interest Rate" means, with respect to any Class, the Interest
Rate applicable to such Class.
"Paying Agent" means the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee set forth in Section
6.11 and is authorized by the Issuer to make the payments to and distributions
from the Note Distribution Account, including the payment of principal of or
interest on the Senior Notes on behalf of the Issuer.
"Payment Date Certificate" has the meaning set forth in Section
8.03(a).
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Note" means, with respect to any particular Senior Note,
every previous Senior Note evidencing all or a portion of the same debt as that
evidenced by such particular Senior Note; and, for the purpose of this
definition, any Senior Note authenticated and delivered under Section 2.05 in
lieu of a mutilated, destroyed, lost or stolen Senior Note shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Senior Note.
"Principal Carryover Shortfall" means, as of the close of any Payment
Date, the sum of the excess, if any, of the then Principal Distribution Amount
over the Quarterly Principal Distributable Amount.
"Principal Distribution Amount" means, for any Payment Date, the
aggregate amount of principal payable on the Securities, equal to the greater
of (A) the sum of (i) the Optimal Principal Distributable Amount and (ii) any
Principal Carryover Shortfall as of the preceding Payment Date and (B) if the
amount on deposit in the Reserve Fund after giving effect to all deposits and
withdrawals referenced in clause (i) of the definition of the Reserve Fund Draw
Amount exceeds the unpaid balance of the Securities, the Securities Balance.
Notwithstanding the above, the Principal Distribution Amount shall not exceed
the outstanding Securities Balance.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative
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"Program Operating Lease" means that certain program operating lease,
dated as of October 1, 1999, between the Transferor and the Issuer.
"Quarterly Principal Distributable Amount" means an amount equal to
the lesser of (i) the Principal Distribution Amount and (ii) the Available
Principal Distribution Amount.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given ten Business Days (or such shorter period
as is acceptable to each Rating Agency) prior notice thereof and that each
Rating Agency shall have notified the Transferor, the Administrator and the
Issuer in writing that such action will not result in a Rating Event.
"Rating Event" means the qualification, reduction or withdrawal by
either Rating Agency of its then-current rating of the Senior Notes or the
Trust Certificates.
"Record Date" means, with respect to a Payment Date or Redemption
Date, the close of business on the Business Day immediately preceding such
Payment Date or Redemption Date.
"Redemption Date" means in the case of a redemption of the Senior
Notes pursuant to Section 10.01, the Payment Date specified by the
Administrator or the Issuer pursuant to Section 10.01.
"Redemption Price" means an amount equal to the unpaid principal
amount of the Senior Notes redeemed plus accrued and unpaid interest thereon at
the applicable Interest Rate for the Senior Notes being so redeemed, up to but
excluding the Redemption Date.
"Registered Holder" means the Person in whose name a Senior Note is
registered on the Senior Note Register on the related Record Date.
"Repayment Price" has the meaning set forth in the Trust Agreement.
"Reserve Fund" has the meaning set forth in the Trust Agreement.
"Reserve Fund Deposit Amount" means, with respect to any Payment Date,
an amount equal to the sum of (i) all payments in respect of interest on and
principal of the Subordinated Notes, (ii) any Excess Amounts with respect to
the related Collection Period and (iii) net income realized on the investment
of funds on deposit in the 1999-A SUBI Collection Account, the Residual Value
Surplus Account and the Reserve Fund.
"Reserve Fund Draw Amount" means, for any Payment Date, the amount
withdrawn from the Reserve Fund, equal to the sum of (i) the lesser of (a) the
Available Funds Shortfall Amount, if any, and (b) the amount on deposit in the
Reserve Fund after giving effect to all deposits thereto on the related Deposit
Date or such Payment Date, and (ii) in the event the amount on deposit in the
Reserve Fund, after giving effect to all withdrawals therefrom and deposits
thereto in respect of such Payment Date, exceeds the unpaid balance of the
Securities, the Securities Balance.
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"Reserve Fund Property" has the meaning set forth in the Issuer SUBI
Certificate Transfer Agreement.
"Reserve Fund Requirement" means (i) on any Payment Date other than a
Payment Date described in clause (ii), an amount equal to [_______]% of the
Initial Securities Balance or (ii) on any Payment Date occurring on or after
the earlier to occur of the date on which the last remaining Specified Lease
terminated or the date on which the Program Operating Lease is terminated
following a Program Operating Lease Default, zero.
"Residual Note" has the meaning set forth in Section 2.02.
"Residual Value Surplus Draw Amount" means, on each Deposit Date, the
withdrawal made from the Residual Value Surplus Account in an amount equal to
the lesser of (i) the sum of all Residual Value Losses, if any, and any
unreimbursed Disposition Expenses in respect of related Specified Vehicles sold
or otherwise disposed of by the Administrative Agent during the related
Collection Period and (ii) the amount on deposit in the Residual Value Surplus
Account.
"Responsible Officer" means, with respect to the Indenture Trustee,
any officer within Corporate Trust (or any successor group of the Indenture
Trustee), including any Vice President, Assistant Secretary or other officer or
assistant officer of the Indenture Trustee customarily performing functions
similar to those performed by the people who at such time shall be officers, or
to whom any corporate trust matter is referred within Corporate Trust because
of his knowledge of and familiarity with the particular subject.
"Ryder" means Ryder Truck Rental, Inc., and its successors.
"Securities" means the Trust Certificates, the Subordinated Notes and
the Senior Notes, collectively.
"Securities Balance" has the meaning set forth in the Trust Agreement.
"Secured Obligations" has the meaning set forth in the Issuer SUBI
Certificate Transfer Agreement.
"Securityholder Available Funds" means on each Payment Date, all
remaining Available Funds after giving effect to the payment to the
Administrative Agent pursuant to Section 11.04(a)(v) of the Administration
Agreement of (i) the Payment Date Advance Reimbursement and (ii) the
Administration Fee, together with any unpaid Administration Fees in respect of
one or more Collection Periods.
"Senior Note" means a Class A-1 Note, Class A-2 Note, Class A-3 Note,
Class A-4 Note or Class A-5 Note, in each case substantially in the form of
Exhibit A hereto.
"Senior Note Balance" means the sum of the Class A-1 Note Balance, the
Class A-2 Note Balance, the Class A-3 Note Balance, the Class A-4 Note
Balance and the Class A-5 Note Balance.
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"Senior Note Distribution Amount" means, as of any Payment Date, the
amount being distributed to the Senior Noteholders on such Payment Date.
"Senior Note Final Payment Date" means, with respect to a Class A-1
Note [______] 15, 20[__]; with respect to a Class A-2 Note, [______] 15, 20[__];
with respect to a Class A-3 Note, [______] 15, 20[__]; with respect to a Class
A-4 Note, [______] 15, 20[__] and with respect to a Class A-5 Note, [______]
15, 20[__].
"Senior Noteholder" means, as of any date, the Person in whose name a
Senior Note is registered on the Senior Note Register on such date.
"Senior Note Owner" means, with respect to 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 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).
"Senior Note Register" and "Senior Note Registrar" have the respective
meanings set forth in Section 2.04.
"SUBI Trust Agreement" means the Origination Trust Agreement as
supplemented by that certain supplement, dated as of October 1, 1999, among the
parties to the Origination Trust Agreement, as amended or supplemented from
time to time.
"Subordinated Note" has the meaning set forth in the Trust Agreement.
"Subordinated Note Rate" has the meaning set forth in the Trust
Agreement.
"Subordinated Note Redemption Price" has the meaning set forth in the
Trust Agreement.
"TIA" means the Trust Indenture Act of 1939, as amended and as in
force on the date hereof, unless otherwise specifically provided.
"Trust Agreement" means that certain trust agreement, as amended and
restated as of October 1, 1999, between the Transferor and the Owner Trustee.
"Trust Certificate" has the meaning set forth in the Trust Agreement.
"Trust Estate" means all money, accounts, chattel paper, general
intangibles, goods, instruments, investment property and other property subject
or intended to be subject to the lien and security interest of this Indenture
for the benefit of the Senior Noteholders (including the Collateral Granted to
the Indenture Trustee), including (i) the 99% 1999-A Vehicle SUBI Certificate
(transferred pursuant to the Issuer SUBI Certificate Transfer Agreement),
evidencing a 99% beneficial interest in the 1999-A Vehicle SUBI Assets,
including the right to payments thereunder from certain Sales Proceeds on
deposit in the 1999-A SUBI Collection Account and the Residual Value Surplus
Account and investment earnings, net of losses and investment expenses, on
amounts on deposit in the 1999-A SUBI Collection Account and the Residual Value
Surplus Account, (ii) the rights of the Issuer under the Program Operating
Lease, (iii) the rights of the Issuer under the Back-up Security Agreement,
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(iv) the rights of the Issuer to the funds on deposit from time to time in the
Note Distribution Account and any other account or accounts established
pursuant to the Indenture and all cash, investment property and other property
from time to time credited thereto and all proceeds thereof, (v) the rights of
the Transferor, as transferee under the SUBI Certificate Transfer Agreement,
(vi) the rights of the Issuer, as transferee under the Issuer SUBI Certificate
Transfer Agreement, (vii) the rights of the Issuer as a third-party beneficiary
of the Administration Agreement, including the right to certain Advances, and
the SUBI Trust Agreement, (viii) the security interest of the Issuer in the
Subordinated Notes and in the Reserve Fund Property; (ix) the pledge to and
security interest of the Issuer in the 99% 1999-A Lease SUBI Certificate, and
(x) all proceeds of the foregoing.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code as in effect in the relevant jurisdiction, as amended from time
to time.
"United States" means the United States of America.
"UTI Beneficiary" means Ryder Truck Rental I LP or Ryder Truck Rental
II LP, each in its capacity as an initial Beneficiary of the Origination Trust,
and its permitted successors and assigns.
Section 1.02. Interpretive Provisions.
(a) For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires, (i) terms used in this
Indenture include, as appropriate, all genders and the plural as well as the
singular, (ii) references to words such as "herein", "hereof" and the like
shall refer to this Indenture as a whole and not to any particular part,
Article or Section within this Indenture, (iii) the term "include" and all
variations thereof shall mean "include without limitation", (iv) the term "or"
shall include "and/or" and (v) the term "proceeds" shall have the meaning set
forth in the applicable UCC.
(b) As used in this Indenture and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Indenture or in any such certificate or other document, and accounting
terms partly defined in this Indenture or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Indenture or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Indenture or
in any such certificate or other document shall control.
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ARTICLE TWO
THE SENIOR NOTES
Section 2.01. Form. The Senior Notes, together with the Indenture
Trustee's certificate of authentication, shall be in substantially the form set
forth as Exhibit A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined by the officers executing such Senior Notes, as evidenced by
their execution of such Senior Notes. Any portion of the text of any Senior
Note may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of such Senior Note.
The terms of the Senior Notes set forth in Exhibit A hereto are part
of the terms of this Indenture.
Section 2.02. Execution, Authentication and Delivery. The Senior Notes
shall be executed by the Owner Trustee on behalf of the Issuer. The signature of
any authorized officer of the Owner Trustee on the Senior Notes may be manual or
by facsimile. Senior Notes bearing the manual or facsimile signature of
individuals who were at any time authorized officers of the Owner Trustee shall
bind the Issuer, notwithstanding that any such individuals have ceased to hold
such offices prior to the authentication and delivery of such Senior Notes or
did not hold such offices at the date of such Senior Notes.
The Indenture Trustee shall, upon Issuer Order, authenticate and
deliver for original issue the following aggregate principal amounts of the
Senior Notes: (i) $[________] of Class A-1 Notes, (ii) $[_______] of Class A-2
Notes, (iii) $[________] of Class A-3 Notes, (iv) $[________] of Class A-4 Notes
and (v) $[_______] of Class A-5 Notes. The aggregate principal amount of Class
A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class A-5 Notes
outstanding at any time may not exceed such respective amounts, except as
provided in Section 2.05.
Each Senior Note shall be dated the date of its authentication. The
Senior Notes shall be issuable as registered notes in book-entry form in minimum
denominations of $ 1,000 and in integral multiples of $ 1,000 in excess thereof;
provided, however, that on the Closing Date, one Class A-1 Note, one Class A-2
Note, one Class A-3 Note, one Class A-4 Note and one Class A-5 Note may be
issued in a denomination that includes any remaining portion of the Initial
Class A-1 Note Balance, the Initial Class A-2 Note Balance, the Initial Class
A-3 Note Balance, the Initial Class A-4 Note Balance, and the Initial Class A-5
Note Balance, respectively (each, a "Residual Note").
No Senior Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Senior
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 Senior Note shall be
conclusive evidence, and the only evidence, that such Senior Note has been duly
authenticated and delivered hereunder.
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Section 2.03. Temporary Senior Notes. Pending the preparation of
Definitive Notes, the Owner Trustee may execute, on behalf of the Issuer, and
upon receipt of an Issuer Order, the Indenture Trustee shall authenticate and
deliver, temporary Senior Notes that are printed, lithographed, typewritten,
mimeographed or otherwise produced, substantially 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
Senior Notes may determine, as evidenced by their execution of such Senior
Notes.
If temporary Senior Notes are issued, the Issuer shall cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the temporary Senior Notes shall be
exchangeable for Definitive Notes upon surrender of such temporary Senior Notes
at the office or agency of the Issuer to be maintained as provided in Section
3.02, without charge to the related Senior Noteholder. Upon surrender for
cancellation of any one or more temporary Senior Notes, the Owner Trustee shall
execute, on behalf of the Issuer, and the Indenture Trustee shall authenticate
and deliver in exchange therefor, a like principal amount of Definitive Notes
of authorized denominations. Until so exchanged, such temporary Senior Notes
shall in all respects be entitled to the same benefits under this Indenture as
Definitive Notes.
Section 2.04. Registration; Registration of Transfer and Exchange. The
Issuer shall cause to be kept a register (the "Senior Note Register") in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall
provide for the registration of Senior Notes and the registration of transfers
of Senior Notes. The Indenture Trustee is hereby appointed the "Senior Note
Registrar" for the purpose of registering Senior Notes and transfers of Senior
Notes as herein provided. Upon any resignation of any Senior Note Registrar, the
Issuer shall promptly appoint a successor or, if it elects not to make such an
appointment, assume the duties of Senior Note Registrar.
If a Person other than the Indenture Trustee is appointed by the
Issuer as Senior Note Registrar, the Issuer shall give the Indenture Trustee
prompt written notice of such appointment and the location, and any change in
such location, of the Senior Note Register, and the Indenture Trustee shall
have the right to inspect the Senior Note Register at all reasonable times and
to obtain copies thereof, and the Indenture Trustee shall have the right to
rely upon a certificate executed on behalf of the Senior Note Registrar by an
Executive Officer as to the names and addresses of the Senior Noteholders and
the principal amounts and number of such Senior Notes.
Upon surrender for registration of transfer of any Senior Note at the
office or agency of the Issuer to be maintained as provided in Section 3.02, if
the requirements of Section 8-401 of the UCC are met, the Owner Trustee shall
execute, on behalf of the Issuer, and the Indenture Trustee shall authenticate
and the related Senior Noteholder shall obtain from the Indenture Trustee, in
the name of the designated transferee, one or more new Senior Notes in any
authorized denominations, of a like aggregate principal amount.
At the option of the related Senior Noteholder, Senior Notes may be
exchanged for other Senior Notes in any authorized denominations, of a like
aggregate principal amount, upon surrender of such Senior Notes at such office
or agency. Whenever any Senior Notes are so surrendered for exchange, if the
requirements of Section 8-401 of the UCC are met, the Owner Trustee shall
execute, on behalf of the Issuer, the Indenture Trustee shall authenticate and
the Senior Noteholder shall obtain from the Indenture Trustee the Senior Notes
that the Senior Noteholder making such exchange is entitled to receive.
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Every Senior Note presented or surrendered for registration of
transfer or exchange shall (if so required by the Issuer or the Indenture
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form and substance satisfactory to the Issuer and the Indenture
Trustee, duly executed by the Senior Noteholder thereof or its attorney-in-fact
duly authorized in writing.
All Senior Notes issued upon any registration of transfer or exchange
of Senior Notes shall be the valid obligations of the Issuer, evidencing the
same debt and entitled to the same benefits under this Indenture as the Senior
Notes surrendered upon such registration of transfer or exchange.
No service charge shall be made to a Senior Noteholder for any
registration of transfer or exchange of Senior Notes, but the Issuer may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith, other than exchanges
pursuant to Sections 2.03 or 9.05 not involving any transfer.
The preceding provisions of this Section notwithstanding, the Issuer
shall not be required to make, and the Senior Note Registrar need not register,
transfers or exchanges of any Senior Note (i) selected for redemption or (ii)
for a period of 15 days preceding the due date for any payment with respect to
such Senior Note.
Section 2.05. Mutilated, Destroyed, Lost or Stolen Senior Notes. If
(i) any mutilated Senior Note is surrendered to the Indenture Trustee, or the
Indenture Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Senior Note and (ii) there is delivered to the Indenture
Trustee such security or indemnity as may be required by it to hold the Issuer,
the Owner Trustee and the Indenture Trustee harmless, then, in the absence of
notice to the Owner Indenture Trustee, the Senior Note Registrar or the
Indenture Trustee that such Senior Note has been acquired by a "protected
purchase" (as contemplated by Article Eight of the UCC), and provided that the
requirements of Section 8-405 of the UCC are met, the Owner Trustee shall
execute, on behalf of the Issuer, and upon Issuer Request the Indenture Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Senior Note, a replacement Senior Note;
provided, however, that if any such destroyed, lost or stolen Senior Note (but
not a mutilated Senior Note) shall have become or within seven days shall
become due and payable, or shall have been called for redemption, instead of
issuing a replacement Senior Note, the Issuer may pay such destroyed, lost or
stolen Senior Note when so due or payable or upon the Redemption Date without
the surrender thereof. If, after the delivery of such replacement Senior Note
or payment of a destroyed, lost or stolen Senior Note pursuant to the proviso
to the preceding sentence, a "protected purchaser" (as contemplated by Article
Eight of the UCC) of the original Senior Note in lieu of which such replacement
Senior Note was issued presents for payment such original Senior Note, the
Issuer and the Indenture Trustee shall be entitled to recover such replacement
Senior Note (or such payment) from the Person to whom it was delivered or any
Person taking such replacement Senior Note from such Person to whom such
replacement Senior Note was delivered or any assignee of such Person, except a
"protected purchaser" (as contemplated by Article Eight of the UCC), and shall
be entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Issuer or the
Indenture Trustee in connection therewith.
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Upon the issuance of any replacement Senior Note under this Section,
the Issuer or the Indenture Trustee may require the payment by the related
Senior Noteholder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable
expenses (including the fees and expenses of the Indenture Trustee or the
Senior Note Registrar) connected therewith.
Every replacement Senior Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Senior Note shall
constitute an original additional contractual obligation of the Issuer, whether
or not the mutilated, destroyed, lost or stolen Senior 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 Senior Notes duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Senior Notes.
Section 2.06. Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Senior Note, the Issuer, the Indenture Trustee
and their respective agents may treat the Person in whose name any Senior Note
is registered (as of the date of determination) as the owner of such Senior
Note for the purpose of receiving payments of principal of and interest, if
any, on such Senior Note and for all other purposes whatsoever, whether or not
such Senior Note be overdue, and neither the Issuer, the Indenture Trustee nor
any of their respective agents shall be affected by notice to the contrary.
Section 2.07. Cancellation. All Senior Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Senior Notes
previously authenticated and delivered hereunder that the Issuer may have
acquired in any manner whatsoever, and all Senior Notes so delivered shall be
promptly cancelled by the Indenture Trustee. No Senior Notes shall be
authenticated in lieu of or in exchange for any Senior Notes cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Senior Notes may be held or disposed of by the Indenture Trustee in
accordance with its standard retention or disposal policy as in effect at the
time unless the Issuer shall direct by an Issuer Order that they be destroyed
or returned to it; provided, that such Issuer Order is timely and that such
Senior Notes have not been previously disposed of by the Indenture Trustee.
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Section 2.08. Release of Collateral. Subject to Section 11.01 and the
terms of the Basic Documents, the Indenture Trustee shall release property from
the lien of this Indenture only upon receipt of an Issuer Request.
Section 2.09. Book-Entry Notes. Unless otherwise specified, the Senior
Notes (except for any Residual Notes), upon original issuance, will be issued
in the form of one or more typewritten Senior Notes representing the Book-Entry
Notes, to be delivered to the Indenture Trustee, as agent for DTC, the initial
Clearing Agency, by, or on behalf of, the Issuer. One fully registered Senior
Note shall be issued with respect to each $100 million in principal amount of
each Class of Senior Notes or such lesser amount as necessary. Such Senior
Notes shall initially be registered on the Senior Note Register in the name of
Cede & Co., the nominee of the initial Clearing Agency, and no Senior Note
Owner shall receive a Definitive Note representing such Senior Note Owner's
interest in such Senior Note except as provided in Section 2.11. Unless and
until Definitive Notes have been issued to Senior Note Owners pursuant to
Section 2.11:
(a) the provisions of this Section shall be in full force and effect;
(b) the Senior 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 Senior Notes and the
giving of instructions or directions hereunder) as the sole Senior Noteholder,
and shall have no obligation to Senior Note Owners;
(c) to the extent that the provisions of this Section conflict with
any other provisions of this Indenture, the provisions of this Section shall
control;
(d) the rights of Senior Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by law and
agreements between or among such Senior Note Owners and the Clearing Agency or
Clearing Agency Participants; pursuant to the Depository Agreement, unless and
until Definitive Notes are issued pursuant to Section 2.11, the initial
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal of and interest on
the Senior Notes to such Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Senior Noteholders evidencing a
specified percentage of the Outstanding Amount, the Clearing Agency shall be
deemed to represent such percentage only to the extent that it has received
instructions to such effect from Senior Note Owners or Clearing Agency
Participants owning or representing, respectively, such required percentage of
the beneficial interest in the Senior Notes and has delivered such instructions
to the Indenture Trustee.
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Section 2.10. Notices to Clearing Agency. Whenever a notice or other
communication to Senior Noteholders is required under this Indenture, unless
and until Definitive Notes shall have been issued to Senior Note Owners
pursuant to Section 2.11, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Senior Noteholders to the
Clearing Agency, and shall have no obligation to the Senior Note Owners.
Section 2.11. Definitive Notes. If (i) (A) the Administrator advises
the Indenture Trustee in writing that the Clearing Agency is no longer willing
or able to properly discharge its responsibilities as described in the
Depository Agreement and (B) the Indenture Trustee or the Administrator is
unable to locate a qualified successor, (ii) the Administrator at its option
advises the Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after an Indenture
Default, Senior Note Owners representing in the aggregate not less than 51 % of
the Outstanding Amount advise the Indenture Trustee through the Clearing Agency
and its Participants in writing that the continuation of a book-entry system
through the Clearing Agency or its successor is no longer in the best interest
of Senior Note Owners, the Indenture Trustee shall be required to notify all
Senior Note Owners, through the Clearing Agency, of the occurrence of such
event and the availability through the Clearing Agency of Definitive Notes to
Senior Note Owners requesting the same. Upon surrender to the Indenture Trustee
by the Clearing Agency of the Senior Note or Senior Notes representing the
Book-Entry Notes and the receipt of instructions for re-registration, the
Indenture Trustee shall issue Definitive Notes to Senior Note Owners, who
thereupon shall become Senior Noteholders for all purposes of this Indenture.
None of the Owner Trustee, the Senior 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.
The Indenture Trustee shall not be liable if the Indenture Trustee or
the Administrator is unable to locate a qualified successor Clearing Agency.
The Definitive Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of such methods (with or without steel engraved
borders), all as determined by the officers executing such Senior Notes, as
evidenced by their execution of such Senior Notes.
If Definitive Notes are issued and the Indenture Trustee is not the
Senior Note Registrar, the Owner Trustee shall furnish or cause to be furnished
to the Indenture Trustee a list of the names and addresses of the Senior
Noteholders (i) as of each Record Date, within five days thereafter and (ii) as
of not more than ten days prior to the time such list is furnished, within 30
days after receipt by the Owner Trustee of a written request therefor.
Section 2.12. Authenticating Agents. Upon the request of the Issuer,
the Indenture Trustee shall, and if the Indenture Trustee so chooses the
Indenture Trustee may, appoint one or more Authenticating Agents with power to
act on its behalf and subject to its direction in the authentication of Senior
Notes in connection with issuance, transfers and exchanges under Sections 2.02,
2.04, 2.05 and 9.05, as fully to all intents and purposes as though each such
Authenticating Agent had been expressly authorized by such Sections to
authenticate such Senior Notes. For all purposes of this Indenture, the
authentication of Senior Notes by an Authenticating Agent pursuant to this
Section shall be deemed to be the authentication of Senior Notes by the
Indenture Trustee.
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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 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 Issuer. The Indenture
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and the
Issuer. Upon receiving such notice of resignation or upon such termination, the
Indenture Trustee shall promptly appoint a successor Authenticating Agent and
shall give written notice of such appointment to the Issuer.
The Indenture Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services and reimbursement for its
reasonable expenses relating thereto, and the Indenture Trustee shall be
entitled to be reimbursed for all such payments, subject to Section 6.07. The
provisions of Sections 2.07 and 6.04 shall be applicable to any Authenticating
Agent.
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ARTICLE THREE
COVENANTS
Section 3.01. Payment of Principal and Interest. The Issuer shall duly
and punctually pay the principal of and interest on the Senior Notes in
accordance with the terms of the Senior Notes and this Indenture. Without
limiting the foregoing, subject to Section 8.04, the Issuer shall cause to be
distributed all amounts on deposit in the Note Distribution Account on each
Payment Date that have been deposited therein for the benefit of the Senior
Notes as set forth in Section 8.04. Amounts properly withheld under the Code by
any Person from a payment to any Senior Noteholder of interest or principal
shall be considered to have been paid by the Issuer to such Senior Noteholder
for all purposes of this Indenture.
Section 3.02. Maintenance of Office or Agency. The Senior Note
Registrar, on behalf of the Issuer, shall maintain at the Corporate Trust
Office or at such other location in the Borough of Manhattan, The City of New
York, chosen by the Senior Note Registrar, acting for the Issuer, an office or
agency where Senior Notes may be surrendered for registration of transfer or
exchange, and where notices to and demands upon the Issuer in respect of the
Senior Notes and this Indenture may be served. The Issuer hereby appoints the
Indenture Trustee as its agent to receive all such surrenders, notices and
demands. 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 3.03. Money for Payments to be Held in Trust. As provided in
Sections 8.04 and 5.04(b), all payments of amounts due and payable with respect
to any Senior Notes that are to be made from amounts withdrawn from the Note
Distribution Account shall be made on behalf of the Issuer by the Indenture
Trustee or by another Paying Agent, and no amounts so withdrawn therefrom for
payments on Senior Notes shall be paid over to the Issuer except as provided in
this Section.
On each Payment Date and Redemption Date, the Issuer shall deposit or
cause to be deposited into the Note Distribution Account an aggregate sum
sufficient to pay the amounts then becoming due under the Senior Notes, and the
Paying Agent shall hold such sum 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 any failure by the Issuer to effect
such deposit.
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 to the extent relevant),
subject to the provisions of this Section, that such Paying Agent shall:
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(a) hold all sums held by it for the payment of amounts due with
respect to the Senior 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;
(b) give the Indenture Trustee notice of any default by the Issuer of
which it has actual knowledge (or any other obligor upon the Senior Notes) in
the making of any payment required to be made with respect to the Senior Notes;
(c) 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;
(d) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Senior 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
(e) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Senior Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by
Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Indenture
Trustee upon the same trusts as those upon which such sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Indenture
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Senior Note and remaining unclaimed for two
years after such amount has become due and payable shall be discharged from
such trust and deposited by the Indenture Trustee into the 1999-A SUBI
Collection Account, and the related Senior Noteholder shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and
all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Issuer cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which date shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining shall be paid to the Administrator. The
Indenture Trustee shall also adopt and employ, at the expense of the Issuer,
any other reasonable means of notification of such repayment (including mailing
notice of such repayment to Senior Noteholders the Senior Notes of which have
been called but not surrendered for redemption or whose right to or interest in
monies due and payable but not claimed is determinable from the records of the
Indenture Trustee or any Paying Agent at the last address of record for each
such Senior Noteholder).
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Section 3.04. Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a 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, 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 Senior Notes, the Collateral and each other instrument or
agreement included in the Trust Estate.
Section 3.05. Protection of Trust Estate. The Issuer intends the
security interest Granted pursuant to this Indenture in favor of the Indenture
Trustee on behalf of the Senior Noteholders to be prior to all other liens in
respect of the Trust Estate, and the Issuer shall take all actions necessary to
obtain and maintain, for the benefit of the Indenture Trustee on behalf of the
Senior Noteholders, a first lien on and a first priority, perfected security
interest in the Trust Estate. The Issuer shall from time to time execute and
deliver all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and other
instruments, all as prepared by the Administrator and delivered to the Issuer,
and shall take such other action necessary or advisable to:
(a) Grant more effectively all or any portion of the Trust Estate;
(b) maintain or preserve the lien and security interest (and the
priority thereof) created by this Indenture or carry out more effectively the
purposes hereof;
(c) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(d) enforce any of the Collateral;
(e) preserve and defend title to the Trust Estate and the rights of
the Indenture Trustee and the Senior Noteholders in the Trust Estate against
the claims of all Persons; or
(f) pay all taxes or assessments levied or assessed upon the Trust
Estate when due. The Issuer hereby designates the Indenture Trustee its agent
and attorney-in-fact to execute all financing statements, continuation
statements or other instruments required to be executed pursuant to this
Section.
Section 3.06. Opinions as to Trust Estate.
(a) On the Closing Date, the Issuer shall furnish or cause to be
furnished to the Indenture Trustee, an Opinion of Counsel to the effect that,
in the opinion of such counsel, either (i) all financing statements and
continuation statements have been executed and filed that are necessary to
create and maintain the lien and security interest of the Indenture Trustee in
the Collateral and reciting the details of such action, or (ii) no such action
is necessary to create and maintain such lien and security interest.
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(b) On or before April 30 of each calendar year, beginning with April
30, 2000, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel to the effect that in the opinion of such counsel, either (i) all
financing statements and continuation statements have been executed and filed
that are necessary to continue the lien and security interest of the Indenture
Trustee in the Collateral and reciting the details of such filings or referring
to prior Opinions of Counsel in which such details are given, or (ii) no such
action is necessary to continue such lien and security interest.
Section 3.07. Performance of Obligations; Administration of the 1999-A
SUBI Assets.
(a) The Issuer shall not take any action and shall use its best
efforts not to permit any action to be taken by others, including the
Administrator, that would release any Person from any of such Person's material
covenants or obligations under any instrument or agreement included in the
Trust Estate or that would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such instrument or agreement, except as expressly
provided in the Basic Documents or such other instrument or agreement.
(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 Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Administrator, and the Administrator has agreed,
to assist the Issuer in performing its duties under this Indenture.
(c) The Issuer shall, and, shall cause the Administrator and the
Administrative Agent to, punctually perform and observe all of its obligations
and agreements contained in this Indenture, the other Basic Documents and the
instruments and agreements included in the Trust Estate, including filing or
causing to be filed all UCC financing statements and continuation statements
required to be filed by the terms of this Indenture and the other Basic
Documents in accordance with and within the time periods provided for herein
and therein. Except as otherwise expressly provided therein, the Issuer, as a
party to the Basic Documents and as Holder of the 99% 1999-A Vehicle SUBI
Certificate and pledgee of the 99% 1999-A Lease SUBI Certificate, shall not,
and shall cause each of the Administrative Agent and the Administrator not to,
modify, amend, supplement, waive or terminate any Basic Document or any
provision thereof without the consent of the Indenture Trustee or the Senior
Noteholders of at least a majority of the Outstanding Amount or such greater
percentage as may be specified in the particular provision or Basic Document.
(d) Administrative Agent Defaults may occur with respect to the
Indenture Trustee as assignee of the Issuer. If the Issuer or the Indenture
Trustee shall have knowledge of the occurrence of an Administrative Agent
Default, such entity shall promptly notify the other entity and each Rating
Agency thereof, and shall specify in such notice the action, if any, the action
the other entity is taking in respect of such default. If an Administrative
Agent Default shall arise from the failure of the Administrative Agent to
perform any of its duties or obligations under the Administration Agreement
with respect to the 1999-A SUBI Assets, the Issuer shall take all reasonable
steps available to it to remedy such failure. Upon the occurrence of an
Administrative Agent Default with respect to the 1999-A SUBI, the Indenture
Trustee may terminate all of the rights and obligations of the Administrative
Agent with respect to the 1999-A SUBI only, and a successor Administrative
Agent shall be appointed pursuant to the Administration Agreement.
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(e) Upon any termination of the Administrative Agent's rights and
powers or resignation of the Administrative Agent pursuant to the
Administration Agreement, the Issuer or the Indenture Trustee shall promptly,
but in any event within two Business Days of such termination or resignation,
notify the other entity thereof. As soon as a successor Administrative Agent is
appointed pursuant to the Administration Agreement, the Issuer or the Indenture
Trustee shall notify the other entity of such appointment, specifying in such
notice the name and address of such successor Administrative Agent.
Section 3.08. Negative Covenants. So long as any Senior Notes are
Outstanding, the Issuer shall not:
(a) engage in any activities other than financing, acquiring, owning,
leasing (subject to the lien of this Indenture), pledging and managing the
1999-A SUBI Certificates as contemplated by this Indenture and the other Basic
Documents;
(b) other than the lease of the 99% 1999-A Vehicle SUBI Certificate
pursuant to the Program Operating Lease, which lease is subject to the lien of
this Indenture, and except as expressly permitted herein, in the Program
Operating Lease and in the other Basic Documents, sell, transfer, exchange or
otherwise dispose of any of the assets of the Issuer;
(c) claim any credit on or make any deduction from the principal or
interest payable in respect of the Senior 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 Senior Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Trust Estate;
(d) (i) permit the validity or effectiveness of this Indenture to be
impaired, 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 under this Indenture, except as may be expressly
permitted hereby, (ii) permit any lien, charge, excise, claim, security
interest, mortgage or other encumbrance (other than the lien of this Indenture)
to be created on or extend to or otherwise arise upon or burden the Trust
Estate, 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 1999-A SUBI Asset and arising solely as a result of an
action or omission of the related Lessee) or (iii) except as otherwise provided
in the Basic Documents, permit the lien of this Indenture not to constitute a
valid first priority (other than with respect to any such tax, mechanics' or
other lien) security interest in the Trust Estate;
(e) incur, assume or guarantee any indebtedness other than
indebtedness incurred in accordance with the Basic Documents; or
(f) except as otherwise permitted by the Basic Documents, dissolve or
liquidate in whole or in part.
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Section 3.09. Issuer Certificates and Reports.
(a) The Issuer shall deliver to the Indenture Trustee and each Rating
Agency, within 120 days after the end of each calendar year (commencing with
the year ending December 31, 1999), an Officer's Certificate stating, as to
the Authorized Officer signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such year (or
such shorter period in the case of the first such Officer's
Certificate) and of the Issuer's performance under this
Indenture has been made under such Authorized Officer's
supervision;
(ii) to the best of such Authorized Officer's knowledge, based on
such review:
(A) all the dispositions of Collateral and cash payments out of
the Accounts described in clauses (A) and (B) of Section
11.01(b)(v) that occurred during the preceding year (or shorter
period in the case of the first such Officer's Certificate) were
made in the ordinary course of the Issuer's business and the
proceeds thereof were applied in accordance with the Basic
Documents; and
(B) the Issuer has complied with all conditions and covenants
under this Indenture throughout such year (or such shorter
period in the case of the first such Officer's Certificate), or,
if there has been a Default in the compliance of any such
condition or covenant, specifying each such Default known to
such Authorized Officer and the nature and status thereof.
(b) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the
annual reports and such other information, documents and reports
(or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) as the Issuer may be required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in accordance
with rules and regulations prescribed from time to time by the
Commission such other information, documents and reports with
respect to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Senior Noteholders as required by TIA
Section 313(c) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses
(i) and (ii) of this Section 3.09(b) and pursuant to rules and
regulations prescribed from time to time by the Commission.
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(c) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
Section 3.10. Restrictions on Certain Other Activities. Except as
otherwise provided in the Basic Documents, the Issuer shall not: (i) engage in
any activities other than financing, acquiring, owning, leasing (subject to the
lien of this Indenture), pledging and managing the 1999-A SUBI Certificates in
the manner contemplated by the Basic Documents; (ii) issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness; (iii) make any loan, advance or credit to, 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, 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; or (iv) make any expenditure (by long-term
or operating lease or otherwise) for capital assets (either realty or
personalty).
Section 3.11. Notice of Defaults. The Issuer agrees to give the
Indenture Trustee and each Rating Agency prompt written notice of each
Indenture Default hereunder on the part of the Administrator and each Program
Operating Lease Default on the part of the Transferor as lessee under the
Program Operating Lease.
Section 3.12. Further Instruments and Acts. Upon request of the
Indenture Trustee, 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 purposes of this Indenture.
Section 3.13. Delivery of 99% 1999-A Vehicle SUBI Certificate. On the
Closing Date, the Issuer shall deliver or cause to be delivered to the
Indenture Trustee as security for its obligations hereunder, the 99% 1999-A
Vehicle SUBI Certificate and the pledged 99% 1999-A Lease SUBI Certificate. The
Indenture Trustee shall take possession of the 99% 1999-A SUBI Certificates in
New York and shall at all times during the period of this Indenture maintain
custody of the 99% 1999-A SUBI Certificates in New York.
Section 3.14. Delivery of the Subordinated Notes. Pursuant to Section
2.01 of the Issuer SUBI Certificate Transfer Agreement, the Transferor shall
pledge all payments in respect of the Subordinated Notes to the Reserve Fund as
security for the Secured Obligations and upon the issuance of the Subordinated
Notes to the Transferor, the Issuer shall deliver the Subordinated Notes
directly to the Indenture Trustee as security for its obligations hereunder.
The Indenture Trustee shall take possession of the Subordinated Notes in New
York and shall at all times during the period of the Indenture maintain custody
of the Subordinated Notes in New York.
Section 3.15. Compliance with Laws. The Issuer shall comply with the
requirements of all applicable laws, the non-compliance with which would,
individually or in the aggregate, materially and adversely affect the ability
of the Issuer to perform its obligations under the Senior Notes, this Indenture
or any other Basic Document.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall discharge with respect to the Collateral securing the Senior Notes except
as to (a) rights of registration of transfer and exchange, (b) substitution of
mutilated, destroyed, lost or stolen Senior Notes, (c) rights of Senior
Noteholders to receive payments of principal thereof and interest thereon, (d)
Sections 3.03, 3.04, 3.05, 3.08, 3.10, 3.11, 3.13 and 3.14, (e) the rights,
obligations and immunities of the Indenture Trustee hereunder (including the
rights of the Indenture Trustee under Section 6.07 and the obligations of the
Indenture Trustee under Section 4.02) and (f) the rights of Senior 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 and at the expense and on behalf of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(i) either (A) all Senior Notes theretofore authenticated and
delivered (other than (1) Senior Notes that have been mutilated,
destroyed, lost or stolen and that have been replaced or paid as
provided in Section 2.05) and (2) Senior Notes for whose payment
money has theretofore been deposited in trust or segregated and
held in trust by the Issuer and thereafter paid to the Persons
entitled thereto or discharged from such trust, as provided in
Section 3.03) have been delivered to the Indenture Trustee for
cancellation; or (B) all Senior Notes not theretofore delivered
to the Indenture Trustee for cancellation (1) have become due
and payable, (2) will become due and payable on the applicable
Senior Note Final Payment Date within one year or (3) are to be
called for redemption within one year under arrangements
satisfactory to the Indenture Trustee for the giving of notice
of redemption by the Indenture Trustee in the name, and at the
expense, of the Issuer, and the Issuer, in the case of clauses
(1), (2) or (3) above, has irrevocably deposited or caused to be
irrevocably deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United States
(that will mature prior to the date such amounts are payable),
in trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Senior Notes
(including interest and any fees due and payable to the Owner
Trustee or the Indenture Trustee) not theretofore delivered to
the Indenture Trustee for cancellation, when due, to the
applicable Senior Note Final Payment Date for each Class, or to
the Redemption Date (if Senior Notes shall have been called for
redemption pursuant to Section 10.01), as the case may be;
(ii) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(iii) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel, each meeting the
applicable requirements of Section 11.01 and, subject to Section
11.02, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this
Indenture have been complied with (and, in the case of an
Officer's Certificate, stating that the Rating Agency Condition
has been satisfied).
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Section 4.02. Application of Trust Money. All monies deposited with
the Indenture Trustee pursuant to Section 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Senior Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Senior Noteholders of the particular
Senior Notes 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. Such monies need not be segregated from other funds
except to the extent required herein or in the Administration Agreement or as
required by law.
Section 4.03. Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Senior Notes, all monies then held by any Paying Agent other than the Indenture
Trustee under the provisions of this Indenture with respect to such Senior
Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to be
held and applied according to Section 3.03 and such Paying Agent shall
thereupon be released from all further liability with respect to such monies.
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ARTICLE FIVE
INDENTURE DEFAULT
Section 5.01. Indenture Defaults. Any one of the following events
(whatever the reason for such Indenture Default and whether it shall be
voluntary or involuntary or effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body) shall constitute a default under this
Indenture (each, an "Indenture Default"):
(a) default in the payment of any interest on any Senior Note when the
same becomes due and payable, and such default shall continue for a period of
30 days or more;
(b) default in the payment of principal of any Senior Note at the
Senior Note Final Payment Date or the Redemption Date;
(c) the occurrence of a Program Operating Lease Default;
(d) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere in
this Section specifically dealt with), or any representation or warranty of the
Issuer made in this Indenture or in any certificate or other writing delivered
pursuant hereto or in connection herewith proving to have been incorrect in any
material respect as of the time when the same shall have been made, and such
default shall continue or not be cured, or the circumstance or condition in
respect of which such misrepresentation or warranty was incorrect shall not
have been eliminated or otherwise cured, for a period of 30 days after there
shall have been given, by registered or certified mail, to the Issuer by the
Indenture Trustee or to the Issuer and the Indenture Trustee by Senior
Noteholders representing at least 25% of the Outstanding Amount, a written
notice specifying such default or incorrect representation or warranty and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder;
(e) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part
of the Trust Estate in an involuntary case under any applicable federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial part of
the Trust Estate, or ordering the winding up or liquidation of the Issuer's
affairs, and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(f) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, the consent by the Issuer to
the appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Trust Estate, the making by the Issuer of any general
assignment for the benefit of creditors, the failure by the Issuer generally to
pay its debts as such debts become due or the taking of action by the Issuer in
furtherance of any of the foregoing.
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The Issuer shall deliver to the Indenture Trustee, each Rating Agency
and each Senior Noteholder within five days after the occurrence thereof
written notice in the form of an Officer's Certificate of any event that with
the giving of notice and the lapse of time would become an Indenture Default
under clauses (c), (d) or (e), its status and what action the Issuer is taking
or proposes to take with respect thereto.
Subject to the provisions herein relating to the duties of the
Indenture Trustee, if an Indenture Default occurs and is continuing, the
Indenture Trustee shall be under no obligation to exercise any of the rights or
powers under this Indenture at the request or direction of any Senior
Noteholder, if the Indenture Trustee reasonably believes that it will not be
adequately indemnified against the costs, expenses and liabilities that might
be incurred by it in complying with such request. Subject to such provisions
for indemnification and certain limitations contained herein, Senior
Noteholders holding not less than a majority of the Outstanding Amount shall
have the right to direct the time, method and place of conducting any
proceeding or any remedy available to the Indenture Trustee or exercising any
trust power conferred on the Indenture Trustee, and Senior Noteholders holding
not less than a majority of the Outstanding Amount may, in certain cases, waive
any default with respect thereto, except a default in the payment of principal
or interest or a default in respect of a covenant or provision of the Indenture
that cannot be modified without the waiver or consent of all of the holders of
the Outstanding Senior Notes.
Section 5.02. Acceleration of Maturity; Waiver of Indenture Default.
If an Indenture Default should occur and be continuing, the Indenture Trustee
or Senior Noteholders representing a majority of the Outstanding Amount may
declare the principal of the Senior Notes to be immediately due and payable.
Upon such declaration, the Indenture Trustee shall promptly provide written
notice to each Rating Agency. Such declaration may be rescinded by Senior
Noteholders holding a majority of the Outstanding Amount before a judgment or
decree for payment of the amount due has been obtained by the Indenture Trustee
if (a) the Issuer has deposited with the Indenture Trustee an amount sufficient
to pay (i) all interest on and principal of the Senior Notes as if the
Indenture Default giving rise to such declaration had not occurred and (ii) all
amounts advanced by the Indenture Trustee and its costs and expenses and (b)
all Indenture Defaults (other than the nonpayment of principal of the Senior
Notes that has become due solely by such acceleration) have been cured or
waived.
At any time prior to the declaration of the acceleration of the
maturity of the Senior Notes, Senior Noteholders holding not less than a
majority of the Outstanding Amount, by written notice to the Issuer and the
Indenture Trustee, may waive such Indenture Default and its consequences,
except a default (i) in payment of principal of or interest on the Senior Notes
or (ii) in respect of any covenant or provision in this Indenture that cannot
be modified or amended without the unanimous consent of the Senior Noteholders.
No such waiver shall affect any subsequent default or impair any right
consequent thereto.
If the Senior Notes have been declared due and payable following an
Indenture Default, the Indenture Trustee may institute proceedings to collect
amounts due, exercise remedies as a secured party (including foreclosure or
sale of the Trust Estate) or elect to maintain the Trust Estate and continue to
apply the proceeds from the Trust Estate as if there had been no declaration of
acceleration. Any sale of the Trust Estate by the Indenture Trustee will be
subject to the terms and conditions of Section 5.04.
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Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
(a) The Issuer covenants that if there is a default in the payment of
(i) any interest on the Senior Notes when the same becomes due and payable, and
such default continues for a period of five days or (ii) the principal of the
Senior Notes at the Senior Note Final Payment Date or the Redemption Date, the
Issuer shall, upon demand of the Indenture Trustee, pay to the Indenture
Trustee, for the benefit of such Senior Noteholders, the entire amount then due
and payable on such Senior Notes for principal and interest, with interest on
the overdue principal, and, to the extent payment at such rate of interest
shall be legally enforceable, upon overdue installments of interest, at the
Overdue Interest Rate and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents, attorneys and counsel.
(b) In case the Issuer shall fail forthwith to pay amounts described
in Section 5.03(a) upon demand, the Indenture Trustee, in its own name and as
trustee of an express trust, may institute a Proceeding for the collection of
the sums so due and unpaid, and may prosecute such Proceeding to judgment or
final decree, and may enforce the same against the Issuer or other obligor upon
such Senior Notes and collect in the manner provided by law out of the property
of the Issuer or other obligor upon such Senior Notes, wherever situated, the
monies adjudged or decreed to be payable.
(c) If an Indenture Default occurs and is continuing, the Indenture
Trustee may, in its discretion, proceed to protect and enforce its rights and
the rights of the Senior Noteholders, by such appropriate Proceedings as the
Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any
other obligor upon the Senior 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 in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its property
or such other obligor or Person, or in case of any other comparable judicial
Proceedings relative to the Issuer or other obligor upon the Senior Notes, or
to the creditors or property of the Issuer or such other obligor, the Indenture
Trustee, irrespective of whether the principal of any Senior 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, shall be entitled and empowered, by
intervention in such Proceedings or otherwise:
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(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Senior
Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Indenture Trustee (including any claim for reasonable
compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances and disbursements made, by the
Indenture Trustee and each predecessor Indenture Trustee, except
as a result of negligence or bad faith) and of the Senior
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Senior Noteholders in any election of a trustee, a
standby trustee or Person performing similar functions in any
such Proceedings; to collect and receive any monies or other
property payable or deliverable on any such claims and to
distribute all amounts received with respect to the claims of
the Senior Noteholders and the Indenture Trustee on their
behalf; and
(iii) 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 Senior 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 Senior Noteholder to make
payments to the Indenture Trustee and, in the event the Indenture Trustee shall
consent to the making of payments directly to such Senior Noteholders, to pay
to the Indenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Indenture Trustee, each predecessor Indenture
Trustee and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred and all advances and disbursements made by
the Indenture Trustee and each predecessor Indenture Trustee except as a result
of negligence or bad faith, and any other amounts due the Indenture Trustee
under Section 6.07.
(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 Senior Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Senior Notes or the rights of any
Senior Noteholder or to vote in respect of the claim of any Senior 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 the Senior Notes, may be enforced by the Indenture Trustee without the
possession of the Senior 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,
advances, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel shall be for the ratable benefit of the Senior Noteholders in respect
of which such judgment has been recovered.
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(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Senior Noteholders, and it shall not be necessary to
make any Senior Noteholder a party to any such Proceedings.
Section 5.04. Remedies; Priorities.
(a) If an Indenture Default shall have occurred and be continuing, the
Indenture Trustee may do one or more of the following (subject to Sections 5.02
and 5.05):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on
the Senior Notes or under this Indenture with respect thereto,
whether by declaration or otherwise, enforce any judgment
obtained, and collect from the Issuer and any other obligor upon
such Senior 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 UCC and take
any other appropriate action to protect and enforce the rights
and remedies of the Indenture Trustee and the Senior
Noteholders; and
(iv) subject to Section 5.17, after an acceleration of the maturity
of the Senior Notes pursuant to Section 5.02, 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 unless directed to sell the Trust Estate in accordance
with Section 9.02 of the Trust Agreement, the Indenture Trustee may not sell or
otherwise liquidate the Trust Estate following an Indenture Default, other than
an Indenture Default described in Section 5.01 (a) or (b), unless (A) Senior
Noteholders holding 100% of the Outstanding Amount consent thereto, (B) the
proceeds of such sale are sufficient to discharge in full all amounts then due
and unpaid upon all outstanding Securities (other than Transferor Trust
Certificate) or (C) 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 Senior Notes as they would have become due if the Senior Notes
had not been declared due and payable and the Indenture Trustee obtains the
consent of Senior Noteholders holding not less than 66?% of the Outstanding
Amount; and provided further, that the Indenture Trustee may not sell the Trust
Estate, other than a sale resulting from the bankruptcy, insolvency or
termination of the Transferor pursuant to Section 9.02 of the Trust Agreement,
unless it shall first have obtained an Opinion of Counsel that such sale will
not cause the Origination Trust or an interest therein or portion thereof to be
classified as an association (or a publicly traded partnership) taxable as a
corporation for federal income tax purposes. In determining such sufficiency or
insufficiency with respect to clauses (B) and (C) of the preceding sentence,
the Indenture Trustee may but need not obtain (at the expense of the Issuer)
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.
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(b) If the Indenture Trustee collects any money or property pursuant
to this Article Five upon sale of the Trust Estate, it shall pay out such money
or property held as Collateral (including available monies on deposit in the
Reserve Fund) and deposited in the Note Distribution Account pursuant to
Section 12.05(b) of the SUBI Trust Agreement after giving effect to the
distributions set forth in Section 12.05(b) of the SUBI Trust Agreement, for
the benefit of the Securityholders in the following order:
(i) to Senior Noteholders for the payments of interest which is due
and unpaid on the Senior Notes (including any overdue interest,
and to the extent permitted under applicable law, interest on
any overdue interest at the Overdue Interest Rate) in respect of
which or for the benefit of which such money has been collected;
(ii) to the Subordinated Noteholder (which amounts shall be deposited
into the Reserve Fund), for the payment of interest that is due
and unpaid (including any overdue interest and, to the extent
permitted under applicable law, interest on any overdue interest
at the Subordinated Note Rate) on the Subordinated Notes;
(iii) to the Certificate Distribution Account for the payment of
interest which is due and unpaid (including any overdue interest
and, to the extent permitted under applicable law, interest on
any overdue interest at the Certificate Rate) on the
Certificates;
(iv) to the Senior Noteholders in payment of the principal amount due
and unpaid on the Senior Notes;
(v) to the Subordinated Noteholder (which amounts shall be deposited
into the Reserve Fund) and to the Certificate Distribution
Account for distribution to the Trust Certificateholders, for
amounts due and unpaid in respect of the principal amount due
and unpaid on the Subordinated Notes and the Trust Certificates,
respectively, ratably, without preference or priority of any
kind, according to the amounts due and payable to the
Subordinated Noteholder and the Trust Certificateholders;
(vi) to the Transferor, in its capacity as the Subordinated
Noteholder, up to the amount deposited into the Reserve Fund in
respect of the Subordinated Notes on or prior to the date of the
preceding distributions; and
(vii) any remaining amounts, shall be paid to the Transferor.
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(c) The Indenture Trustee may fix a record date and payment date for
any payment to Senior Noteholders pursuant to this Section. At least 15 days
before such record date, the Issuer shall mail to each Senior Noteholder and
the Indenture Trustee a notice that states the record date, the payment date
and the amount to be paid.
Section 5.05. Optional Preservation of the 1999-A SUBI Assets. If the
Senior Notes have been declared to be due and payable under Section 5.02
following an Indenture Default and such declaration and its consequences have
not been rescinded and annulled, the Indenture Trustee may, unless directed to
sell pursuant to Section 9.02 of the Trust Agreement, but need not, elect to
maintain possession of the Trust Estate and continue to apply the proceeds
thereof in accordance with Section 3.01 and 8.04. It is the intent of the
parties hereto and the Senior Noteholders that there be at all times sufficient
funds for the payment of principal of and interest on the Senior Notes, and the
Indenture Trustee shall take such intent 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 (at the expense of the Issuer) 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. Notwithstanding the foregoing provisions of this
Section and Section 5.04, the Indenture Trustee shall sell the Trust Estate if
so instructed by the Owner Trustee pursuant to Section 9.02 of the Trust
Agreement, and the proceeds of such sale distributed in accordance with Section
12.05(b) of the SUBI Trust Agreement.
Section 5.06. Limitation of Suits.
(a) No holder of any Senior Note shall have any right to institute any
Proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless: (i) such Senior Noteholder previously has given to the Indenture
Trustee written notice of a continuing Indenture Default, (ii) Senior
Noteholders holding not less than 25% of the Outstanding Amount have made
written request to the Indenture Trustee to institute such Proceeding in
respect of such Indenture Default in its own name as Indenture Trustee, (iii)
such Senior Noteholder has offered the Indenture Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in complying with
such request, (iv) the Indenture Trustee has for 60 days failed to institute
such Proceedings and (v) no direction inconsistent with such written request
has been given to the Indenture Trustee during such 60 day period by Senior
Noteholders holding a majority of the Outstanding Amount.
No Senior Noteholder or group of Senior 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 Senior
Noteholders or to obtain or to seek to obtain priority or preference over any
other Senior Noteholder 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 Senior
Noteholders, each representing less than a majority of the Outstanding Amount,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
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(b) No Senior Noteholder shall have any right to vote except as
provided pursuant to this Indenture and the Senior Notes, nor any right in any
manner to otherwise control the operation and management of the Issuer.
However, in connection with any action as to which Senior Noteholders are
entitled to vote or consent under this Indenture and the Senior Notes, the
Issuer may set a record date for purposes of determining the identity of
Noteholders entitled to vote or consent in accordance with TIA Section 316(c).
Section 5.07. Unconditional Rights of Senior Noteholders to Receive
Principal and Interest. Notwithstanding any other provision in this Indenture,
any Senior Noteholder shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on, if any,
such Senior Note on or after the respective due dates thereof expressed in such
Senior Note or 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 Senior
Noteholder.
Section 5.08. Restoration of Rights and Remedies. If the Indenture
Trustee or any Senior Noteholder has instituted any Proceeding to enforce any
right or remedy under this Indenture and such Proceeding has been discontinued
or abandoned for any reason or has been determined adversely to the Indenture
Trustee or such Senior Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Senior 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 Senior Noteholders shall continue as though no such
Proceeding had been instituted.
Section 5.09. Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or the Senior
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, in equity or otherwise. The assertion or employment of any
right or remedy hereunder or otherwise shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.10. Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Senior Noteholder to exercise any right or remedy
accruing upon any Default or Indenture Default shall impair any such right or
remedy or constitute a waiver of any such Default or Indenture Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Indenture Trustee or the Senior Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Senior Noteholders, as the case may be.
Section 5.11. Control by Senior Noteholders. Subject to the provisions
of Sections 5.06, 6.02(d) and 6.02(e), Senior Noteholders holding not less than
a majority of the Outstanding Amount 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 Senior Notes or with respect to the
exercise of any trust or power conferred on the Indenture Trustee, provided
that:
(a) such direction shall not be in conflict with any rule of law or
this Indenture;
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(b) subject to Section 5.04, any direction to the Indenture Trustee
to, sell or liquidate the Trust Estate shall be made by Senior Noteholders
holding not less than 100% of the Outstanding Amount;
(c) if the conditions set forth in Section 5.05 have been satisfied
and the Indenture Trustee elects to retain the Trust Estate pursuant to such
Section, and except in the case of a sale of the Trust Estate pursuant to
Section 9.02 of the Trust Agreement, then any direction to the Indenture
Trustee by Senior Noteholders holding less than 100% of the Outstanding Amount
to sell or liquidate the Trust Estate shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Senior Noteholders set forth in this
Section, subject to Section 6.01, the Indenture Trustee need not take any
action it determines might expose it to personal liability or might materially
adversely affect or unduly prejudice the rights of any Senior Noteholders not
consenting to such action.
Section 5.12. Waiver of Past Defaults. Prior to the acceleration of
the maturity of the Senior Notes as provided in Section 5.02, Senior
Noteholders holding not less than a majority of the Outstanding Amount may
waive any past Indenture Default and its consequences except an Indenture
Default (i) in payment of principal of or interest on the Senior Notes or (ii)
in respect of a covenant or provision hereof that cannot be modified or amended
without the consent of each Senior Noteholder. In the case of any such waiver,
the Issuer, the Indenture Trustee and the Senior Noteholders shall be restored
to their former positions and rights hereunder, respectively, but no such
waiver shall extend to any subsequent or other Indenture Default or impair any
right consequent thereto.
Upon any such waiver, such Indenture Default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Indenture
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 Indenture Default or impair any right consequent
thereto.
Section 5.13. Undertaking for Costs. All parties to this Indenture
agree, and each Senior Noteholder by such Senior Noteholder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Indenture Trustee for any action taken,
suffered or omitted by it as Indenture Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant, but the provisions of this Section shall not apply to (i) any suit
instituted by the Indenture Trustee, (ii) any suit instituted by any Senior
Noteholder or group of Senior Noteholders, in each case holding in the
aggregate more than 10% of the Outstanding Amount or (iii) any suit instituted
by any Senior Noteholder for the enforcement of the payment of principal of or
interest on any Senior Note on or after the related due dates expressed in such
Senior Note and in this Indenture (or, in the case of redemption, on or after
the Redemption Date).
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Section 5.14. Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture, and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Indenture Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 5.15. Action on Senior Notes. The Indenture Trustee's right to
seek and recover judgment on the Senior 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 Senior 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
5.04(b).
Section 5.16. Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so,
the Issuer shall take all such lawful action as the Indenture Trustee may
request to compel or secure the performance and observance by the Transferor
and the Administrative Agent, as applicable, of each of their obligations to
the Issuer under or in connection with the Program Operating Lease and the
Administration Agreement, respectively, in accordance with the terms thereof,
and to exercise any and all rights, remedies, powers and privileges lawfully
available to the Issuer under or in connection with each such 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 Administrative Agent
thereunder and the institution of legal or administrative actions or
proceedings to compel or secure performance by the Administrative Agent of its
obligations under the Administration Agreement. Upon the occurrence of a
Program Operating Lease Default, the Indenture Trustee, as assignee of the
rights of the Issuer in the Program Operating Lease pursuant to the Indenture
Trustee's security interest in the Trust Estate, shall be entitled to terminate
the Program Operating Lease. Upon such termination, the Issuer shall directly
receive all distributions with respect to, or shall have the right to sell, the
99% 1999-A Vehicle SUBI Certificate and to apply the funds received in respect
thereof to pay interest on and principal of the Securities.
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(b) If an Indenture Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of Senior
Noteholders holding not less than a majority of the Outstanding Amount, shall,
exercise all rights, remedies, powers, privileges and claims of the Issuer
against the Transferor, the Origination Trustee and the Administrative Agent
under or in connection with the Program Operating Lease, the Administration
Agreement and the Administration Supplement, respectively, including the right
or power to take any action to compel or secure performance or observance by
the Administrative Agent of its obligations to the Issuer thereunder and to
give any consent, request, notice, direction, approval, extension or waiver
under the Administration Agreement, and any right of the Issuer to take such
action shall be suspended.
Section 5.17. Sale of Trust Estate. If the Indenture Trustee acts to
sell the Trust Estate or any part thereof, pursuant to Section 5.04(a), the
Indenture Trustee shall publish a notice in an Authorized Newspaper stating
that the Indenture Trustee intends to effect such a sale in a commercially
reasonable manner and on commercially reasonable terms, which shall include the
solicitation of competitive bids. Following such publication, the Indenture
Trustee shall, unless otherwise prohibited by applicable law from any such
action, sell the Trust Estate or any part thereof, in such manner and on such
terms as provided above to the highest bidder, provided, however, that the
Indenture Trustee may from time to time postpone any sale by public
announcement made at the time and place of such sale. The Indenture Trustee
shall give notice to the Transferor and Administrative Agent of any proposed
sale, and the Transferor and Administrative Agent shall be permitted to bid for
the Trust Estate at any such sale. The Indenture Trustee may obtain a prior
determination from a conservator, receiver or trustee in bankruptcy of the
Issuer that the terms and manner of any proposed sale are commercially
reasonable. The power to effect any sale of any portion of the Trust Estate
pursuant to Section 5.04 and this Section 5.17 shall not be exhausted by any
one or more sales as to any portion of the Trust Estate remaining unsold, but
shall continue unimpaired until the entire Trust Estate shall has been sold or
all amounts payable on the Senior Notes shall have been paid.
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ARTICLE SIX
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee.
(a) If an Indenture Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and in the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Indenture 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 conforming to
the requirements of this Indenture; however, the Indenture
Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this
Indenture and the other Basic Documents to which the Indenture
Trustee is a party.
(c) The Indenture Trustee shall not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful,
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b);
(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) and (c).
(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.
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(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 Administration 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, if it shall have reasonable grounds to believe that
repayments of such funds or adequate indemnity against such risk or liability
is not reasonably assured 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.
(i) The Indenture Trustee shall not be deemed to have knowledge of any
Indenture Default or other event unless a Responsible Officer has actual
knowledge thereof or has received written notice thereof in accordance with the
provisions of this Indenture.
(j) Nothing contained herein shall be deemed to authorize the
Indenture Trustee to engage in any business operations or any activities other
than those set forth in this Indenture. Specifically, the Indenture Trustee
shall have no authority to engage in any business operations, acquire any
assets other than those specifically included in the Trust Estate under this
Indenture or otherwise vary the assets held by the Issuer. Similarly, the
Indenture Trustee shall have no discretionary duties other than performing
those ministerial acts set forth above necessary to accomplish the purpose of
the Issuer as set forth in this Indenture.
Section 6.02. Rights of Indenture Trustee.
(a) Except as provided by the second succeeding sentence, the
Indenture Trustee may conclusively rely and shall be protected in acting upon
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, note, direction,
demand, election or other paper or document believed by it to be genuine and to
have been signed or presented by the proper person. The Indenture Trustee need
not investigate any fact or matter stated in the document. Notwithstanding the
foregoing, the Indenture Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Indenture Trustee that shall be specifically
required to be furnished pursuant to any provision of this Indenture, shall
examine them to determine whether they comply as to form to the requirements of
this Indenture.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate (with respect to factual matters) or an
Opinion of Counsel, as applicable. The Indenture Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, the Administrator, any co-trustee or separate trustee appointed
in accordance with the provisions of Section 6.10 or any other such agent,
attorney, custodian or nominee appointed with due care by it hereunder.
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(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice of
such counsel or any Opinion of Counsel with respect to legal matters relating
to this Indenture and the Senior 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 or to institute, conduct
or defend any litigation under this Indenture or in relation to this Indenture
or to honor the request or direction of any of the Senior Noteholders pursuant
to this Indenture unless such Senior Noteholders shall have offered to the
Indenture Trustee reasonable security or indemnity against the reasonable
costs, expenses, disbursements, advances and liabilities that might be incurred
by it, its agents and its counsel in compliance with such request or direction;
provided, however, that the Indenture Trustee shall, upon the occurrence of an
Event of Default (that has not been cured), exercise the rights and powers
vested in it by this Indenture with reasonable care and skill.
(g) The Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by the holders of
Senior Notes evidencing not less than 25% of the Outstanding Amount; provided,
however, that if the payment within a reasonable time to the Indenture Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is, in the opinion of the Indenture Trustee, not
reasonably assured to the Indenture Trustee by the security afforded to it by
the terms of this Indenture, the Indenture Trustee may require reasonable
indemnity against such cost, expense or liability as a condition to so
proceeding. The reasonable expense of each such investigation shall be paid by
the Person making such request, or, if paid by the Indenture Trustee, shall be
reimbursed by the Person making such request upon demand.
(h) Any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request.
(i) The Indenture Trustee shall, for so long as any Senior Notes are
outstanding, be entitled to exercise all of the rights and powers of a
Beneficiary under the Basic Documents.
Section 6.03. Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Senior 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, Senior Note Registrar, co-registrar, co-paying agent, co-trustee or
separate trustee may do the same with like rights. The Indenture Trustee must,
however, comply with Section 6.11.
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Section 6.04. Indenture Trustee's Disclaimer. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, the Trust Estate or the Senior Notes, shall not be
accountable for the Issuer's use of the proceeds from the Senior Notes and
shall not be responsible for any statement in the Indenture or in any document
issued in connection with the sale of the Senior Notes or in the Senior Notes,
all of which shall be taken as the statements of the Issuer, other than the
Indenture Trustee's certificate of authentication.
Section 6.05. Notice of Defaults. If a Default occurs and is
continuing, and if it is known to a Responsible Officer of the Indenture
Trustee, the Indenture Trustee shall mail to each Senior Noteholder and each
Rating Agency notice of such Indenture Default within 90 days after it occurs.
Except in the case of a Default with respect to payment of principal of or
interest on any Senior Note (including payments pursuant to the redemption of
Senior Notes), the Indenture Trustee may withhold such notice if and so long as
a committee of its Responsible Officers in good faith determines that
withholding such notice is in the interests of the Senior Noteholders;
provided, however, that in the case of any Indenture Default of the character
specified in Section 5.01(e), no such notice shall be given until at least 30
days after the occurrence thereof.
Section 6.06. Reports by Indenture Trustee to Senior Noteholders. The
Indenture Trustee, at the expense of the Issuer, shall deliver to each Senior
Noteholder, not later than the latest date permitted by law, such information
as may be reasonably requested (and reasonably available to the Indenture
Trustee) to enable such holder to prepare its federal and state income tax
returns.
Section 6.07. Compensation and Indemnity. The Administrative Agent
shall, or shall cause the Administrator to, (i) pay to the Indenture Trustee
from time to time reasonable compensation for its services, (ii) reimburse the
Indenture Trustee for all reasonable expenses, advances and disbursements
reasonably incurred and (iii) indemnify the Indenture Trustee for, and hold it
harmless against, any and all loss, liability or expense (including reasonable
attorneys' fees) incurred by it in connection with the administration of the
Trust or the performance of its duties. The Indenture Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Indenture Trustee shall notify the Issuer and the Administrator
promptly of any claim for which it may seek indemnity. Failure by the Indenture
Trustee to so notify the Issuer and the Administrator shall not relieve the
Issuer or the Administrator of its obligations hereunder. The Issuer shall, or
shall cause the Administrator to, defend any such claim, and the Indenture
Trustee may have separate counsel and the Issuer shall, or shall cause the
Administrator to, pay the fees and expenses of such counsel. The Indenture
Trustee shall not be indemnified by the Administrative Agent against any loss,
liability or expense incurred by it through its own willful misconduct,
negligence or bad faith, except that the Indenture Trustee shall not be liable
(i) for any error of judgment made by it in good faith unless it is proved that
the Indenture Trustee was negligent in ascertaining the pertinent facts, (ii)
with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it from the Senior Noteholders in
accordance with the terms of this Indenture and (iii) for interest on any money
received by it except as the Indenture Trustee and the Issuer may agree in
writing. The Indenture Trustee shall not be deemed to have knowledge of any
event unless an officer of the Indenture Trustee has actual knowledge thereof
or has received written notice thereof.
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The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default set forth in Section
5.01(e) or (f) 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 6.08. Replacement of Indenture Trustee. Senior Noteholders
holding not less than a majority of the Outstanding Amount may remove the
Indenture Trustee without cause by so notifying the Indenture Trustee and the
Issuer, and following such removal may appoint a successor Indenture Trustee.
The Issuer shall give prompt written notice to each Rating Agency of such
removal. The Indenture Trustee may resign at any time by so notifying the
Issuer, the Administrative Agent and each Rating Agency. The Issuer shall
remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) a court having jurisdiction in the premises in respect of the
Indenture Trustee in an involuntary case or proceeding under
federal or state banking or bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, shall have entered
a decree or order granting relief or appointing a receiver,
liquidator, assignee, custodian, trustee, conservator,
sequestrator (or similar official) for the Indenture Trustee or
for any substantial part of the Indenture Trustee's property, or
ordering the winding-up or liquidation of the Indenture
Trustee's affairs, provided any such decree or order shall have
continued unstayed and in effect for a period of 30 consecutive
days;
(iii) the Indenture Trustee commences a voluntary case under any
federal or state banking or bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or consents to the
appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, conservator, sequestrator or other
similar official for the Indenture Trustee or for any
substantial part of the Indenture Trustee's property, or makes
any assignment for the benefit of creditors or fails generally
to pay its debts as such debts become due or takes any corporate
action in furtherance of any of the foregoing; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
Upon the resignation or required removal of the Indenture Trustee, or
the failure of the Senior Noteholders to appoint a successor Indenture Trustee
following the removal without cause of the Indenture Trustee (the Indenture
Trustee in any such event being referred to herein as the retiring Indenture
Trustee), the Issuer shall be required promptly to appoint a successor
Indenture Trustee. Any successor Indenture Trustee must at all times have a
combined capital and surplus of at least $50,000,000, a long-term debt rating
of "A" or better by or is otherwise acceptable to, each Rating Agency and
satisfy the requirements of Section 310(a) of the TIA. Additionally, prior to
the appointment of any successor Indenture Trustee, the Rating Agency Condition
must be satisfied with respect to such successor Indenture Trustee.
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A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Issuer. Thereupon
the resignation or removal of the retiring Indenture Trustee shall become
effective and the successor Indenture Trustee, without any further act, deed or
conveyance, shall have all the rights, powers and duties of the Indenture
Trustee under this Indenture, subject to satisfaction of the Rating Agency
Condition. The successor Indenture Trustee shall mail a notice of its
succession to Senior Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the successor
Indenture Trustee.
If a successor Indenture Trustee does not take office within 45 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or Senior Noteholders holding not less than a
majority of the Outstanding Amount 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 Senior
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Any resignation or removal of the Indenture Trustee and appointment of
a successor Indenture Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Indenture Trustee pursuant to this Section and payment of all fees and expenses
owed to the outgoing Indenture Trustee. Notwithstanding the replacement of the
Indenture Trustee pursuant to this Section, the retiring Indenture Trustee
shall be entitled to payment or reimbursement of such amounts as such Person is
entitled pursuant to Section 6.07.
Section 6.09. Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to another corporation
or depository institution the resulting, surviving or transferee corporation,
without any further act, shall be the successor Indenture Trustee; provided,
that such corporation or depository institution shall be otherwise qualified
and eligible under Section 6.11. The Indenture Trustee shall provide each
Rating Agency prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created
by this Indenture, the Senior 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
Senior Notes so authenticated, and in case at that time the Senior Notes shall
not have been authenticated, any successor to the Indenture Trustee may
authenticate such Senior Notes either in the name of any predecessor hereunder
or in the name of the successor to the Indenture Trustee, and in all such cases
such certificates shall have the full force that it is anywhere in the Senior
Notes or in this Indenture provided that the certificate of the Indenture
Trustee shall have.
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Section 6.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Indenture
Trustee and the Administrator acting jointly shall have the power and may
execute and deliver all instruments to appoint one or more Persons to act as a
co-trustee or co-trustees, or separate trustee or separate trustees, of all or
any part of the Collateral, and to vest in such Person or Persons, in such
capacity and for the benefit of the Senior Noteholders, such title to the Trust
Estate or any part hereof and, subject to the other provisions of this Section,
such powers, duties, obligations, rights and trusts as the Indenture Trustee
and the Administrator may consider necessary or desirable. If the Administrator
shall not have joined in such appointment within 15 days after it received a
request that it so join, the Indenture Trustee alone shall have the power to
make such appointment. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Senior Noteholders of the appointment of any co-trustee
or separate trustee shall be required under Section 6.08.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such
separate trustee or co-trustee jointly (it being intended that
such separate trustee or co-trustee is not authorized to act
separately without the Indenture Trustee joining in such act),
except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the
Indenture Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Collateral or
any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Indenture Trustee;
(ii) no separate trustee or co-trustee hereunder shall be personally
liable by reason of any act or omission of any other trustee
hereunder; and
(iii) the Indenture Trustee and the Administrator may at any time
accept the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then-separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Indenture and the conditions of this Article. 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 and specifically including
every provision of this Indenture relating to the conduct of, affecting the
liability of or affording protection to the Indenture Trustee. Every such
instrument shall be filed with the Indenture Trustee and a copy thereof given
to the Administrator.
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(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect
of this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, then
all of its estates, properties, rights, remedies and trusts shall vest in and
be exercised by the Indenture Trustee to the extent permitted by law, without
the appointment of a new or successor trustee. Notwithstanding anything to the
contrary in this Indenture, the appointment of any separate trustee or
co-trustee shall not relieve the Indenture Trustee of its obligations and
duties under this Indenture.
Section 6.11. Eligibility; Disqualification. The Indenture Trustee
shall at all times satisfy the requirements of Section 310(a) of the TIA and
shall in addition have a combined capital and surplus of at least $50,000,000
(as set forth in its most recent published annual report of condition) and a
long-term debt rating of "A" or better by, or be otherwise acceptable to, each
Rating Agency. The Indenture Trustee shall satisfy the requirements of Section
310(b) of the TIA. The Transferor, the Administrator, the Administrative Agent
and their respective Affiliates may maintain normal commercial banking
relationships with the Indenture Trustee and its Affiliates, but neither the
Issuer nor any Affiliate of the Issuer may serve as Indenture Trustee.
Section 6.12. Trustee as Holder of 99% 1999-A Vehicle SUBI
Certificate. So long as any Senior Notes are Outstanding, to the extent that
the Owner Trustee or Issuer has rights as a Holder of the 99% 1999-A Vehicle
SUBI Certificate, including rights to distributions and notice, or is entitled
to consent to any actions taken by the Transferor, the Owner Trustee or Issuer
may initiate such action or grant such consent only with consent of the
Indenture Trustee. To the extent that the Indenture Trustee has rights as a
Holder of the 99% 1999-A Vehicle SUBI Certificate or has the right to consent
or withhold consent with respect to actions taken by the Transferor, the Owner
Trustee or Issuer, such rights shall be exercised or consent granted (or
withheld) upon the written direction of holders of a majority of the
Outstanding Amount; provided, however, that subject to Section 3.07, any
direction to the Indenture Trustee to remove or replace the Administrative
Agent or Maintenance Provider upon an Administrative Agent Default or a
Maintenance Provider Default, as the case may be, shall be made by Senior
Noteholders holding not less than 66?% of the Outstanding Amount and with
respect to Section 11.15, such direction shall require the written direction of
Senior Noteholders holding 100% of the Outstanding Amount.
Section 6.13. Representations and Warranties of Indenture Trustee. The
Indenture Trustee hereby makes the following representations and warranties on
which the Issuer and Senior Noteholders shall rely:
(i) the Indenture Trustee is a national banking association duly
organized, validly existing and in good standing under the laws
of the United States; and
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(ii) the Indenture Trustee has full power, authority and legal right
to execute, deliver, and, perform this Indenture and shall have
taken all necessary action to authorize the execution, delivery
and performance by it of this Indenture.
Section 6.14. Furnishing of Documents. The Indenture Trustee shall
furnish to any Senior Noteholder promptly upon receipt of a written request by
such Senior Noteholder (at the expense of the requesting Senior Noteholder)
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates and any other instruments furnished to the Indenture Trustee under
the Basic Documents.
Section 6.15. Preferential Collection of Claims Against the Issuer.
The Indenture Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). Any 1999-A Indenture
Trustee who has resigned or been removed shall be subject to TIA Section 311(a)
to the extent indicated therein.
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ARTICLE SEVEN
SENIOR NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Indenture Trustee Senior Noteholder
Names and Addresses. The Issuer shall furnish or cause to be furnished to the
Indenture Trustee (i) not more than five days after each Record Date a list, in
such form as the Indenture Trustee may reasonably require, of the names and
addresses of the Senior Noteholders as of such Record Date and (ii) at such
other times as the Indenture Trustee may request in writing, within 30 days
after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than ten days prior to the time such list is
furnished; provided, however, that so long as the Indenture Trustee is the
Senior Note Registrar or the Senior Notes are issued as Book-Entry Notes, no
such list shall be required to be furnished to the Indenture Trustee.
Section 7.02. Preservation of Information; Communications to Senior
Noteholders.
(a) The Indenture Trustee shall preserve in as current a form as is
reasonably practicable the names and addresses of the Senior Noteholders
contained in the most recent list furnished to the Indenture Trustee as
provided in Section 7.01 and the names and addresses of Senior Noteholders
received by the Indenture Trustee in its capacity as Senior Note Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in Section
7.01 upon receipt of a new list so furnished.
(b) The Senior Noteholders may communicate pursuant to TIA Section
312(b) with other Senior Noteholders regarding their rights under this
Indenture or under the Senior Notes.
(c) The Issuer, the Indenture Trustee and the Senior Note Registrar
shall have the protection of TIA Section 312(c).
Section 7.03. Reports by Indenture Trustee. If required by TIA ss.
313(a), within 60 days after each [_______] 15, beginning with [_______] 15,
2000, the Indenture Trustee shall mail to each Senior Noteholder as required by
TIA ss. 313(c) a brief report dated as of such date that complies with TIA ss.
313(a). The Indenture Trustee also shall comply with TIA ss. 313(b). A copy of
each such report, at the time of its mailing to the Senior Noteholders, shall
also be filed by the Indenture Trustee with the Commission.
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ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The
Indenture Trustee shall apply all such money received by it as provided in this
Indenture. Except as otherwise expressly provided in this Indenture, if any
default occurs in the making of any payment or performance under any agreement
or instrument that is part of the Trust Estate, the Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate Proceedings. Any such
action shall be without prejudice to any right to claim an Indenture Default
under this Indenture and any right to proceed thereafter as provided in Article
Five.
Section 8.02. Accounts.
(a) Pursuant to Section 5.01 of the Trust Agreement, there has been
established and there shall be maintained an Eligible Account (initially at
U.S. Bank National Association) in the name of the Indenture Trustee until the
Outstanding Amount is reduced to zero, and thereafter, in the name of the Owner
Trustee, which is designated as the "Reserve Fund." The Reserve Fund shall be
held for the benefit of the Securityholders, and shall bear a designation
clearly indicating that the funds on deposit therein are held for the benefit
of the Securityholders. The Reserve Fund shall be under the sole dominion and
control of the Indenture Trustee until the Outstanding Amount has been reduced
to zero, and thereafter under the sole dominion and control of the Owner
Trustee.
(b) The Transferor shall, prior to the Closing Date, establish and
maintain an Eligible Account in the name of the Indenture Trustee on behalf of
the Senior Noteholders, which shall be designated as the "Note Distribution
Account". The Note Distribution Account shall be held in trust for the benefit
of the Senior Noteholders. The Note Distribution Account shall be under the
sole dominion and control of the Indenture Trustee.
(c) All monies deposited from time to time in the Accounts pursuant to
this Indenture or the Administration Supplement shall be held by the Indenture
Trustee as part of the Collateral and shall be applied to the purposes herein
provided. If any Account shall cease to be an Eligible Account, the Indenture
Trustee, until the Outstanding Amount has been reduced to zero, and thereafter
with respect to the Reserve Fund, the Owner Trustee shall, as necessary, assist
the Administrative Agent in causing each Account to be moved to an institution
at which it shall be an Eligible Account.
Section 8.03. Payment Date Certificate.
(a) On the second Business Day preceding each Payment Date prior to
11:00 a.m., New York City time, the Issuer shall cause the Administrative
Agent, to deliver to the Indenture Trustee, the Owner Trustee and each Paying
Agent hereunder or under the Trust Agreement, a certificate (the "Payment Date
Certificate") including, among other things, the following information with
respect to such Payment Date and the related Collection Period and Accrual
Period:
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(i) SUBI Collections for such Collection Period and the amounts
allocable to the 99% interest represented by the 99% 1999-A SUBI
Certificates and the 1% interest represented by the 1% 1999-A
SUBI Certificates;
(ii) Available Funds, including amounts with respect to each of items
(i) through (iv) of the definition thereof;
(iii) the amount of interest accrued during such Accrual Period on
each Class of the Senior Notes;
(iv) the amount of interest accrued during such Accrual Period on the
Subordinated Notes;
(v) the amount of interest accrued during such Accrual Period on the
Certificate Balance (stated separately for the Transferor Trust
Certificate);
(vi) Class A-1 Note Balance, the Class A-2 Note Balance, the Class
A-3 Note Balance, the Class A-4 Note Balance, the Class A-5 Note
Balance, the Outstanding Amount (as defined in the Trust
Agreement) of the Subordinated Notes and the Certificate Balance,
in each case on the day immediately preceding such Payment Date;
(vii) the aggregate amount of SUBI Collections deposited into the Note
Distribution Account and the Certificate Distribution Account,
respectively;
(viii) (A) the amount on deposit in the Reserve Fund and the Reserve
Fund Requirement, each as of the beginning and end of the
related Collection Period and as of the previous Payment Date,
(B) the Reserve Fund Deposit Amount, if any, (C) the Reserve
Fund Draw Amount, if any, (D) the balance on deposit in the
Reserve Fund on such Payment Date after giving effect to
withdrawals therefrom and deposits thereto in respect of such
Payment Date and (E) the change in such balance from the
immediately preceding Payment Date;
(ix) the Senior Note Distribution Amount for each Class of the Senior
Notes, the Certificate Distribution Amount and the amount
allocable to interest for each;
(x) the Quarterly Principal Distributable Amount, the Optimal
Principal Distributable Amount and any Principal Shortfall
Amount for each Class of the Senior Notes, the Subordinated
Notes and the Trust Certificates;
(xi) the Note Factor and Certificate Factor for each Class of the
Senior Notes and the Trust Certificates (other than the
Transferor Trust Certificate), respectively;
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(xii) the aggregate amount of Residual Value Losses and Residual Value
Surplus for such Collection Period, the amount on deposit in the
Residual Value Surplus Account and the Residual Value Surplus
Draw Amount, if any, included in Available Funds (after giving
effect to the distribution of the Retained Certificate
Distribution Amount);
(xiii) the amount of Special Event Purchases made during such
Collection Period and the aggregate Securitization Values as of
the Cutoff Date of all Specified Leases relating to Special
Event Purchases made during the related calendar year or since
the Closing Date;
(xiv) the amount of Sales Proceeds Advances and Financial Component
Advances included in Available Funds;
(xv) any Payment Date Advance Reimbursement for such Accrual Period;
(xvi) amounts released to the Transferor, as Subordinated Noteholder
and as holder of the Transferor Trust Certificate; and
(xvii) the Administration Fee for such Collection Period.
Each amount set forth pursuant to clauses (iii), (iv), (v), (vi), (ix) and (xi)
above shall be expressed in the aggregate and as a dollar amount per $1,000 of
original principal balance of a Senior Note, Subordinated Note or Trust
Certificate, as applicable.
(b) The Indenture Trustee shall have no duty or obligation to verify
or confirm the accuracy of any of the information or numbers set forth in the
Payment Date Certificate delivered to the Indenture Trustee in accordance with
this Section, and the Indenture Trustee shall be fully protected in relying
upon such Payment Date Certificate.
Section 8.04. Disbursement of Funds.
(a) On each Payment Date, prior to 11:00 a.m., New York City time, the
Origination Trustee (acting through the Trust Agent) shall, in accordance with
the related Payment Date Certificate and pursuant to the instructions of the
Administrative Agent, transfer from the 1999-A SUBI Collection Account all
Securityholder Available Funds and apply such amount, in accordance with the
following priorities:
(i) to the Note Distribution Account, for payment to each respective
Class of Senior Noteholders, an amount equal to the interest
accrued at the applicable Interest Rate for such Class of Senior
Notes during the related Accrual Period on the applicable
Outstanding Amount for such Class (and, to the extent permitted
by applicable law, interest on any overdue interest at the
Overdue Interest Rate);
(ii) to the Reserve Fund, an amount equal to the interest accrued at
the Subordinated Note Rate during the related Accrual Period on
the outstanding Subordinated Notes (and, to the extent permitted
by applicable law, interest on any overdue interest at the
Subordinated Note Rate);
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(iii) to the Certificate Distribution Account, an amount equal to the
interest accrued on the Certificate Balance at the Certificate
Rate (and, to the extent permitted by applicable law, interest
on any overdue interest at the Certificate Rate);
(iv) to the related Distribution Account or, in the case of the
Subordinated Notes, to the Reserve Fund, as payments of
principal, the Quarterly Principal Distributable Amount
attributable to each Class of the Senior Notes, the Trust
Certificates and the Subordinated Notes, in the following order
of priority:
(A) on any Payment Date (so long as the maturity of the Senior
Notes has not been accelerated pursuant to Section 5.02), to
each Class of the Senior Notes, the Subordinated Notes and the
Trust Certificates, sequentially:
1) to each Class of the Senior Noteholders sequentially, so
that no principal will be paid on any Class of Senior Notes until
each Class of Senior Notes with a lower numerical designation
shall have been paid in full, i.e., until the principal on the
Class A-1 Senior Notes shall have been paid in full, no principal
will be paid on the Class X-0, X-0, X-0 or A-5 Senior Notes; then
until the principal on the Class A-2 Senior Notes shall have been
paid in full, no principal will be paid on the Class X-0, X-0 xx
X-0 Senior Notes; then until the principal on the Class A-3
Senior Notes shall have been paid in full, no principal will be
paid on the Class A-4 Senior Notes; then until the principal or
the Class A-4 Notes shall have been paid in full, no principal
will be paid on the Class A-5 Senior Notes, until all Classes of
the Senior Notes have been paid in full;
2) to the Subordinated Noteholder until the Subordinated
Notes have been paid in full (which amounts shall be deposited
into the Reserve Fund); and
3) to the Trust Certificateholders pro rata, until the
Trust Certificates have been paid in full; and
(B) on any Payment Date after the maturity of the Senior Notes
has been accelerated pursuant to Section 5.02:
1) first, to the Class A-1 Senior Noteholders, (until the
Class A-1 Senior Notes have been paid in full) and second, to
each other Class of the Senior Noteholders pro rata (based on the
Outstanding Amount of each other Class on such Payment Date),
until all Classes of the Senior Notes have been paid in full;
2) to the Subordinated Noteholder (which amounts shall be
deposited into the Reserve Fund) and to the Certificate
Distribution Account for distribution to the Trust
Certificateholders, for amounts due and unpaid in respect of the
principal amount due and unpaid on the Subordinated Notes and
the Trust Certificates, respectively, ratably, without
preference or priority of any kind, according to the amounts due
and payable to the Subordinated Noteholder and the Trust
Certificateholders; and
(v) to the Reserve Fund, any remaining funds.
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(b) On each Payment Date, after taking into account amounts to be
distributed to Securityholders from the 1999-A SUBI Collection Account, the
Administrative Agent will allocate the Reserve Fund Draw Amount, if any,
reflected in the Payment Date Certificate, with respect to the related
Collection Period and will instruct the Indenture Trustee to make the following
deposits and distributions in the following amounts and order of priority,
prior to 11:00 a.m., New York City time:
(i) to the Note Distribution Account, to pay any remaining interest
due on the outstanding Senior Notes on such Payment Date (and,
to the extent permitted under applicable law, interest on any
overdue interest at the Overdue Interest Rate);
(ii) to the Reserve Fund, an amount equal to any remaining interest
due on the outstanding Subordinated Notes on such Payment Date
(and, to the extent permitted under applicable law, interest on
any overdue interest at the Subordinated Note Rate);
(iii) to the Certificate Distribution Account, an amount equal to any
remaining interest accrued on the Certificates with respect to
such Payment Date (and, to the extent permitted under applicable
law, interest on any overdue interest at the Certificate Rate);
and
(iv) to the related Distribution Account or, in the case of the
Subordinated Notes, to the Reserve Fund (and thereafter, in the
event of any remaining shortfall in amounts required to pay the
Quarterly Principal Distributable Amount with respect to the
Certificates to the Certificate Distribution Account), the
remaining Quarterly Principal Distributable Amount, which will
be allocated to pay principal on the Senior Notes, the
Subordinated Notes and the Certificates in the amounts and order
of priority set forth in Section 8.04(a)(iv).
(c) If on any Payment Date, after giving effect to all deposits to and
withdrawals from the Reserve Fund, the amount on deposit in the Reserve Fund
exceeds the Reserve Fund Requirement, the Indenture Trustee shall distribute
any such excess (i) up to the aggregate amount deposited into the Reserve Fund
in respect of the Subordinated Notes on or prior to the related Payment Date to
the Transferor, in its capacity as the Subordinated Noteholder, and (ii) any
additional excess amounts shall be paid to the Transferor. Upon any such
distributions to the Transferor, the Securityholders will have no further
rights in, or claims to such amounts. Amounts deposited in the Reserve Fund in
accordance with clauses (a)(ii) and (iv) and clauses (b)(ii) and (iv) above
shall be deemed to have been distributed to the Subordinated Noteholder as
payments in respect of interest (and overdue interest) or principal, as
applicable, and the Subordinated Noteholder shall not be entitled to any
further interest on such amounts after the related Payment Date.
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(d) On each Payment Date or Redemption Date, from the amounts on
deposit in the Note Distribution Account, the Indenture Trustee shall duly and
punctually distribute payments of principal and interest on the Senior Notes
due and by check mailed to the Person whose name appears as the registered
holder of a Senior Note (or one or more Predecessor Notes) on the Senior Note
Register as of the close of business on the related Record Date, except that
with respect to Senior Notes registered on the Record Date in the name of the
nominee of DTC (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Senior Note Register as of the
applicable Record Date without requiring that the Senior Note be submitted for
notation of payment. Any reduction in the principal amount of any Senior Note
(or any one or more Predecessor Notes) affected by any payments made on any
Payment Date or Redemption Date shall be binding upon all future holders of any
Senior Note issued upon the registration of transfer thereof or in exchange
hereof or in lieu hereof, whether or not noted thereon. Amounts properly
withheld under the Code by any Person from payment to any Senior Noteholder of
interest or principal shall be considered to have been paid by the Indenture
Trustee to such Senior Noteholder for purposes of this Indenture. If funds are
expected to be available, pursuant to the notice delivered to the Indenture
Trustee, for payment in full of the remaining unpaid principal amount of the
Senior Notes on a Payment Date or Redemption Date, then the Indenture Trustee,
in the name of and on behalf of the Issuer, will notify each Person who was the
registered holder of a Senior Note as of the Record Date preceding the most
recent Payment Date or Redemption Date by notice mailed within thirty days of
such Payment Date or Redemption Date and the amount then due and payable shall
be payable only upon presentation and surrender of the Senior Note at the
Corporate Trust Office of the Indenture Trustee or at the office of the
Indenture Trustee's agent appointed for such purposes located in The City of
New York.
(e) On each Payment Date, the Indenture Trustee shall send by first
class mail an unaudited report (which may be or may be based upon the Payment
Date Certificate prepared by the Administrative Agent) to each Person that was
a Senior Noteholder as of the close of business on the related Record Date
(which shall be Cede as the nominee of DTC unless Definitive Notes are issued
under the limited circumstances described herein), and each Rating Agency
setting forth the following information with respect to such Payment Date or
the related Deposit Date or Collection Period, as the case may be:
(i) SUBI Collections allocable to the 99% 1999-A SUBI Certificates,
and to the 1% 1999-A SUBI Certificates, for such Collection
Period;
(ii) the Senior Note Distribution Amount for each Class of Senior
Notes;
(iii) for each Class of Senior Notes, the amount of the Senior Note
Distribution Amount allocable to interest, the Quarterly
Principal Distributable Amount, the Optimal Principal
Distributable Amount and the Principal Shortfall Amount for such
Class;
(iv) the amount of Available Funds;
(v) the amount of Sales Proceeds Advances and Financial Component
Advances included in Available Funds;
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(vi) the aggregate amount of Residual Value Losses and Residual Value
Surplus for such Collection Period and the Residual Value
Surplus Draw Amount, if any, included in Available Funds (after
giving effect to the distribution of the Retained Certificate
Distribution Amount);
(vii) the Reserve Fund Draw Amount, if any, the balance on deposit in
the Reserve Fund on such Payment Date after giving effect to
withdrawals therefrom and deposits thereto in respect of such
Payment Date, and the change in such balance from the
immediately preceding Payment Date;
(viii) the Outstanding Amount for each Class of Senior Notes (before
giving effect to any distributions in respect of the related
Payment Date);
(ix) the Note Factor for each Class of the Senior Notes;
(x) the amount of Special Event Purchases made during such
Collection Period and the aggregate Securitization Values as of
the Cutoff Date of all Specified Leases relating to Special
Event Purchases made during the related calendar year or since
the Closing Date;
(xi) the Administration Fee for such Collection Period;
(xii) the Payment Date Advance Reimbursement for such Accrual Period;
(xiii) the aggregate amount of SUBI Collections deposited in the Note
Distribution Account; and
(xiv) the Reserve Fund Deposit Amount, if any.
Each amount set forth pursuant to clauses (ii), (iii), (viii) and (xi) above
shall be expressed in the aggregate and as a dollar amount per $1,000 of
original principal balance of a Senior Note, Subordinated Note or Trust
Certificate, as applicable. Senior Note Owners may obtain copies of such
reports upon a request in writing to the Indenture Trustee at the Corporate
Trust Office.
Section 8.05. General Provisions Regarding Accounts.
(a) For so long as no Default or Indenture Default shall have occurred
and be continuing, all of the funds in the Reserve Fund shall be invested and
reinvested by the Indenture Trustee, until the Outstanding Amount has been
reduced to zero and thereafter by the Owner Trustee, at the direction of the
Administrator in Permitted Investments as set forth in Section 4.02(a) of the
Origination Trust Agreement, which mature no later than the Deposit Date
succeeding the date of such investment, including those offered by the
Indenture Trustee or an Affiliate thereof. No such investment shall be sold
prior to maturity. Any investment earnings on the Reserve Fund will be taxable
to the Transferor. On each Payment Date, net investment earnings on the Reserve
Fund shall be deposited in the Reserve Fund.
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(b) Subject to Section 6.01(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in the Reserve Fund resulting
from any loss on any Permitted Investment included therein, except for losses
attributable to the Indenture Trustee's failure to make payments on any such
Permitted 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 Administrator shall have failed to give investment
directions for any funds on deposit in the Reserve Fund to the Indenture
Trustee by 11:00 a.m., New York City time (or such other time as may be agreed
by the Administrator and Indenture Trustee), on any Business Day or (ii) a
Default or Indenture Default shall have occurred and be continuing with respect
to the Senior Notes but the Senior Notes shall not have been declared due and
payable pursuant to Section 5.02 or (iii) if the Senior Notes shall have been
declared due and payable following an Indenture Default, amounts collected or
receivable from the Trust Estate are being applied in accordance with Section
5.05 as if there had not been such a declaration, then the Indenture Trustee
shall, to the fullest extent practicable, invest and reinvest funds in
investments that are Permitted Investments as set forth in paragraph (vi) of
the definition thereof.
Section 8.06. Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to
Section 6.07, 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 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 Senior
Notes Outstanding and all sums due the Indenture Trustee pursuant to Section
6.07 have been paid, release any remaining portion of the Trust Estate that
secured the Senior 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. Such release shall include delivery to the Issuer or its
designee of the 1999-A SUBI Certificates and the Subordinated Notes and
delivery to the Securities Intermediary under the Control Agreement of a
certificate evidencing the release of the lien of this Indenture and transfer
of dominion and control over the Reserve Fund to the Owner Trustee. The
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section only upon receipt of an Issuer Request.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Senior
Noteholders.
(a) Without the consent of the Senior Noteholders, but with prior
notice to each Rating Agency and subject to the satisfaction of the Rating
Agency Condition, the Issuer and the Indenture Trustee, when so requested by an
Issuer Request, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Indenture Trustee,
for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure,
convey or confirm unto the Indenture Trustee any property
subject or required to be subjected to the lien of this
Indenture, or to subject additional property to the lien of this
Indenture;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another Person to the Issuer and the
assumption by any such successor of the covenants of the Issuer
contained herein and in the Senior Notes;
(iii) to add to the covenants of the Issuer for the benefit of the
Senior Noteholders or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to cure any ambiguity, correct or supplement any provision
herein or in any supplemental indenture that may be defective or
inconsistent with any other provision herein or in any
supplemental indenture or make any other provisions with respect
to matters or questions arising under this Indenture or in any
supplemental indenture that shall not be inconsistent with the
provisions of this Indenture; provided that such other
provisions shall not adversely affect the interests of the
Senior Noteholders; or
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Senior
Notes or 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 Six.
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 as may be therein contained.
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(b) The Issuer and the Indenture Trustee, when requested by an Issuer
Request, may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or for the purpose of modifying in any
manner (other than the modifications set forth in Section 9.02, which require
consent of the Holder of each Senior Note affected thereby) the rights of the
Senior Noteholders under this Indenture; provided, however, that (i) such
action shall not materially adversely affect the interests of any Senior
Noteholder, (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, (A) affect the treatment of the Senior Notes as debt for
federal income tax purposes, (B) be deemed to cause a taxable exchange of the
Senior Notes for federal income tax purposes or (C) cause the Issuer, the
Transferor or the Origination Trust to be taxable as an association (or a
publicly traded partnership) taxable as a corporation for federal income tax
purposes.
Section 9.02. Supplemental Indentures With Consent of Senior
Noteholders. The Issuer and the Indenture Trustee, when requested by an Issuer
Request, also may, with the consent of Senior Noteholders holding not less than
a majority of the Outstanding Amount, by Act of such Senior Noteholders
delivered to the Issuer and the Indenture Trustee, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to, or
changing in any manner or eliminating any of the provisions of, this Indenture
or of modifying in any manner the rights of the Senior Noteholders under this
Indenture subject to the satisfaction of the Rating Agency Condition and
provided that no such supplemental indenture shall, without the consent of the
Senior Noteholder of each Outstanding Senior Note affected thereby:
(a) change the Senior Note Final Payment Date of or the date of
payment of any installment of principal of or interest on any Senior Note, or
reduce the principal amount thereof, the interest rate thereon or the
Redemption Price with respect thereto, change the provision of this Indenture
relating to the application of collections on, or the proceeds of the sale of,
the Trust Estate to payment of principal of or interest on the Senior Notes, or
change any place of payment where, or the coin or currency in which, any Senior
Note or the interest thereon is payable, or impair the right to institute suit
for the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article Five, to the
payment of any such amount due on the Senior Notes on or after the respective
due dates thereof (or, in the case of redemption, on or after the Redemption
Date);
(b) reduce the percentage of the Outstanding Amount, the consent of
the Senior Noteholders of which is required for any such supplemental indenture
or the consent of the Senior Noteholders of which is required for any waiver of
compliance with provisions of this Indenture or Indenture Defaults hereunder
and their consequences provided for in this Indenture;
(c) modify or alter the provisions of the proviso to the definition of
the term "Outstanding";
(d) reduce the percentage of the Outstanding Amount required to direct
the Indenture Trustee to direct the Owner Trustee to sell the Trust Estate
pursuant to Section 5.04, if the proceeds of such sale would be insufficient to
pay the Outstanding Amount plus accrued but unpaid interest on the Senior
Notes;
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(e) modify any provision of this Section, except to increase any
percentage specified herein or to provide that certain additional provisions of
this Indenture or the other Basic Documents cannot be modified or waived
without the consent of the Senior Noteholder of each Outstanding Senior Note
affected thereby;
(f) 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 property at any time subject hereto or deprive any Senior
Noteholder of the security provided by the lien of this Indenture; or
(g) impair the right to institute suit for the enforcement of payment
as provided in Section 5.07.
Any such supplemental indenture shall be executed only upon delivery
of an Opinion of Counsel to the same effect as in Section 9.01(b). The
Indenture Trustee may in its discretion determine whether or not any Senior
Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon all Senior Noteholders, 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 Senior Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee
of any supplemental indenture pursuant to this Section, the Indenture Trustee
shall mail to the Senior 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.
Section 9.03. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Indenture Trustee shall be entitled to receive, and subject
to Sections 6.01 and 6.02, shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may but shall
not be obligated to enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or indemnities under this
Indenture or otherwise.
Section 9.04. Effect of Supplemental 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 Senior Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer, the Owner Trustee and the
Senior 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 shall
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
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Section 9.05. Reference in Senior Notes to Supplemental Indentures.
Senior Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and if required by the
Indenture Trustee shall, bear a notation in form approved by the Indenture
Trustee as to any matter provided for in such supplemental indenture. If the
Issuer or the Indenture Trustee shall so determine, new Senior 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 Senior Notes.
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ARTICLE TEN
REDEMPTION OF SENIOR NOTES
Section 10.01. Redemption.
(a) Pursuant to Section 9.01 of the Trust Agreement, the Transferor
shall be permitted at its option to purchase the interest in the 1999-A SUBIs
evidenced by the 99% 1999-A Vehicle SUBI Certificate from the Issuer on any
Payment Date if, either before or after giving effect to any payment of
principal required to be made on such Payment Date, the Senior Note Balance is
less than or equal to 10% of the Initial Securities Balance. The purchase price
for the 99% 1999-A Vehicle SUBI Certificate shall equal the unpaid principal
balances of the Securities, together with accrued interest thereon to the
Redemption Date (the "Optional Purchase Price"), which amount shall be
deposited by the Transferor into the 1999-A SUBI Collection Account on the
Deposit Date relating to the Redemption Date. In connection with an Optional
Purchase, the Senior Notes shall be redeemed on the Redemption Date in whole,
but not in part, for the Redemption Price and thereupon the pledge of the 99%
1999-A Lease SUBI shall be discharged and released and the 99% 1999-A Lease
SUBI Certificate shall be returned to the Issuer.
(b) If the Transferor exercises the Optional Purchase, on the
Redemption Date, prior to 11:00 a.m., New York City time, the Origination
Trustee (acting through the Trust Agent) shall transfer the Optional Purchase
Price as part of the Available Funds from the 1999-A SUBI Collection Account as
follows: (i) to the Note Distribution Account, the Redemption Price, (ii) to
the Reserve Fund, the Subordinated Note Redemption Price and (iii) to the
Certificate Distribution Account, the Repayment Price.
(c) If the Senior Notes are to be redeemed pursuant to this Section,
the Administrator or the Issuer shall provide at least 45 days' prior notice of
the redemption of the Senior Notes to the Indenture Trustee and the Owner
Trustee, and the Indenture Trustee shall provide at least 30 days' notice
thereof to the Senior Noteholders.
Section 10.02. Form of Redemption Notice. Notice of redemption under
Section 10.01 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, mailed to each holder of Senior Notes as of the close of
business on the Record Date preceding the applicable Redemption Date at such
holder's address appearing in the Senior Note Register. In addition, the
Administrator shall notify each Rating Agency upon the redemption of the Senior
Notes, pursuant to the Issuer Administration Agreement.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the place where the Senior Notes to be redeemed 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 3.02); and
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(d) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Senior Note and that interest thereon shall cease to
accrue from and after the Redemption Date.
Notice of redemption of the Senior Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer. Failure to give
notice of redemption (or any defect therein) to any Senior Noteholder shall not
impair or affect the validity of the redemption of any other Senior Note.
Section 10.03. Senior Notes Payable on Redemption Date. The Senior
Notes to be redeemed shall, following notice of redemption as required by
Section 10.02, 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 ELEVEN
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions.
(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 and each Rating Agency (i) an Officer's
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or opinion
has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) In addition to any obligation imposed in Section 11.01(a) or
elsewhere in this Indenture:
(i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the
basis for the release of any property or securities subject to
the lien of this Indenture, the Issuer shall furnish to the
Indenture Trustee an Officer's Certificate certifying or stating
the opinion of each Person signing such certificate as to the
fair value (within 90 days of such deposit) to the Issuer of the
Collateral or other property or securities to be so deposited.
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(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in
clause (i) above, the Issuer shall also deliver to the Indenture
Trustee an Independent Certificate as to the same matters, if
the fair value of the property or securities to be so deposited
and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then-current
calendar year of the Issuer, as set forth in the certificates
delivered pursuant to clause (i) above and this clause, is 10%
or more of the Outstanding Amount, but such a certificate need
not be furnished with respect to any securities so deposited, if
the fair value thereof to the Issuer as set forth in the related
Officer's Certificate is less than $25,000 or less than 1% of
the Outstanding Amount.
(iii) Other than with respect to any release described in clause (A)
or (B) of Section 11.01(b)(v), 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
Officer's Certificate certifying or stating the opinion of each
Person signing such certificate as to the fair value (within 90
days of such release) of the property or securities proposed to
be released and stating that in the opinion of such Person, the
proposed release will not impair the security under this
Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in
clause (iii) above, the Issuer shall also furnish to the
Indenture Trustee an Independent Certificate as to the same
matters, if the fair value of the property or securities and of
all other property, or securities (other than property described
in clauses (A) or (B) of Section 11.01(b)(v)) released from the
lien of this Indenture since the commencement of the then
current calendar year, as set forth in the Officer's
Certificates required by clause (iii) above and this clause,
equals 10% or more of the Outstanding Amount, but such Officer's
Certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in
the related Officer's Certificate is less than $25,000 or less
than 1% of the Outstanding Amount.
(v) Notwithstanding Section 2.08 or any other provision of this
Section, the Issuer may (A) collect, liquidate, sell or
otherwise dispose of the Collateral as and to the extent
permitted or required by the Basic Documents and (B) make cash
payments out of the Accounts as and to the extent permitted or
required by the Basic Documents.
Section 11.02. Form of Documents Delivered to Indenture Trustee. In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
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Any certificate or opinion of an Authorized Officer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of or representations by an officer or officers of the Administrator,
the Transferor or the Issuer, stating that the information with respect to such
factual matters is in the possession of the Administrator, the Transferor or
the Issuer, unless such 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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any terms 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 Six.
Section 11.03. Acts of Senior Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Senior Noteholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Senior 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 Senior Noteholders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the Indenture Trustee and the Issuer, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Senior Notes shall be proved by the Senior Note
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the holder of any Senior Note shall bind the holder
of every Senior 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 Senior Note.
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Section 11.04. Notices. All demands, notices and communications
hereunder shall be in writing and shall be delivered or mailed by registered or
certified first-class United States mail, postage prepaid, hand delivery,
prepaid courier service, or by telecopier, and addressed in each case as
follows: (i) if to the Issuer c/o the Owner Trustee, at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 (telecopier no. (000) 000-0000), Attention:
Corporate Trust Department with a copy to the Administrator, at 0000 X.X. 00xx
Xxxxxx, Xxxxx, Xxxxxxx 00000 (telecopier no. (000) 000-0000), Attention:
Treasurer; (ii) if to the Indenture Trustee, at One Illinois Center, 000 Xxxx
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (telecopier no. (312)
228-9401), Attention: Ryder Truck Leasing; (iii) if to Moody's, to 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS Monitoring Group; (iv) if to
DCR, to Duff & Xxxxxx Credit Rating Co., 00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000 (telecopier no. (000) 000-0000), Attention: Asset
Backed Monitoring Group (Equipment Leases); or (v) at such other address as
shall be designated by any of the foregoing in a written notice to the other
parties hereto. Delivery shall occur only upon receipt or reported tender of
such communication by an officer of the recipient entitled to receive such
notices located at the address of such recipient for notices hereunder.
Section 11.05. Notices to Senior Noteholders; Waiver. Where this
Indenture provides for notice to Senior 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 Senior Noteholder
affected by such event, at his address as it appears on the Senior Note
Register, not later than the latest and not earlier than the earliest date
prescribed for the giving of such notice. In any case where notice to Senior
Noteholders is given by mail, neither the failure to mail such notice nor any
defect in any notice so mailed to any particular Senior Noteholder shall affect
the sufficiency of such notice with respect to other Senior Noteholders, and
any notice that is mailed in the manner herein provided shall conclusively be
presumed to have been duly given.
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 Senior Noteholders shall be filed with the
Indenture Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of Senior Noteholders when such notice is required
to be given pursuant to any provision of this Indenture, then any manner of
giving such notice as shall be satisfactory to the Indenture Trustee shall be
deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to each Rating Agency,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute an Indenture
Default.
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Section 11.06. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 11.07. Successors and Assigns. All covenants and agreements in
this Indenture and the Senior Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee
in this Indenture shall bind its successors.
Section 11.08. Severability. In case any provision in this Indenture
or in the Senior Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 11.09. Benefits of Indenture. Nothing in this Indenture or in
the Senior Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, the Senior Noteholders (and,
with respect to Sections 8.03 and 8.04, the Trust Certificateholders), 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 11.10. Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Senior Notes or this Indenture) payment need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date on which nominally due, and no interest
shall accrue for the period from and after any such nominal date.
Section 11.11. Governing Law. This Indenture shall be construed in
accordance with the laws of the State of New York, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 11.12. Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 11.13. Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer accompanied by an Opinion of Counsel (who 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 Senior 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 11.14. 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 Senior Notes or under this Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) any Trust Certificateholder, (iii) any owner of a beneficial
interest in the Issuer or (iv) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee or the Owner Trustee in
its individual capacity, any Trust Certificateholder, the Owner Trustee or the
Indenture Trustee of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacity) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity. For all purposes of this Indenture, in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles Six, Seven
and Ten of the Trust Agreement.
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Section 11.15. No Petition. The Indenture Trustee, by entering into
this Indenture, and each Senior Noteholder or Note Owner, by accepting a Senior
Note or in the case of a Note Owner, a beneficial interest in a Senior Note,
hereby covenants and agree that they will not institute, or join in
instituting, any bankruptcy, reorganization, arrangement, insolvency or
liquidation Proceeding, or other Proceeding under federal or State bankruptcy
or similar laws for a period of one year and a day after:
(a) payment in full of all amounts due to each Holder in respect of
the UTI, the 1999-A SUBIs or any Other SUBIs, against any UTI Beneficiary (or
any general partner of any UTI Beneficiary which is a partnership), the
Origination Trust and the Origination Trustee, without the consent of 100% of
the Holders of the 1999-A SUBIs and any Others (excluding the UTI
Beneficiaries, the Transferor or any of their respective Affiliates); and
(b) payment in full of the Offered Securities, against the Transferor
or the Issuer; provided, however, that 100% of the Senior Noteholders, or, if
no Senior Notes are then outstanding, the Subordinated Noteholder and if no
Subordinated Notes are then outstanding, 100% of the Trust Certificateholders
(in each case excluding the Transferor and any of its Affiliates) may at any
time institute or join in instituting any bankruptcy, reorganization,
insolvency or liquidation proceeding against the Transferor or the Issuer.
Section 11.16. No Recourse. Each Senior Noteholder or Senior Note
Owner, by acceptance of a Senior Note or, in the case of a Senior Note Owner, a
beneficial interest in a Senior 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 the Senior Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity or 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 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.
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Section 11.17. Inspection. The Issuer agrees that on reasonable prior
notice it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all
such information, except to the extent disclosure may be required by law (and
all reasonable applications for confidential treatment are unavailing) and
except to the extent the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
Section 11.18. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by Chase Manhattan Bank Delaware not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall Chase Manhattan Bank Delaware in its individual capacity or any
beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder,
as to all of which recourse shall be had solely to the assets of the Issuer.
For all purposes of this Indenture, in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles Six, Seven
and Ten of the Trust Agreement. Notwithstanding anything herein to the
contrary, Section 2.07 of the Trust Agreement shall remain in full force and
effect.
Section 11.19. TIA Incorporation and Conflicts. The provisions of TIA
Sections 310 through 317 that impose duties on any Person (including the
provisions automatically deemed included herein unless expressly excluded by
this Indenture) are a part of and govern this Indenture, whether or not
physically contained herein. If any provision hereof limits, qualifies or
conflicts with another provision hereof that is required to be included in this
Indenture by any of the provisions of the TIA, such required provision shall
control.
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized, all as of the day and year first above written.
RYDER VEHICLE LEASE TRUST 1999-A
By: CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
By: ____________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By: ____________________________________
Name:
Title:
Receipt of this original counterpart of this Agreement is hereby
acknowledged on this _____ day of ________________1999.
RTRT, INC.,
as Origination Trustee
By: ____________________________________
Name:
Title:
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STATE OF _______________)
)ss
COUNTY OF _____________ )
On __________ before me, ____________________________________________,
[insert date] [Here insert name and title of notary]
personally appeared _________________________________________________,
[ ] personally known to me, or
[ ] proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within
instrument,
and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ties), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which such
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[Seal] Signature _____________________
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STATE OF _______________)
)ss
COUNTY OF _____________ )
On __________ before me, ____________________________________________,
[insert date] [Here insert name and title of notary]
personally appeared _________________________________________________,
[ ] personally known to me, or
[ ] proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within
instrument,
and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ties), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which such
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[Seal] Signature _____________________
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STATE OF _______________)
)ss
COUNTY OF _____________ )
On __________ before me, ____________________________________________,
[insert date] [Here insert name and title of notary]
personally appeared __________________________________________________,
[ ] personally known to me, or
[ ] proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within
instrument,
and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ties), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which such
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
[Seal] Signature _____________________
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EXHIBIT A
FORM OF SENIOR NOTE
SEE REVERSE FOR CERTAIN DEFINITIONS
UNLESS THIS SENIOR 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 SENIOR NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
TRANSFERS OF THE NOTES MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX
TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE
INDENTURE.
THE HOLDER, BY ACCEPTANCE OF THIS NOTE, SHALL BE DEEMED TO HAVE AGREED TO TREAT
THE NOTES AS DEBT SOLELY OF THE ISSUER FOR UNITED STATES FEDERAL AND STATE
INCOME TAX PURPOSES.
RYDER VEHICLE LEASE TRUST 1999-A
[______] % ASSET BACKED SENIOR NOTE, CLASS [A-1] [A-2] [A-3] [A-4] [A-5]
REGISTERED $[_________]
No. R-[___] CUSIP NO. [_________]
Ryder Vehicle Lease Trust 1999-A, a business trust organized and
existing under the laws of the State of Delaware (including any permitted
successors and assigns, the "Issuer"), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, the principal sum of
[______________________________] Dollars ($[__________]) in quarterly
installments on January 15, April 15, July 15 and October 15 of each year, or
if such day is not a Business Day, on the immediately succeeding Business Day,
commencing on January 17, 2000 (each, a "Payment Date") until the principal of
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this Senior Note is paid or made available for payment, and to pay interest on
each Payment Date on the Class [A-1] [A-2] [A-3] [A-4] [A-5] Note Balance as of
the preceding Payment Date (after giving effect to all payments of principal
made on the preceding Payment Date), or as of the Closing Date in the case of
the first Payment Date or if no interest has yet been paid, at the rate per
annum shown above (the "Interest Rate"), in each case as and to the extent
described below; provided, however, that the entire Class [A-1] [A-2] [A-3 ]
[A-4] [A-5] Note Balance shall be due and payable on the earlier of
[___________] 15, 200[__] (the "Senior Note Final Payment Date") and the
Redemption Date, if any, pursuant to Section 10.01 of the Indenture. The Issuer
shall pay interest on overdue installments of interest at the Interest Rate to
the extent lawful. Such principal of and interest on this Senior Note shall be
paid in the manner specified on the reverse hereof.
The principal of and interest on this Senior Note are payable in such
coin or currency of the United States as at the time of payment is legal tender
for payment of public and private debts. All payments made by the Issuer with
respect to this Senior Note shall be applied first to interest due and payable
on this Senior Note as provided above and then to the unpaid principal of this
Senior Note.
Reference is made to the further provisions of this Senior Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Senior Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee the name of which appears below by manual signature, this
Senior 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.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed, manually or by facsimile, by its Authorized Officer as of the date set
forth below.
Dated: _______________, 1999 RYDER VEHICLE LEASE TRUST 1999-A,
By: CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
By: _______________________________
Name: _____________________________
Title: ____________________________
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes designated above and referred to in
the within-mentioned Indenture.
Dated: _______________, 1999 U.S. BANK NATIONAL ASSOCIATION.
as Indenture Trustee
By: CHASE MANHATTAN BANK DELAWARE,
By: ______________________________
Name: ____________________________
Title: ___________________________
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[REVERSE OF SENIOR NOTE]
This Senior Note is one of a duly authorized issue of Senior Notes of
the Issuer, designated as its " [_______]% Asset Backed Senior Notes, Class
[A-1] [A-2] [A-3] [A-4] [A-5] " (herein called the "Senior Notes") issued under
an Indenture, dated as of [_______], 1999 (such indenture, as supplemented or
amended, is herein called the "Indenture"), between the Issuer and U.S. Bank
National Association, as trustee (the "Indenture Trustee", which term includes
any successor Indenture Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Senior Noteholders. The Senior Notes are subject to all terms of
the Indenture. All terms used in this Senior Note that are defined in the
Indenture, as supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes and the Class A-4 Notes are and will be equally and ratably
secured by the Collateral pledged as security therefor as provided in the
Indenture. However, to the extent provided in the Indenture, each Class will
receive principal payment sequentially so no principal payments shall be made in
respect of the Class A-2 Notes until the Class A-1 Notes have been paid in full,
no principal payments shall be made in respect of the Class A-3 Notes until the
Class A-2 Notes have been paid in full, and no principal payments shall be made
in respect of the Class A-4 Notes until the Class A-3 Notes have been paid in
full.
Principal payable on the Senior Notes will be paid on each Payment Date
in the amount specified in the Indenture. As described above, the entire unpaid
principal amount of this Senior Note will be payable on the earlier of the
Senior Note Final Payment Date and the Redemption Date, if any, selected
pursuant to the Indenture. Notwithstanding the foregoing, under certain
circumstances, the entire unpaid principal amount of the Senior Notes shall be
due and payable following the occurrence and continuance of an Indenture
Default, as described in the Indenture, principal payments on the Class A-1
Senior Notes shall be made first and principal payments on the remaining classes
of Senior Notes shall be made pro rata, to the Senior Noteholders entitled
thereto.
Payments of principal and interest on this Senior Note due and payable
on each Payment Date or Redemption Date shall be made by check mailed to the
Person whose name appears as the registered holder of this Senior Note (or one
or more Predecessor Notes) on the Senior Note Register as of the close of
business on the related Record Date, except that with respect to Senior Notes
registered on the Record Date in the name of the nominee of The Depository
Trust Company (initially, such nominee to be Cede & Co.), payments will be made
by wire transfer in immediately available funds to the account designated by
such nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Senior Note Register as of the
applicable Record Date without requiring that this Senior Note be submitted for
notation of payment. Any reduction in the principal amount of this Senior Note
(or any one or more Predecessor Notes) affected by any payments made on any
Payment Date or Redemption Date shall be binding upon all future holders of
this Senior Note and of any Senior 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,
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for payment in full of the remaining unpaid principal amount of this Senior
Note on a Payment Date or Redemption Date, then the Indenture Trustee, in the
name of and on behalf of the Issuer, will notify the Person who was the
registered holder hereof as of the Record Date preceding such Payment Date or
Redemption Date by notice mailed within five days of such Payment Date or
Redemption Date and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Corporate Trust Office of the
Indenture Trustee or at the office of the Indenture Trustee's agent appointed
for such purposes located in The City of New York.
As provided in the Indenture, the Transferor will be permitted at its
option to purchase the interest in the 1999-A SUBI evidenced by the 99% 1999-A
Vehicle SUBI Certificate from the Issuer on any Payment Date if, either before
or after giving effect to any payment of principal required to be made on such
Payment Date, the Senior Note Balance is less than or equal to 10% of the
Initial Securities Balance. The purchase price for the 99% 1999-A Vehicle SUBI
Certificate shall equal the unpaid principal balances of the Securities,
together with accrued interest thereon to the Redemption Date and certain other
amounts (the "Optional Purchase Price"), which amount shall be deposited by the
Transferor into the 1999-A SUBI Collection Account on the Deposit Date relating
to the Payment Date fixed for redemption. In connection with an Optional
Purchase, the Senior Notes will be redeemed on such Payment Date in whole, but
not in part, for the Redemption Price and thereupon the pledge of the 99%
1999-A Lease SUBI shall be discharged and released and the 99% 1999-A Lease
SUBI Certificate shall be returned to the Transferor.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Senior Note may be registered on the Senior
Note Register upon surrender of this Senior Note for registration of transfer
at the office or agency designated by the Issuer pursuant to the Indenture. No
service charge will be charged for any registration of transfer or exchange of
this Senior 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 Senior Noteholder or Senior Note Owner, by acceptance of a Senior
Note or, in the case of a Senior Note Owner, a beneficial interest in a Senior
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 the Senior Notes or under the Indenture or any
certificate or other writing delivered in connection therewith against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any
owner of a beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Indenture Trustee or
the Owner Trustee 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 in its
individual capacity, except as any such Person may have expressly agreed 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.
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The Senior Notes represent obligations of the Issuer only and do not
represent interests in, recourse to or obligations of the Transferor, the UTI
Beneficiaries or any of their respective Affiliates.
Each Senior Noteholder, or in the case of a Senior Note Owner, by
acceptance of a Senior Note, in the case of a Senior Note Owner, a beneficial
interest in the Senior Note, hereby covenants and agree that they will not
institute, or join in instituting, any bankruptcy, reorganization, arrangement,
insolvency or liquidation Proceeding, or other Proceeding under federal or
State bankruptcy or similar laws for a period of one year and a day after:
(a) payment in full of all amounts due to each Holder in respect
of the UTI, the 1999-A SUBIs or any Other SUBIs, against any UTI
Beneficiary (or any general partner of any UTI Beneficiary which is a
partnership), the Origination Trust and the Origination Trustee,
without the consent of 100% of the Holders of the 1999-A SUBIs and any
Other SUBIs (excluding the UTI Beneficiaries, the Transferor or any of
their respective Affiliates); and
(b) payment in full of the Offered Securities, against the
Transferor or the Issuer; provided, however, that 100% of the Senior
Noteholders, or, if no Senior Notes are then outstanding, the
Subordinated Noteholder or, if no Subordinated Notes are outstanding,
100% of the Trust Certificateholders (in each case excluding the
Transferor and any of its Affiliates) may at any time institute or
join in instituting any bankruptcy, reorganization, insolvency or
liquidation proceeding against the Transferor or the Issuer.
Prior to the due presentment for registration of transfer of this
Senior Note, the Owner Trustee, the Indenture Trustee and any agent of the
Owner Trustee or the Indenture Trustee may treat the Person in whose name this
Senior 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 Senior Note be overdue, and neither the Owner Trustee, the
Indenture Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Senior Noteholders under the Indenture at any time
by the Issuer with the consent of Senior Noteholders representing not less than
a majority of the Outstanding Amount. The Indenture also contains provisions
permitting Senior Noteholders representing specified percentages of the
Outstanding Amount, on behalf of all Senior Noteholders, to waive compliance by
the Issuer with certain provisions of the Indenture and certain past Defaults
under the Indenture and their consequences. Any such consent or waiver by the
Senior Noteholder of this Senior Note (or any one of more Predecessor Notes)
shall be conclusive and binding upon such Senior Noteholder and upon all future
Senior Noteholders of this Senior Note and of any Senior Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Senior Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of the Senior
Noteholders.
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The Senior Notes are issuable only in registered form in denominations
as provided in the Indenture, subject to certain limitations therein set forth.
This Senior Note and the Indenture shall be construed in accordance
with the laws of the State of New York, 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 Senior
Note or 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
Senior Note at the times, place and rate and in the coin or currency herein
prescribed.
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
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(name and address of assignee)
the within Senior Note and all rights thereunder, and hereby
irrevocably constitutes and appoints attorney, to transfer said Senior Note on
the books kept for registration thereof, with full power of substitution in the
premises.
Dated:(1)
Signature Guaranteed:
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(1) The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Senior Note in
every particular, without alteration, enlargement or any change whatsoever.
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EXHIBIT B
FORM OF DEPOSITORY AGREEMENT
1
