Exhibit 4.1
GREYHOUND FUNDING LLC,
as Issuer
and
THE CHASE MANHATTAN BANK,
as Indenture Trustee
______________________________
BASE INDENTURE
Dated as of June 30, 1999
______________________________
Asset Backed Notes
(Each Issuable in Series)
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Cross-References . . . . . . . . . . . . . . . . 1
Section 1.3. Accounting and Financial Determinations; No
Duplication . . . . . . . . . . . . . . . . . . . 1
Section 1.4. Rules of Construction . . . . . . . . . . . . . . 2
ARTICLE 2. THE INVESTOR NOTES . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.1. Designation and Terms of Investor Notes . . . . . 2
Section 2.2. Investor Notes Issuable in Series . . . . . . . . 3
Section 2.3. Execution and Authentication . . . . . . . . . . 5
Section 2.4. Registration of Transfer and Exchange of Notes . 6
Section 2.5. Mutilated, Destroyed, Lost or Stolen Notes . . . 9
Section 2.6. Appointment of Paying Agent . . . . . . . . . . . 9
Section 2.7. Persons Deemed Owners . . . . . . . . . . . . . . 11
Section 2.8. Investor Noteholder List . . . . . . . . . . . . 11
Section 2.9. Treasury Notes . . . . . . . . . . . . . . . . . 12
Section 2.10. Book-Entry Notes . . . . . . . . . . . . . . . . 12
Section 2.11. Definitive Notes . . . . . . . . . . . . . . . . 13
Section 2.12. Global Note . . . . . . . . . . . . . . . . . . . 14
Section 2.13. Principal and Interest . . . . . . . . . . . . . 14
Section 2.14. Tax Treatment . . . . . . . . . . . . . . . . . . 15
ARTICLE 3. SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.1. Grant of Security Interest . . . . . . . . . . . 15
Section 3.2. Transaction Documents . . . . . . . . . . . . . . 17
Section 3.3. Release of Issuer Assets . . . . . . . . . . . . 18
Section 3.4. Opinions of Counsel . . . . . . . . . . . . . . . 18
Section 3.5. Stamp, Other Similar Taxes and Filing Fees . . . 18
ARTICLE 4. REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.1. Servicer Reports . . . . . . . . . . . . . . . . 19
Section 4.2. Communication to Investor Noteholders . . . . . . 20
Section 4.3. Rule 144A Information . . . . . . . . . . . . . . 20
Section 4.4. Reports by the Issuer . . . . . . . . . . . . . . 20
Section 4.5. Reports by the Indenture Trustee . . . . . . . . 21
ARTICLE 5. ALLOCATION AND APPLICATION OF COLLECTIONS . . . . . . . . . . . 21
Section 5.1. Collection Account . . . . . . . . . . . . . . . 21
Section 5.2. Gain on Sale Account . . . . . . . . . . . . . . 22
Section 5.3. Collection of Money . . . . . . . . . . . . . . . 23
Section 5.4. Collections and Allocations . . . . . . . . . . . 24
-i-
ARTICLE 6. DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.1. Distributions in General . . . . . . . . . . . . 25
Section 6.2. Optional Repurchase of Investor Notes . . . . . . 25
ARTICLE 7. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 26
Section 7.1. Existence and Power . . . . . . . . . . . . . . . 26
Section 7.2. Governmental Authorization . . . . . . . . . . . 26
Section 7.3. Binding Effect . . . . . . . . . . . . . . . . . 26
Section 7.4. Financial Information; Financial Condition . . . 27
Section 7.5. Litigation . . . . . . . . . . . . . . . . . . . 27
Section 7.6. No ERISA Plan . . . . . . . . . . . . . . . . . . 27
Section 7.7. Tax Filings and Expenses . . . . . . . . . . . . 27
Section 7.8. Disclosure . . . . . . . . . . . . . . . . . . . 27
Section 7.9. Investment Company Act . . . . . . . . . . . . . 28
Section 7.10. Regulations T, U and X . . . . . . . . . . . . . 28
Section 7.11. No Consent . . . . . . . . . . . . . . . . . . . 28
Section 7.12. Solvency . . . . . . . . . . . . . . . . . . . . 28
Section 7.13. Security Interests . . . . . . . . . . . . . . . 28
Section 7.14. Binding Effect of Certain Agreements . . . . . . 29
Section 7.15. Non-Existence of Other Agreements . . . . . . . . 29
Section 7.16. Compliance with Contractual Obligations and Laws 30
Section 7.17. Other Representations . . . . . . . . . . . . . . 30
ARTICLE 8. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 8.1. Payment of Investor Notes . . . . . . . . . . . . 30
Section 8.2. Maintenance of Office or Agency . . . . . . . . . 30
Section 8.3. Payment of Obligations . . . . . . . . . . . . . 31
Section 8.4. Conduct of Business and Maintenance of Existence 31
Section 8.5. Compliance with Laws . . . . . . . . . . . . . . 31
Section 8.6. Inspection of Property, Books and Records . . . . 31
Section 8.7. Compliance with Transaction Documents;
Issuer Assets . . . . . . . . . . . . . . . . . 31
Section 8.8. Notice of Defaults . . . . . . . . . . . . . . . 32
Section 8.9. Notice of Material Proceedings . . . . . . . . . 33
Section 8.10. Further Requests . . . . . . . . . . . . . . . . 33
Section 8.11. Protection of Issuer Assets . . . . . . . . . . . 33
Section 8.12. Annual Opinion of Counsel . . . . . . . . . . . . 33
Section 8.13. Liens . . . . . . . . . . . . . . . . . . . . . . 34
Section 8.14. Other Indebtedness . . . . . . . . . . . . . . . 34
Section 8.15. Mergers . . . . . . . . . . . . . . . . . . . . . 34
Section 8.16. Sales of Issuer Assets . . . . . . . . . . . . . 34
Section 8.17. Acquisition of Assets . . . . . . . . . . . . . . 34
Section 8.18. Distributions. . . . . . . . . . . . . . . . . . 34
Section 8.19. Name; Principal Office . . . . . . . . . . . . . 35
Section 8.20. Organizational Documents . . . . . . . . . . . . 35
Section 8.21. Investments . . . . . . . . . . . . . . . . . . . 35
Section 8.22. No Other Agreements . . . . . . . . . . . . . . . 35
Section 8.23. Other Business . . . . . . . . . . . . . . . . . 35
-ii-
Section 8.24. Maintenance of Separate Existence . . . . . . . . 36
Section 8.25. Use of Proceeds of Investor Notes . . . . . . . . 38
Section 8.26. No ERISA Plan . . . . . . . . . . . . . . . . . . 38
ARTICLE 9. REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 9.1. Events of Default . . . . . . . . . . . . . . . . 38
Section 9.2. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . 39
Section 9.3. Collection of Indebtedness and Suits for
Enforcement by the Indenture Trustee . . . . . 40
Section 9.4. Remedies; Priorities . . . . . . . . . . . . . . 42
Section 9.5. Optional Preservation of the Issuer Assets . . . 43
Section 9.6. Performance and Enforcement of Certain
Obligations . . . . . . . . . . . . . . . . . . 43
Section 9.7. Limitation on Suits . . . . . . . . . . . . . . . 44
Section 9.8. Unconditional Rights of Investor Noteholders to
Receive Principal and Interest . . . . . . . . . 45
Section 9.9. Restoration of Rights and Remedies . . . . . . . 45
Section 9.10. Rights and Remedies Cumulative . . . . . . . . . 45
Section 9.11. Delay or Omission Not a Waiver . . . . . . . . . 45
Section 9.12. Control by Investor Noteholders . . . . . . . . . 46
Section 9.13. Waiver of Past Defaults . . . . . . . . . . . . . 46
Section 9.14. Undertaking for Costs . . . . . . . . . . . . . . 47
Section 9.15. Waiver of Stay or Extension Laws . . . . . . . . 47
Section 9.16. Action on Investor Notes . . . . . . . . . . . . 47
ARTICLE 10. THE INDENTURE TRUSTEE . . . . . . . . . . . . . . . . . . . . 48
Section 10.1. Duties of the Indenture Trustee . . . . . . . . . . 48
Section 10.2. Rights of the Indenture Trustee . . . . . . . . . . 49
Section 10.3. Indenture Trustee's Disclaimer . . . . . . . . . . 51
Section 10.4. Indenture Trustee May Own Investor Notes . . . . . 51
Section 10.5. Notice of Defaults . . . . . . . . . . . . . . . . 51
Section 10.6. Compensation . . . . . . . . . . . . . . . . . . . 51
Section 10.7. Eligibility Requirements for Indenture Trustee . . 52
Section 10.8. Resignation or Removal of Indenture Trustee . . . . 53
Section 10.9. Successor Indenture Trustee by Merger . . . . . . . 54
Section 10.10. Appointment of Co-Indenture Trustee or Separate
Indenture Trustee . . . . . . . . . . . . . . . . 54
Section 10.11. Representations and Warranties of Indenture
Trustee . . . . . . . . . . . . . . . . . . . . . 56
Section 10.12. Preferential Collection of Claims Against the
Issuer . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE 11. DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . 56
Section 11.1. Termination of the Issuer's Obligations . . . . . . 56
Section 11.2. Application of Trust Money . . . . . . . . . . . . 58
Section 11.3. Repayment to the Issuer . . . . . . . . . . . . . . 58
ARTICLE 12. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 12.1. Without Consent of the Investor Noteholders . . . . 58
Section 12.2. With Consent of the Investor Noteholders . . . . . 59
-iii-
Section 12.3. Indenture Supplements . . . . . . . . . . . . . . . 60
Section 12.4. Revocation and Effect of Consents . . . . . . . . . 60
Section 12.5. Notation on or Exchange of Investor Notes . . . . . 61
Section 12.6. The Indenture Trustee to Sign Amendments, etc. . . 61
Section 12.7. Conformity with Trust Indenture Act . . . . . . . . 61
ARTICLE 13. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 13.1. Compliance Certificates and Opinions . . . . . . . 61
Section 13.2. Forms of Documents Delivered to Indenture Trustee . 63
Section 13.3. Actions of Noteholders . . . . . . . . . . . . . . 64
Section 13.4. Notices . . . . . . . . . . . . . . . . . . . . . . 64
Section 13.5. Conflict with TIA . . . . . . . . . . . . . . . . . 66
Section 13.6. Rules by the Indenture Trustee . . . . . . . . . . 66
Section 13.7. Duplicate Originals . . . . . . . . . . . . . . . . 67
Section 13.8. Benefits of Indenture . . . . . . . . . . . . . . . 67
Section 13.9. Payment on Business Day . . . . . . . . . . . . . . 67
Section 13.10. Governing Law . . . . . . . . . . . . . . . . . . 67
Section 13.11. Severability of Provisions . . . . . . . . . . . . 67
Section 13.12. Counterparts . . . . . . . . . . . . . . . . . . . 67
Section 13.13. Successors . . . . . . . . . . . . . . . . . . . . 68
Section 13.14. Table of Contents, Headings, etc. . . . . . . . . 68
Section 13.15. Recording of Indenture . . . . . . . . . . . . . . 68
Section 13.16. No Petition . . . . . . . . . . . . . . . . . . . . 68
Section 13.17. SUBIs . . . . . . . . . . . . . . . . . . . . . . . 68
-iv-
BASE INDENTURE, dated as of June 30, 1999, between GREYHOUND
FUNDING LLC, a special purpose limited liability company established under
the laws of Delaware, as issuer (the "Issuer"), and THE CHASE MANHATTAN BANK,
a New York banking corporation, as trustee (in such capacity, the "Indenture
Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of
one or more series of Notes from time to time, issuable as provided in this
Indenture;
WHEREAS, all things necessary to make this Indenture a
legal, valid and binding agreement of the Issuer, in accordance with its
terms, have been done, and the Issuer proposes to do all the things necessary
to make the Investor Notes, when executed by the Issuer and authenticated and
delivered by the Indenture Trustee hereunder and duly issued by the Issuer,
the legal, valid and binding obligations of the Issuer as hereinafter
provided;
NOW, THEREFORE, for and in consideration of the premises and
the receipt of the Investor Notes by the Investor Noteholders, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Investor Noteholders as follows:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section A. Definitions.
Certain capitalized terms used herein (including the
preamble and the recitals hereto) shall have the meanings assigned to such
terms in the Definitions List attached hereto as Schedule 1 (the "Definitions
List"), as such Definitions List may be amended or modified from time to time
in accordance with the provisions hereof.
Section B. Cross-References.
Unless otherwise specified, references in this Indenture and
in each other Transaction Document to any Article or Section are references
to such Article or Section of this Indenture or such other Transaction
Document, as the case may be and, unless otherwise specified, references in
any Article, Section or definition to any clause are references to such
clause of such Article, Section or definition.
-1-
Section C. Accounting and Financial Determinations; No
Duplication.
Where the character or amount of any asset or liability or
item of income or expense is required to be determined, or any accounting
computation is required to be made, for the purpose of this Indenture, such
determination or calculation shall be made, to the extent applicable and
except as otherwise specified in this Indenture, in accordance with GAAP.
When used herein, the term "financial statement" shall include the notes and
schedules thereto. All accounting determinations and computations hereunder
or under any other Transaction Documents shall be made without duplication.
Section D. Rules of Construction.
In this Indenture, unless the context otherwise requires:
a. the singular includes the plural and
vice versa;
b. reference to any Person includes such
Person's successors and assigns but, if applicable, only if such
successors and assigns are permitted by this Indenture, and reference
to any Person in a particular capacity only refers to such Person in
such capacity;
c. reference to any gender includes the
other gender;
d. reference to any Requirement of Law
means such Requirement of Law as amended, modified, codified or
reenacted, in whole or in part, and in effect from time to time;
e. "including" (and with correlative
meaning "include") means including without limiting the generality of
any description preceding such term; and
f. with respect to the determination of any
period of time, "from" means "from and including" and "to" means "to
but excluding".
ARTICLE I.
THE INVESTOR NOTES
A.Designation and Terms of Investor Notes.
-2-
Each Series of Investor Notes and any Class thereof may be
issued in bearer form (the "Bearer Notes") with attached interest coupons and
a special coupon (collectively, the "Coupons") or in fully registered form
(the "Registered Notes"), and, in each case, substantially in the form
specified in the applicable Indenture Supplement, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted hereby or by the related Indenture Supplement and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined to
be appropriate by the Authorized Officers executing such Investor Notes, as
evidenced by their execution of the Investor Notes. All Investor Notes of any
Series shall, except as specified in the related Indenture Supplement, be
equally and ratably entitled as provided herein to the benefits hereof
without preference, priority or distinction on account of the actual time or
times of authentication and delivery, all in accordance with the terms and
provisions of this Indenture and the applicable Indenture Supplement. The
aggregate principal amount of Investor Notes which may be authenticated and
delivered under this Indenture is unlimited. The Investor Notes shall be
issued in the denominations set forth in the related Indenture Supplement.
B.Investor Notes Issuable in Series.
1. The Investor Notes may be issued in one or more Series.
Each Series of Investor Notes shall be created by an Indenture Supplement.
2. Investor Notes of a new Series may from time to time
be executed by the Issuer and delivered to the Indenture Trustee for
authentication and thereupon the same shall be authenticated and delivered by
the Indenture Trustee upon the receipt of an Issuer Request at least three
(3) Business Days (or such shorter time as is acceptable to the Indenture
Trustee) in advance of the related Series Closing Date and upon delivery by
the Issuer to the Indenture Trustee, and receipt by the Indenture Trustee, of
the following:
(i) an Issuer Order authorizing and directing the
authentication and delivery of the Investor Notes of such new Series
by the Indenture Trustee and specifying the designation of such new
Series, the Initial Invested Amount (or the method for calculating
such Initial Invested Amount) and the Note Rate (or the method for
allocating interest payments or other cash flows to such Series), if
any, with respect to such Series;
(ii) an Indenture Supplement satisfying the criteria set
forth in Section 2.2(c) executed by the Issuer and specifying the
Principal Terms of such Series;
(iii) a Tax Opinion;
-3-
(iv) written confirmation from each Rating Agency that the
Rating Agency Condition shall have been satisfied with respect to
such issuance;
(v) an Officer's Certificate of the Issuer, that on the
Series Closing Date after giving effect to the issuance of such new
Series, (i) neither an Amortization Event nor a Potential
Amortization Event with respect to any Series of Investor Notes nor
an Asset Deficiency is continuing or will occur, (ii) the issuance
of the new Series of Investor Notes will not result in any breach of
any of the terms, conditions or provisions of or constitute a default
under any indenture, mortgage, deed of trust or other agreement or
instrument to which the Issuer is a party or by which it or its
property is bound or any order of any court or administrative agency
entered in any suit, action or other judicial or administrative
proceeding to which the Issuer is a party or by which it or its
property may be bound or to which it or its property may be subject
and (iii) all conditions precedent provided in this Base Indenture
and the related Indenture Supplement with respect to the
authentication and delivery of the new Series of Investor Notes have
been complied with; and
(vi) such other documents, instruments, certifications,
agreements or other items as the Indenture Trustee may reasonably
require.
3. In conjunction with the issuance of a new Series of
Investor Notes, the parties hereto shall execute an Indenture Supplement,
which shall specify the relevant terms with respect to any newly issued
Series of Investor Notes, which may include without limitation:
a. its name or designation;
b. an Initial Invested Amount or the method of
calculating the Initial Invested Amount;
c. the Note Rate (or formula for the determination thereof);
d. the Series Closing Date;
e. each Rating Agency rating such Series;
f. the name of the Clearing Agency or Foreign Clearing
Agency, if any;
g. the interest payment date or dates and the date or dates
from which interest shall accrue;
-4-
h. the method of allocating Collections with respect to such
Series;
i. the method by which the principal amount of Investor
Notes of such Series shall amortize or accrete;
j. the names of any Series Accounts to be used by such
Series and the terms governing the operation of any such accounts and
use of moneys therein;
k. the Series Servicing Fee and the Series Servicing Fee
Percentage;
l. the terms on which the Investor Notes of such Series may
be redeemed, repurchased or remarketed to other investors;
m. any deposit into any Series Account;
n. the number of Classes of such Series, and if more than
one Class, the rights and priorities of each such Class;
o. the priority of any Series with respect to any other
Series;
p. the Lease Rate Caps required to be maintained with
respect to such Series; and
q. any other relevant terms of such Series (including
whether or not such Series will be pledged as collateral for an
issuance of any other securities, including commercial paper) (all
such terms, the "Principal Terms" of such Series).
The terms of such Indenture Supplement may modify or amend the terms of this
Indenture solely as applied to such new Series. If on the date of the
issuance of such Series there is issued and outstanding one or more Series of
Investor Notes and no Series of Investor Notes is currently rated by a Rating
Agency, then as a condition to such issuance a nationally recognized
investment banking firm or commercial bank shall also deliver to the
Indenture Trustee a certificate of an officer thereof stating, in substance,
that, to the best of such officer's knowledge and belief, the issuance of
such new Series of Investor Notes will not have a material adverse effect on
the timing or distribution of payments to such other Series of Investor Notes
then issued and outstanding.
4. The Issuer may direct the Indenture Trustee to
deposit all or a portion of the net proceeds from the issuance of any new
Series of Investor Notes into a Series Account for another Series of Investor
-5-
Notes and may specify that the proceeds from the sale of such new Series of
Investor Notes may be used to reduce the Invested Amount of another Series of
Investor Notes.
C.Execution and Authentication.
1. The Investor Notes shall, upon issue pursuant to
Section 2.2, be executed on behalf of the Issuer by an Authorized Officer and
delivered by the Issuer to the Indenture Trustee for authentication and
redelivery as provided herein. If an Authorized Officer whose signature is
on an Investor Note no longer holds that office at the time the Investor Note
is authenticated, the Investor Note shall nevertheless be valid.
2. At any time and from time to time after the
execution and delivery of this Indenture, the Issuer may deliver Investor
Notes of any particular Series executed by the Issuer to the Indenture
Trustee for authentication, together with one or more Issuer Orders for the
authentication and delivery of such Investor Notes, and the Indenture
Trustee, in accordance with such Issuer Order and this Indenture, shall
authenticate and deliver such Investor Notes. If specified in the related
Indenture Supplement for any Series of Investor Notes, the Indenture Trustee
shall authenticate and deliver outside the United States the Global Note that
is issued upon original issuance thereof, upon receipt of an Issuer Order, to
the Depository against payment of the purchase price therefor. If specified
in the related Indenture Supplement for any Series of Investor Notes, the
Indenture Trustee shall authenticate Book-Entry Notes that are issued upon
original issuance thereof, upon receipt of an Issuer Order, to a Clearing
Agency, a Foreign Clearing Agency or its nominee as provided in Section 2.10
against payment of the purchase price thereof.
3. No Investor Note shall be entitled to any benefit
under this Indenture or be valid for any purpose unless there appears on such
Investor Note a certificate of authentication substantially in the form
provided for herein, duly executed by the Indenture Trustee by the manual
signature of a Responsible Officer (and the Luxembourg agent (the "Luxembourg
Agent"), if such Investor Notes are listed on the Luxembourg Stock Exchange).
Such signatures on such certificate shall be conclusive evidence, and the
only evidence, that the Investor Note has been duly authenticated under this
Indenture. The Indenture Trustee may appoint an authenticating agent
acceptable to the Issuer to authenticate Investor Notes. Unless limited by
the term of such appointment, an authenticating agent may authenticate
Investor Notes whenever the Indenture Trustee may do so. Each reference in
this Indenture to authentication by the Indenture Trustee includes
authentication by such agent. The Indenture Trustee's certificate of
authentication shall be in substantially the following form:
-6-
This is one of the Investor Notes of a series issued under
the within mentioned Indenture.
THE CHASE
MANHATTAN BANK, as
Indenture Trustee
By: _________________
Authorized Signatory
4. Each Investor Note shall be dated and issued as of
the date of its authentication by the Indenture Trustee, except Bearer Notes
which shall be dated the applicable Series Closing Date as provided in the
related Indenture Supplement..
5. Notwithstanding the foregoing, if any Investor Note
shall have been authenticated and delivered hereunder but never issued and
sold by the Issuer, and the Issuer shall deliver such Investor Note to the
Indenture Trustee for cancellation, together with a written statement (which
need not comply with Section 13.2 and need not be accompanied by an Opinion
of Counsel) stating that such Investor Note has never been issued and sold by
the Issuer, for all purposes of this Indenture such Investor Note shall be
deemed never to have been authenticated and delivered hereunder and shall not
be entitled to the benefits of this Indenture.
D.Registration of Transfer and Exchange of Notes.
1. The Issuer shall cause to be kept at the office or
agency to be maintained by a transfer agent and registrar (the "Transfer
Agent and Registrar"), a register (the "Note Register") in which, subject to
such reasonable regulations as it may prescribe, the Transfer Agent and
Registrar shall provide for the registration of the Investor Notes of each
Series (unless otherwise provided in the related Indenture Supplement) and of
transfers and exchanges of the Investor Notes as herein provided. Chase is
hereby initially appointed Transfer Agent and Registrar for the purposes of
registering the Investor Notes and transfers and exchanges of the Investor
Notes as herein provided. If any form of Investor Note is issued as a Global
Note, the Indenture Trustee may, or if and so long as any Series of Investor
Notes is listed on the Luxembourg Stock Exchange and such exchange shall so
require, the Indenture Trustee shall appoint a co-transfer agent and
co-registrar in Luxembourg or another European city. Any reference in this
Indenture to the Transfer Agent and Registrar shall include any co-transfer
agent and co-registrar unless the context otherwise requires. Chase shall be
permitted to resign as Transfer Agent and Registrar upon 30 days' written
notice to the Indenture Trustee; provided, however, that such resignation
shall not be effective and Chase shall continue to perform its duties as
-7-
Transfer Agent and Registrar until the Indenture Trustee has appointed a
successor Transfer Agent and Registrar with the consent of the Issuer.
If a Person other than the Indenture Trustee is appointed by
the Issuer as the Transfer Agent and Registrar, the Issuer will give the
Indenture Trustee prompt written notice of the appointment of such Transfer
Agent and Registrar and of the location, and any change in the location, of
the Transfer Agent and Register, and the Indenture Trustee shall have the
right to inspect the Transfer Agent and Register at all reasonable times and
to obtain copies thereof.
An institution succeeding to the corporate agency business
of the Transfer Agent and Registrar shall continue to be the Transfer Agent
and Registrar without the execution or filing of any paper or any further act
on the part of the Indenture Trustee or such Transfer Agent and Registrar.
The Transfer Agent and Registrar shall maintain in The City
of New York (and, if so specified in the related Indenture Supplement for any
Series of Notes, any other city designated in such Indenture Supplement) an
office or offices or agency or agencies where Investor Notes may be
surrendered for registration of transfer or exchange. The Transfer Agent and
Registrar initially designates its corporate trust office located at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 as its office for such purposes.
The Transfer Agent and Registrar shall give prompt written notice to the
Indenture Trustee, the Issuer and to the Investor Noteholders of any change
in the location of such office or agency.
Upon surrender for registration of transfer of any Investor
Note at the office or agency of the Transfer Agent and Registrar, if the
requirements of Section 2.4(b) and Section 8-401(a) of the UCC are met, the
Issuer shall execute and after the Issuer has executed, the Indenture Trustee
shall authenticate and (if the Transfer Agent and Registrar is different than
the Indenture Trustee, then the Transfer Agent and Registrar shall) deliver
to the Investor Noteholder, in the name of the designated transferee or
transferees, one or more new Investor Notes, in any authorized denominations,
of the same Class and a like aggregate principal amount; provided, however
that the provisions of this paragraph shall not apply to Bearer Notes.
At the option of any Holder of Registered Notes, Registered
Notes may be exchanged for other Registered Notes of the same Series in
authorized denominations of like aggregate principal amount, upon surrender
of the Registered Notes to be exchanged at any office or agency of the
Transfer Agent and Registrar maintained for such purpose. At the option of
any holder of Bearer Notes, subject to applicable laws and regulations
(including without limitation, the Bearer Rules), Bearer Notes may be
exchanged for other Bearer Notes or Registered Notes of the same Series in
authorized denominations of like aggregate principal amount, in the manner
-8-
specified in the Indenture Supplement for such Series, upon surrender of the
Bearer Notes to be exchanged at an office or agency of the Transfer Agent and
Registrar located outside the United States. Each Bearer Note surrendered
pursuant to this Section 2.4 shall have attached thereto (or be accompanied
by) all unmatured Coupons, provided that any Bearer Note so surrendered after
the close of business on the Record Date preceding the relevant Payment Date
need not have attached the Coupons relating to such Payment Date.
Whenever any Investor Notes of any Series are so surrendered
for exchange, if the requirements of Section 8-401(a) of the UCC are met, the
Issuer shall execute and after the Issuer has executed, the Indenture Trustee
shall authenticate and (if the Transfer Agent and Registrar is different than
the Indenture Trustee, then the Transfer Agent and Registrar shall) deliver
to the Investor Noteholder, the Investor Notes which the Investor Noteholder
making the exchange is entitled to receive.
All Investor Notes issued upon any registration of transfer
or exchange of the Investor Notes shall be the valid obligations of the
Issuer, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Investor Notes surrendered upon such registration of
transfer or exchange.
Every Investor Note presented or surrendered for
registration of transfer or exchange shall be (i) duly endorsed by, or be
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing, with such signature guaranteed by a
commercial bank or trust company located, or having a correspondent located,
in The City of New York or the city in which the Corporate Trust Office is
located, or by a member firm of a national securities exchange, and (ii)
accompanied by such other documents as the Indenture Trustee may require.
The preceding provisions of this Section 2.4
notwithstanding, the Indenture Trustee or the Transfer Agent and Registrar,
as the case may be, shall not be required to register the transfer of or
exchange any Investor Note of any Series for a period of 15 days preceding
the due date for any payment in full of the Investor Notes of such Series.
Unless otherwise provided in the related Indenture
Supplement, no service charge shall be made for any registration of transfer
or exchange of Investor Notes, but the Transfer Agent and Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Investor
Notes.
All Investor Notes (together with any Coupons attached to
Bearer Notes) surrendered for registration of transfer and exchange shall be
-9-
canceled by the Transfer Agent and Registrar and disposed of in a manner
satisfactory to the Indenture Trustee. The Indenture Trustee shall cancel
and destroy any Global Notes upon its exchange in full for Definitive Notes
and shall deliver a certificate of destruction to the Issuer. Such
certificate shall also state that a certificate or certificates of each
Foreign Clearing Agency was received with respect to each portion of such
Global Note exchanged for Definitive Notes in accordance with the related
Indenture Supplement.
The Issuer shall execute and deliver to the Indenture
Trustee or the Transfer Agent and Registrar, as applicable, Bearer Notes and
Registered Notes in such amounts and at such times as are necessary to enable
the Indenture Trustee to fulfill its responsibilities under this Indenture
and the Investor Notes.
2. Unless otherwise provided in the related Indenture
Supplement, registration of transfer of Registered Notes containing a legend
relating to the restrictions on transfer of such Registered Notes (which
legend shall be set forth in the Indenture Supplement relating to such
Investor Notes) shall be effected only if the conditions set forth in such
related Indenture Supplement are satisfied.
E.Mutilated, Destroyed, Lost or Stolen Notes.
If (a) any mutilated Investor Note (together, in the case of
Bearer Notes, with all unmatured Coupons, if any, appertaining thereto) is
surrendered to the Transfer Agent and Registrar, or the Transfer Agent and
Registrar receives evidence to its satisfaction of the destruction, loss or
theft of any Investor Note and (b) there is delivered to the Transfer Agent
and Registrar and the Indenture Trustee such security or indemnity as may be
reasonably required by them to save each of them harmless, then provided that
the requirements of Section 8-405 of the UCC are met, the Issuer shall
execute and after the Issuer has executed, the Indenture Trustee shall
authenticate and (unless the Transfer Agent and Registrar is different from
the Indenture Trustee, in which case the Transfer Agent and Registrar shall)
deliver (in compliance with applicable law), in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Investor Note, a new Investor
Note of like tenor and aggregate principal amount; provided, however, that if
any such destroyed, lost or stolen Investor Note, but not a mutilated
Investor Note, shall have become or within seven days shall be due and
payable, instead of issuing a replacement Investor Note, the Issuer may pay
such destroyed, lost or stolen Investor Note when so due or payable without
surrender thereof. If, after the delivery of such replacement Investor Note
or payment of a destroyed, lost or stolen Investor Note pursuant to the
proviso to the preceding sentence, a purchaser for value of the original
Investor Note in lieu of which such replacement Investor Note was issued
presents for payment such original Investor Note, the Issuer, the Transfer
-10-
Agent and Registrar and the Indenture Trustee shall be entitled to recover
such replacement Investor Note (or such payment) from the Person to whom it
was delivered or any Person taking such replacement Investor Note from such
Person to whom such replacement Investor Note was delivered or any assignee
of such Person, except a purchaser for value, 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, the Transfer Agent and
Registrar or the Indenture Trustee in connection therewith.
In connection with the issuance of any new Investor Note
under this Section 2.5, the Indenture Trustee or the Transfer Agent and
Registrar may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Indenture Trustee and
the Transfer Agent and Registrar) connected therewith. Any duplicate
Investor Note issued pursuant to this Section 2.5 shall constitute an
original contractual obligation of the Issuer whether or not the lost, stolen
or destroyed note shall be found at any time.
F.Appointment of Paying Agent.
1. The Indenture Trustee may appoint a Paying Agent with
respect to the Investor Notes. The Indenture Trustee hereby appoints Chase
as the initial Paying Agent. The Paying Agent shall have the revocable power
to withdraw funds and make distributions to Investor Noteholders from the
appropriate account or accounts maintained for the benefit of Noteholders as
specified in this Indenture or the related Indenture Supplement for any
Series pursuant to Article 5. The Indenture Trustee may revoke such power
and remove the Paying Agent, if the Indenture Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Indenture in any material respect or for other good cause. The
Indenture Trustee shall notify the Rating Agency of the removal of any Paying
Agent. If any form of Investor Note is issued as a Global Note, or if and so
long as any Series of Investor Notes are listed on the Luxembourg Stock
Exchange and such exchange shall so require, the Indenture Trustee shall
appoint a co-paying agent in Luxembourg or another European city. The Paying
Agent shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Indenture Trustee. In the event that any Paying Agent shall no
longer be the Paying Agent, the Indenture Trustee shall appoint a successor
to act as Paying Agent (which shall be a bank or trust company and may be the
Indenture Trustee) with the consent of the Issuer. The provisions of
Sections 10.01, 10.02, 10.03 and 10.06 shall apply to the Indenture Trustee
also in the capacity of Paying Agent, for so long as the Indenture Trustee
shall act as Paying Agent. Any reference in this Indenture to the Paying
Agent shall include any co-paying agent unless the context requires
otherwise.
-11-
2. The Indenture Trustee shall cause each Paying Agent
(other than itself) to execute and deliver to the Indenture Trustee an
instrument in which such Paying Agent shall agree with the Indenture Trustee
that such Paying Agent will:
a. hold all sums held by it for the payment of amounts due
with respect to the Investor 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 in the making of any payment
required to be made with respect to the Investor 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 the Investor Notes if at any time it ceases to meet the
standards required to be met by the 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 Investor Notes of
any applicable withholding taxes imposed thereon and with respect to
any applicable reporting requirements in connection therewith.
An institution succeeding to the corporate agency business of the Paying
Agent shall continue to be the Paying Agent without the execution or filing
of any paper or any further act on the part of the Indenture Trustee or such
Paying Agent.
3. Subject to applicable laws with respect to escheat
of funds, any money held by the Indenture Trustee or any Paying Agent or a
Clearing Agency or a Foreign Clearing Agency in trust for the payment of any
amount due with respect to any Investor Note and remaining unclaimed for two
years after such amount has become due and payable shall be discharged from
such trust and be paid to the Issuer on Issuer Request; and the Holder of
such Investor Note shall thereafter, as an unsecured general creditor, look
only to the Issuer for payment thereof (but only to the extent of the amounts
so paid to the Issuer), and all liability of the Indenture Trustee or such
Paying Agent with respect to such trust money shall thereupon cease;
provided, however, that the Indenture Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Issuer
-12-
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in New
York City, and London and Luxembourg (if the related Series of Investor Notes
has been listed on the Luxembourg Stock Exchange), if applicable, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Issuer.
The Indenture Trustee may also adopt and employ, at the expense of the
Issuer, any other reasonable means of notification of such repayment.
G.Persons Deemed Owners.
Prior to due presentation of an Investor Note for
registration of transfer, the Indenture Trustee, the Paying Agent, the
Transfer Agent and Registrar and any agent of any of them may treat the
Person in whose name any Investor Note is registered as the owner of such
Investor Note for the purpose of receiving distributions pursuant to Article
5 (as described in any Indenture Supplement) and for all other purposes
whatsoever, and neither the Indenture Trustee, the Paying Agent, the Transfer
Agent and Registrar nor any agent of any of them shall be affected by any
notice to the contrary.
In the case of a Bearer Note, the Indenture Trustee, the
Paying Agent, the Transfer Agent and Registrar and any agent of any of them
may treat the holder of a Bearer Note or Coupon as the owner of such Bearer
Note or Coupon for the purpose of receiving distributions pursuant to Article
5 and for all other purposes whatsoever, and neither the Indenture Trustee,
the Paying Agent, the Transfer Agent and Registrar nor any agent of any of
them shall be affected by any notice to the contrary.
H.Investor Noteholder List.
The Indenture Trustee will furnish or cause to be furnished
by the Transfer Agent and Registrar to the Issuer or the Paying Agent, within
five Business Days after receipt by the Indenture Trustee of a request
therefor from the Issuer or the Paying Agent, respectively, in writing, a
list in such form as the Issuer or the Paying Agent may reasonably require,
of the names and addresses of the Investor Noteholders of each Series as of
the most recent Record Date for payments to such Investor Noteholders.
Unless otherwise provided in the related Indenture Supplement, holders of
Investor Notes of any Series in a principal amount aggregating not less than
10% of the Investor Interest of such Series (the "Applicants") may apply in
writing to the Indenture Trustee, and if such application states that the
Applicants desire to communicate with other Investor Noteholders of any
Series with respect to their rights under this Indenture or under the
Investor Notes and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Indenture Trustee, after having been
-13-
adequately indemnified by such Applicants for its costs and expenses, shall
afford or shall cause the Transfer Agent and Registrar to afford such
Applicants access during normal business hours to the most recent list of
Investor Noteholders held by the Indenture Trustee and shall give the Issuer
notice that such request has been made, within five Business Days after the
receipt of such application. Such list shall be as of a date no more than 45
days prior to the date of receipt of such Applicants' request. Every
Investor Noteholder, by receiving and holding an Investor Note, agrees with
the Indenture Trustee that neither the Indenture Trustee, the Transfer Agent
and Registrar, nor any of their respective agents shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Investor Noteholders hereunder, regardless of the source
from which such information was obtained.
The Indenture Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names
and addresses of Investor Noteholders of each Series of Investor Notes. If
the Indenture Trustee is not the Registrar, the Issuer shall furnish to the
Indenture Trustee at least seven Business Days before each Payment Date and
at such other time as the Indenture Trustee may request in writing, a list in
such form and as of such date as the Indenture Trustee may reasonably require
of the names and addresses of Investor Noteholders of each Series of Investor
Notes.
I.Treasury Notes.
In determining whether the Investor Noteholders of the
required principal amount of Investor Notes have concurred in any direction,
waiver or consent, Investor Notes owned by the Issuer or any Affiliate of the
Issuer shall be considered as though they are not Outstanding, except that
for the purpose of determining whether the Indenture Trustee shall be
protected in relying on any such direction, waiver or consent, only Investor
Notes of which the Indenture Trustee has received written notice of such
ownership shall be so disregarded. Absent written notice to the Indenture
Trustee of such ownership, the Indenture Trustee shall not be deemed to have
knowledge of the identity of the individual beneficial owners of the Investor
Notes.
J.Book-Entry Notes.
Unless otherwise provided in any related Indenture
Supplement, the Investor Notes, upon original issuance, shall be issued in
the form of typewritten Notes representing the Book-Entry Notes, to be
delivered to the depository specified in such Indenture Supplement (the
"Depository") which shall be the Clearing Agency or the Foreign Clearing
Agency, by or on behalf of such Series. The Investor Notes of each Series
shall, unless otherwise provided in the related Indenture Supplement,
-14-
initially be registered on the Note Register in the name of the nominee of
the Clearing Agency or the Foreign Clearing Agency. No Beneficial Owner will
receive a definitive note representing such Beneficial Owner's interest in
the related Series of Investor Notes, except as provided in Section 2.11.
Unless and until definitive, fully registered Investor Notes of any Series
("Definitive Notes") have been issued to Beneficial Owners pursuant to
Section 2.11:
1. the provisions of this Section 2.10 shall be in full
force and effect with respect to each such Series;
2. the Issuer, the Paying Agent, the Transfer Agent and
Registrar and the Indenture Trustee may deal with the Clearing Agency
or the Foreign Clearing Agency and the applicable Clearing Agency
Participants for all purposes (including the payment of principal of
and interest on the Investor Notes and the giving of instructions or
directions hereunder) as the sole Holder of the Investor Notes, and
shall have no obligation to the Beneficial Owners;
3. to the extent that the provisions of this Section
2.10 conflict with any other provisions of this Indenture, the
provisions of this Section 2.10 shall control with respect to each
such Series; and
4. the rights of Beneficial Owners of each such Series
shall be exercised only through the Clearing Agency or the Foreign
Clearing Agency and the applicable Clearing Agency Participants and
shall be limited to those established by law and agreements between
such Beneficial Owners and the Clearing Agency or the Foreign
Clearing Agency and/or the Clearing Agency Participants, and all
references in this Indenture to actions by the Noteholders shall
refer to actions taken by the Clearing Agency or the Foreign Clearing
Agency upon instructions from the Clearing Agency Participants, and
all references in this Indenture to distributions, notices, reports
and statements to the Noteholders shall refer to distributions,
notices, reports and statements to the Clearing Agency or the Foreign
Clearing Agency, as registered holder of the Investor Notes of such
Series for distribution to the Beneficial Owners in accordance with
the procedures of the Clearing Agency. Pursuant to the Depository
Agreement applicable to a Series, unless and until Definitive Notes
of such Series 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 distributions of
principal and interest on the Investor Notes to such Clearing Agency
Participants.
K.Definitive Notes.
-15-
If (i) (A) the Issuer advises the Indenture Trustee in
writing that the Clearing Agency or the Foreign Clearing Agency is no longer
willing or able to discharge properly its responsibilities under the
applicable Depository Agreement, and (B) the Indenture Trustee or the Issuer
is unable to locate a qualified successor, (ii) the Issuer, at its option,
advises the Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or the Foreign Clearing Agency
with respect to any Series or (iii) after the occurrence of an Event of
Default, Beneficial Owners of a Majority in Interest of a Series of Investor
Notes advise the Indenture Trustee and the applicable Clearing Agency or the
Foreign Clearing Agency through the applicable Clearing Agency Participants
in writing that the continuation of a book-entry system through the
applicable Clearing Agency or Foreign Clearing Agency is no longer in the
best interests of such Beneficial Owners, the Indenture Trustee shall notify
all Beneficial Owners of such Series, through the applicable Clearing Agency
Participants, of the occurrence of any such event and of the availability of
Definitive Notes to Beneficial Owners of such Series requesting the same.
Upon surrender to the Indenture Trustee of the Investor Notes of such Series
by the applicable Clearing Agency or the Foreign Clearing Agency, accompanied
by registration instructions from the applicable Clearing Agency or the
applicable Foreign Clearing Agency for registration, the Issuer shall execute
and the Indenture Trustee shall authenticate and (if the Transfer Agent and
Registrar is different than the Indenture Trustee, then the Transfer Agent
and Registrar shall) deliver the Definitive Notes in accordance with the
instructions of the Clearing Agency. Neither the Issuer nor the Indenture
Trustee shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Notes of such Series all
references herein to obligations imposed upon or to be performed by the
applicable Clearing Agency or Foreign Clearing Agency shall be deemed to be
imposed upon and performed by the Indenture Trustee, to the extent applicable
with respect to such Definitive Notes, and the Indenture Trustee shall
recognize the Holders of the Definitive Notes of such Series as Noteholders
of such Series hereunder.
X.Xxxxxx Note.
If specified in the related Indenture Supplement for any
Series, the Investor Notes may be initially issued in the form of a single
temporary Global Note (the "Global Note") in bearer form, without interest
coupons, in the denomination of the Initial Invested Amount and substantially
in the form attached to the related Indenture Supplement. Unless otherwise
specified in the related Indenture Supplement, the provisions of this Section
2.12 shall apply to such Global Note. The Global Note will be authenticated
by the Indenture Trustee upon the same conditions, in substantially the same
manner and with the same effect as the Definitive Notes. The Global Note may
-16-
be exchanged in the manner described in the related Indenture Supplement for
Registered or Bearer Notes in definitive form.
M.Principal and Interest.
1. The principal of each Series of Investor Notes shall
be payable at the times and in the amount set forth in the related Indenture
Supplement and in accordance with Section 6.1.
2. Each Series of Investor Notes shall accrue interest
as provided in the related Indenture Supplement and such interest shall be
payable on each Payment Date for such Series in accordance with Section 6.1
and the related Indenture Supplement.
3. Except as provided in the following sentence, the
Person in whose name any Investor Note is registered at the close of business
on any Record Date with respect to a Payment Date for such Investor Note
shall be entitled to receive the principal and interest payable on such
Payment Date notwithstanding the cancellation of such Investor Note upon any
registration of transfer, exchange or substitution of such Investor Note
subsequent to such Record Date. Any interest payable at maturity shall be
paid to the Person to whom the principal of such Investor Note is payable.
4. If the Issuer defaults in the payment of interest on
the Investor Notes of any Series, such interest, to the extent paid on any
date that is more than five (5) Business Days after the applicable due date,
shall, at the option of the Issuer, cease to be payable to the Persons who
were Investor Noteholders of such Series at the applicable Record Date and
the Issuer shall pay the defaulted interest in any lawful manner, plus, to
the extent lawful, interest payable on the defaulted interest, to the Persons
who are Investor Noteholders of such Series on a subsequent special record
date which date shall be at least five (5) Business Days prior to the payment
date, at the rate provided in this Indenture and in the Investor Notes of
such Series. The Issuer shall fix or cause to be fixed each such special
record date and payment date, and at least 15 days before the special record
date, the Issuer (or the Indenture Trustee, in the name of and at the expense
of the Issuer) shall mail to Investor Noteholders of such Series a notice
that states the special record date, the related payment date and the amount
of such interest to be paid.
X.Xxx Treatment.
The Issuer has structured this Indenture and the Investor
Notes have been (or will be) issued with the intention that the Investor
Notes will qualify under applicable tax law as indebtedness of the Issuer and
any entity acquiring any direct or indirect interest in any Investor Note by
acceptance of its Investor Notes (or, in the case of a Beneficial Owner, by
-17-
virtue of such Beneficial Owner's acquisition of a beneficial interest
therein) agrees to treat the Investor Notes (or beneficial interests therein)
for purposes of Federal, state and local and income or franchise taxes and
any other tax imposed on or measured by income, as indebtedness of the
Issuer. Each Investor Noteholder agrees that it will cause any Beneficial
Owner's acquiring an interest in an Investor Note through it to comply with
this Indenture as to treatment as indebtedness for such tax purposes.
ARTICLE II.
SECURITY
X.Xxxxx of Security Interest.
1. To secure the Issuer Obligations, the Issuer hereby
pledges, assigns, conveys, delivers, transfers and sets over to the Indenture
Trustee, for the benefit of the Investor Noteholders, and hereby grants to
the Indenture Trustee, for the benefit of the Investor Noteholders, a
security interest in, all of the Issuer's right, title and interest in and to
all of the Issuer's assets, property and interests in property of any kind or
nature whatsoever (other than as specified below) whether now or hereafter
existing, acquired or created (all of the foregoing being referred to as the
"Collateral"), including without limitation, all right, title and interest of
the Issuer in the following property and interests in property:
a. the SUBIs, the SUBI Certificates and any
related rights, authority, powers and privileges of the holder
thereof under the related Origination Trust Documents and all
payments and distributions thereunder of whatever kind or character
and whether in cash or other property, at any time made or
distributable to the Issuer thereunder or in respect thereof, whether
due or to become due, including, without limitation, the immediate
and continuing right of the Issuer to receive and collect all amounts
payable to the holder thereof and all of the Issuer's rights,
remedies, powers, interests and privileges under the Origination
Trust Documents (whether arising pursuant to the terms thereof or
otherwise available to the Issuer), including, without limitation,
the right to enforce the Origination Trust Documents, to give or
withhold any and all consents, requests, notices, directions,
approvals or waivers thereunder and all amounts due and to become due
thereunder, whether payable as indemnities or damages for breach
thereof;
b. a beneficial interest in the Initial
Units and any Unit Leases, Unit Vehicles and the Related Rights
associated therewith, and all Additional Units and any Unit Leases,
Unit Vehicles and the Related Rights associated therewith hereafter
-18-
acquired by the Issuer, including, without limitation, all monies due
or to become due with respect thereto and all proceeds thereof;
c. the Transfer Agreement, including,
without limitation, all of the Issuer's rights, remedies, powers,
interests and privileges under the Transfer Agreement (whether
arising pursuant to the terms thereof or otherwise available to the
Issuer), including, without limitation, the right to enforce the
Transfer Agreement, to give or withhold any and all consents,
requests, notices, directions, approvals or waivers thereunder and
all amounts due and to become due thereunder, whether payable as
indemnities or damages for breach thereof;
d. the Administration Agreement, including,
without limitation, all of the Issuer's rights, remedies, powers,
interests and privileges under the Administration Agreement (whether
arising pursuant to the terms thereof or otherwise available to the
Issuer), including, without limitation, the right to enforce the
Administration Agreement, to give or withhold any and all consents,
requests, notices, directions, approvals or waivers thereunder and
all amounts due and to become due thereunder, whether payable as
indemnities or damages for breach thereof;
e. the Collection Account and the Gain on
Sale Account and all monies on deposit from time to time in the
Collection Account and the Gain on Sale Account and all proceeds
thereof (including any Permitted Investments purchased with monies
from any account held for the benefit of the Issuer or the Investor
Noteholders and any investment earnings thereon);
f. each Series Account and all monies on
deposit from time to time in such Series Account and all proceeds
thereof (including any Permitted Investments purchased with monies
from any account held for the benefit of the Issuer or the Investor
Noteholders and any investment earnings thereon);
g. all additional property that may from
time to time hereafter (pursuant to the terms of any Indenture
Supplement or otherwise) be subjected to the grant and pledge hereof
by the Issuer, including, without limitation, any Hedging
Instruments; and
h. all proceeds of any and all of the
foregoing including, without limitation, all present and future
claims, demands, causes of action and chooses 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
-19-
of the foregoing, including all proceeds of the conversion thereof,
voluntary or involuntary, into cash or other liquid property, all
cash proceeds, accounts, accounts receivable, notes, drafts,
acceptances, chattel paper, checks, deposit accounts, insurance
proceeds, condemnation awards, rights to payment of any and every
kind and other forms of obligations and receivables, instruments and
other property which at any time constitute all or part of or are
included in the proceeds of any of the foregoing.
2. The foregoing grant is made in trust to secure the
Issuer Obligations and to secure compliance with the provisions of this
Indenture and any Indenture Supplement, all as provided in this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the Investor
Noteholders, acknowledges such grant, accepts the trusts under this Indenture
in accordance with the provisions of this Indenture and subject to Section
10.1 and 10.2, agrees to perform its duties required in this Indenture to the
best of its abilities to the end that the interests of the Investor
Noteholders may be adequately and effectively protected. The Collateral
shall secure the Investor Notes equally and ratably without prejudice,
priority (except, with respect to any Series of Investor Notes, as otherwise
stated in the applicable Indenture Supplement) or distinction.
Section B. Transaction Documents.
Upon the occurrence of a default or breach by any Person
party to a Transaction Document, promptly following a request from the
Indenture Trustee to do so and at the Issuer's expense, the Issuer agrees to
take all such lawful action as permitted under this Indenture as the
Indenture Trustee may request to compel or secure the performance and
observance by SPV, the Servicer, the Administrator, VMS or PHH Consumer Lease
or any other party to any of the Transaction Documents of its obligations
thereunder, in each case in accordance with the applicable terms thereof, and
to exercise any and all rights, remedies, powers and privileges lawfully
available to the Issuer to the extent and in the manner directed by the
Indenture Trustee, including, without limitation, the transmission of notices
of default and the institution of legal or administrative actions or
proceedings to compel or secure performance by each of SPV, the Servicer, the
Administrator, VMS or PHH Consumer Lease (or such other party to any
Transaction Document), of their respective obligations thereunder. If (i)
the Issuer shall have failed, within 30 days of receiving the direction of
the Indenture Trustee, to take commercially reasonable action to accomplish
such directions of the Indenture, (ii) the Issuer refuses to take any such
action, or (iii) the Indenture Trustee reasonably determines that such action
must be taken immediately, the Indenture Trustee may take such previously
directed action and any related action permitted under this Indenture which
the Indenture Trustee thereafter determines is appropriate (without the need
under this provision or any other provision under the Indenture to direct the
-20-
Issuer to take such action), on behalf of the Issuer and the Investor
Noteholders.
C.Release of Issuer Assets.
1. The Indenture Trustee shall when required by the
provisions of this Indenture 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 Section 3.2 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 moneys.
2. The Indenture Trustee shall, at such time as there are
no Investor Notes Outstanding, release any remaining portion of the Issuer
Assets that secured the Investor Notes from the lien of this Indenture and
release to the Issuer any funds then on deposit in the Issuer Accounts. The
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 3.2(b) only upon receipt of an Issuer Order
accompanied by an Officer's Certificate, an Opinion of Counsel and (if this
Indenture is qualified under the TIA and the TIA so requires) Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1) meeting the
applicable requirements of Section 13.1.
D.Opinions of Counsel.
The Indenture Trustee shall receive at least seven days'
notice when requested by the Issuer to take any action pursuant to Section
3.2(a), accompanied by copies of any instruments involved, and the Indenture
Trustee may also require as a condition of such action, an Opinion of
Counsel, in form and substance satisfactory to the Indenture Trustee, stating
the legal effect of any such action, outlining the steps required to complete
the same, and concluding that all such action will not materially and
adversely impair the security for the Investor Notes or the rights of the
Noteholders; provided, however that such Opinion of Counsel shall not be
required to express an opinion as to the fair value of the Issuer Assets.
Counsel rendering any such opinion may rely, without independent
investigation, on the accuracy and validity of any certificate or other
instrument delivered to the Indenture Trustee in connection with any such
action.
E.Stamp, Other Similar Taxes and Filing Fees.
The Issuer shall indemnify and hold harmless the Indenture
Trustee and each Investor Noteholder from any present or future claim for
liability for any stamp or other similar tax and any penalties or interest
-21-
with respect thereto, that may be assessed, levied or collected by any
jurisdiction in connection with this Indenture or any Collateral. The Issuer
shall pay, or reimburse the Indenture Trustee for, any and all amounts in
respect of, all search, filing, recording and registration fees, taxes,
excise taxes and other similar imposts that may be payable or determined to
be payable in respect of the execution, delivery, performance and/or
enforcement of this Indenture.
ARTICLE III.
REPORTS
A.Servicer Reports.
The Issuer will deliver or cause to be delivered to the
Indenture Trustee:
(i) prior to 1:00 p.m., New York City time, on each Deposit
Date, a copy of the Deposit Report (a "Deposit Report") prepared and
delivered by the Servicer to the Issuer pursuant to the Origination
Trust Servicing Agreement, setting forth the aggregate amount of
Collections deposited in the Collection Account on such Deposit Date;
(ii) on each Determination Date, a copy of the Settlement
Statement (a "Settlement Statement") prepared and delivered by the
Servicer to the Issuer pursuant to the Origination Trust Servicing
Agreement, setting forth the information required to be set forth
therein under the Origination Trust Servicing Agreement and each
Indenture Supplement and such other information as the Indenture
Trustee may reasonably request;
(iii) within ten Business Days of the last Business Day of
each fiscal quarter of the Issuer, a copy of the Quarterly Compliance
Certificate (a "Quarterly Compliance Certificate") prepared and
delivered by the Servicer pursuant to the Origination Trust Servicing
Agreement, setting forth the information required to be set forth
therein under the Origination Trust Servicing Agreement;
(iv) on or before March 31 of each year, a copy of the
Annual Servicing Report (an "Annual Servicing Report") prepared by
the Servicer's independent auditors in accordance with the
Origination Trust Servicing Agreement, setting forth the information
required to be set forth therein under the Origination Trust
Servicing Agreement;
(v) within 45 days following the end of each fiscal quarter
of the Servicer, a copy of the certificate prepared and delivered by
-22-
the Servicer pursuant Section 8.3(b) of the Origination Trust
Servicing Agreement;
(vi) promptly upon the delivery by the Servicer to the
Issuer, a copy of any other information, reports or other materials
required to be delivered by the Servicer to the Issuer pursuant to
the Origination Trust Servicing Agreement;
(vii) from time to time such additional information
regarding the financial position, results of operations or business
of the Origination Trust or VMS as the Indenture Trustee may
reasonably request to the extent that the Servicer delivers such
information to the Issuer pursuant to the Origination Trust Servicing
Agreement; and
(viii) at the time of delivery of the item described in
clause (iii) above, a certificate of an officer of the Issuer that,
except as provided in any certificate delivered in accordance with
Section 8.8, no Amortization Event, Potential Amortization Event,
Termination Event, Default or Event of Default under any of the
Transaction Documents to which it is a party has occurred or is
continuing during such fiscal quarter.
B.Communication to Investor Noteholders.
1. If this Indenture is qualified under the TIA, the
Investor Noteholders may communicate pursuant to TIA Section 312(b) with
other Investor Noteholders with respect to their rights under this Indenture
or under the Investor Notes.
2. If this Indenture is qualified under the TIA, the
Issuer, the Indenture Trustee and the Transfer Agent and Registrar shall have
the protection of TIA Section 312(c).
C.Rule 144A Information.
For so long as any of the Investor Notes are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
the Issuer agrees to provide to any Investor Noteholder or Beneficial Owner
and to any prospective purchaser of Investor Notes designated by such
Investor Noteholder or Beneficial Owner upon the request of such Investor
Noteholder or Beneficial Owner or prospective purchaser, any information
required to be provided to such holder or prospective purchaser to satisfy
the conditions set forth in Rule 144A(d)(4) under the Securities Act.
D.Reports by the Issuer.
-23-
1. Unless otherwise specified in the related Indenture
Supplement, on each Settlement Date, the Issuer shall deliver to the
Indenture Trustee or the Paying Agent and the Indenture Trustee or the Paying
Agent, as the case may be, shall forward to each Investor Noteholder of each
Outstanding Series the Monthly Settlement Statement with respect to such
Series, with a copy to the Rating Agencies.
2. As soon as available, but in any event within 90
days after the end of each fiscal year of the Issuer, the Issuer shall
deliver to the Indenture Trustee or the Paying Agent and the Indenture
Trustee or the Paying Agent, as the case may be, shall forward to each
Investor Noteholder of each Outstanding Series a copy of the audited
financial statements of the Issuer at the end of such year, prepared by
independent certified public accountants of nationally recognized standing.
3. Unless otherwise specified in the related Indenture
Supplement, on or before January 31 of each calendar year, beginning with
calendar year 2000, the Indenture Trustee or the Paying Agent shall furnish
to each Person who at any time during the preceding calendar year was an
Investor Noteholder of a Series of Investor Notes a statement prepared by or
on behalf of the Issuer containing the information which is required to be
contained in the Monthly Settlement Statements with respect to such Series of
Investor Notes aggregated for such calendar year or the applicable portion
thereof during which such Person was an Investor Noteholder, together with
such other customary information (consistent with the treatment of the
Investor Notes as debt) as the Issuer deems necessary or desirable to enable
the Investor Noteholders to prepare their tax returns (each such statement,
an "Annual Noteholders' Tax Statement"). Such obligations of the Issuer to
prepare and the Indenture Trustee or the Paying Agent to distribute the
Annual Noteholders' Tax Statement shall be deemed to have been satisfied to
the extent that substantially comparable information shall be provided by the
Indenture Trustee or the Paying Agent pursuant to any requirements of the
Code as from time to time in effect.
E.Reports by the Indenture Trustee.
If this Indenture is qualified under the TIA, within 60 days
after each March 31, beginning on March 31 in the first year after this
Indenture is qualified under the TIA, if required by TIA Section 313(a), the
Indenture Trustee shall mail to each Investor Noteholder as required by TIA
Section 313(c) a brief report dated as of such date that complies with TIA
Section 313(a). The Indenture Trustee also shall comply with TIA
Section 313(b). A copy of such each report at the time of its mailing to
Investor Noteholders shall be filed by the Indenture Trustee with the
Securities and Exchange Commission and each stock exchange, if any, on which
the Investor Notes are listed. The Issuer shall notify the Indenture Trustee
if and when the Investor Notes are listed on any stock exchange.
-24-
ARTICLE IV.
ALLOCATION AND APPLICATION OF COLLECTIONS
A.Collection Account.
1. Establishment of Collection Account. The Indenture
Trustee shall establish and maintain in the name of the Indenture Trustee,
for the benefit of the Noteholders, an Eligible Deposit Account bearing a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Noteholders (the "Collection Account"). If at
any time the Indenture Trustee obtains knowledge that the Collection Account
is no longer an Eligible Deposit Account, the Indenture Trustee shall,
within 30 days of obtaining such knowledge, establish a new Collection
Account that is an Eligible Deposit Account and transfer into the new
Collection Account all cash and investments from the non-qualifying
Collection Account. Initially, the Collection Account will be established
with Chase. The Indenture Trustee shall possess all right, title and
interest in all moneys, instruments, securities and other property on deposit
from time to time in the Collection Account and the proceeds thereof for the
benefit of the Noteholders. The Collection Account shall be under the sole
dominion and control of the Indenture Trustee for the benefit of the
Noteholders.
2. Series Accounts. If so provided in the related
Indenture Supplement, the Indenture Trustee, for the benefit of the Investor
Noteholders, shall cause to be established and maintained, one or more Series
Accounts and/or administrative sub-accounts of the Collection Account to
facilitate the proper allocation of Collections in accordance with the terms
of such Indenture Supplement. Each such Series Account shall bear a
designation clearly indicating that the funds deposited therein are held for
the benefit of the Investor Noteholders of such Series. Each such Series
Account will be an Eligible Deposit Account, if so provided in the related
Indenture Supplement and will have the other features and be applied as set
forth in the related Indenture Supplement.
3. Administration of the Collection Account. The
Issuer shall instruct the institution maintaining the Collection Account in
writing to invest the funds on deposit in the Collection Account in Permitted
Investments. Any such investment shall mature and such funds shall be
available for withdrawal on or prior to the Transfer Date related to the
Monthly Period in which such funds were processed for collection, or if so
specified in the related Indenture Supplement, on the immediately succeeding
Payment Date. All such Permitted Investments will be credited to the
Collection Account and any such Permitted Investments that constitute (i)
Physical Property (and that is not either a United States Security
-25-
Entitlement or a Security Entitlement) shall be delivered to the Indenture
Trustee in accordance with paragraph (a) of the definition of "Delivery" and
shall be held by the Indenture Trustee pending maturity or disposition;
(ii) United States Security Entitlements or Security Entitlements shall be
Controlled by the Indenture Trustee pending maturity or disposition; and
(iii) Uncertificated Securities (and not United States Security Entitlements)
shall be delivered to the Indenture Trustee in accordance with paragraph (b)
of the definition of "Delivery" and shall be maintained by the Indenture
Trustee pending maturity or disposition. The Indenture Trustee shall take
such action as is required to maintain the Indenture Trustee's security
interest in the Permitted Investments credited to the Collection Account. In
the absence of written investment instructions hereunder, funds on deposit in
the Collection Account shall remain uninvested. Neither the Issuer nor the
Indenture Trustee shall dispose of (or permit the disposal of) any Permitted
Investments prior to the maturity thereof to the extent such disposal would
result in a loss of principal of such Permitted Investment.
B.Gain on Sale Account.
1. Establishment of Gain on Sale Account. The Indenture
Trustee shall establish and maintain in the name of the Indenture Trustee,
for the benefit of the Noteholders, an Eligible Deposit Account bearing a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Noteholders (the "Gain on Sale Account"). If at
any time the Indenture Trustee obtains knowledge that the Gain on Sale
Account is no longer an Eligible Deposit Account, the Indenture Trustee
shall, within 30 days of obtaining such knowledge, establish a new Gain on
Sale Account that is an Eligible Deposit Account and transfer into the new
Gain on Sale Account all cash and investments from the non-qualifying Gain on
Sale Account. Initially, the Gain on Sale Account will be established with
Chase. The Indenture Trustee shall possess all right, title and interest in
all moneys, instruments, securities and other property on deposit from time
to time in the Gain on Sale Account and the proceeds thereof for the benefit
of the Noteholders. The Gain on Sale Account shall be under the sole
dominion and control of the Indenture Trustee for the benefit of the
Noteholders.
2. Investment of Funds in the Gain on Sale Account.
The Issuer shall instruct the institution maintaining the Gain on Sale
Account in writing to invest the funds on deposit in the Gain on Sale Account
in Permitted Investments. Any such investment shall mature and such funds
shall be available for withdrawal on or prior to each Transfer Date. All
such Permitted Investments will be credited to the Gain on Sale Account and
any such Permitted Investments that constitute (i) Physical Property (and
that is not either a United States Security Entitlement or a Security
Entitlement) shall be delivered to the Indenture Trustee in accordance with
paragraph (a) of the definition of "Delivery" and shall be held by the
-26-
Indenture Trustee pending maturity or disposition; (ii) United States
Security Entitlements or Security Entitlements shall be Controlled by the
Indenture Trustee pending maturity or disposition; and (iii) Uncertificated
Securities (and not United States Security Entitlements) shall be delivered
to the Indenture Trustee in accordance with paragraph (b) of the definition
of "Delivery" and shall be maintained by the Indenture Trustee pending
maturity or disposition. The Indenture Trustee shall take such action as is
required to maintain the Indenture Trustee's security interest in the
Permitted Investments credited to the Gain on Sale Account. In the absence
of written investment instructions hereunder, funds on deposit in the Gain on
Sale Account shall remain uninvested. Neither the Issuer nor the Indenture
Trustee shall dispose of (or permit the disposal of) any Permitted
Investments prior to the maturity thereof to the extent such disposal would
result in a loss of principal of such Permitted Investment.
3. Earnings from Gain on Sale Account. All interest
and earnings (net of losses and investment expenses) paid on funds on deposit
in the Gain on Sale Account shall be deemed to be available and on deposit
for distribution.
4. Deposits to Gain on Sale Account. Amounts will be
deposited in the Gain on Sale Account in accordance with this Article 5, as
modified by any Indenture Supplement.
5. Withdrawals from Gain on Sale Account. No later
than 2:00 p.m., New York City time, on each Transfer Date, the Issuer shall
direct the Indenture Trustee in writing to withdraw from the Gain on Sale
Account an amount equal to the lesser of (x) the Monthly Residual Value Loss
for the immediately preceding Monthly Period and (y) the amount then on
deposit in the Gain on Sale Account and deposit such amount into the
Collection Account for allocation in accordance with Article 5, as modified
by any Indenture Supplement. On any Transfer Date on which the amount on
deposit in the Gain on Sale Account (after giving effect to any withdrawals
therefrom pursuant to the immediately preceding sentence) is greater than an
amount equal to the Applicable Gain on Sale Account Percentage of the sum of
the aggregate Lease Balance of each Eligible Lease that is a Closed-End Lease
allocated to the Lease SUBI as of last day of the Monthly Period immediately
preceding such Transfer Date and the Aggregate Residual Value Amount as of
such date, the Issuer shall direct the Indenture Trustee in writing to
withdraw such excess from the Gain on Sale Account and deposit it in the
Issuer General Account.
C.Collection of Money.
Except as otherwise 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
-27-
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 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 Issuer Assets, 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 a Default or Event of Default under this
Indenture and any right to proceeds thereafter as provided in Article 9.
D.Collections and Allocations.
1. Collections in General. Until this Indenture is
terminated pursuant to Section 11.1, the Issuer shall, and the Indenture
Trustee is authorized to, cause all Collections due and to become due to the
Issuer or the Indenture Trustee, as the case may be, under or in connection
with the Collateral to be paid directly to the Indenture Trustee for deposit
into the Collection Account. The Issuer agrees that if any Collections shall
be received by the Issuer in an account other than the Collection Account,
such monies, instruments, cash and other proceeds will not be commingled by
the Issuer with any of its other funds or property, if any, but will be held
separate and apart therefrom and shall be held in trust by the Issuer for,
and immediately remitted to, the Indenture Trustee, with any necessary
endorsement. All monies, instruments, cash and other proceeds received by
the Indenture Trustee pursuant to this Indenture shall be in immediately
available funds and shall be immediately deposited in the Collection Account
and shall be applied as provided in this Article 5.
2. Allocations for Investor Noteholders. On each
Deposit Date, the Issuer shall allocate Collections deposited into the
Collection Account in accordance with this Article 5 and shall instruct the
Indenture Trustee to withdraw the required amounts from the Collection
Account and make the required deposits in any Series Account in accordance
with this Article 5, as modified by any Indenture Supplement. The Issuer
shall make such deposits or payments on the date indicated therein in
immediately available funds or as otherwise provided in the Indenture
Supplement for any Series with respect to such Series. The Administrator, on
behalf of the Issuer, has agreed to furnish to the Indenture Trustee or the
Paying Agent, as applicable, written instructions to make the aforementioned
withdrawals and payments from the Collection Account and any Issuer Accounts
specified herein or in an Indenture Supplement. The Indenture Trustee and
the Paying Agent shall promptly follow any such written instructions.
3. Sharing Collections. In the manner described in the
related Indenture Supplement, to the extent that Collections that are
allocated to any Series on a Deposit Date are not needed to make payments to
-28-
Investor Noteholders of such Series or required to be deposited in a Series
Account for such Series on such Deposit Date, such Collections may, at the
direction of the Issuer, be applied to cover principal payments due to or for
the benefit of Investor Noteholders of another Series. Any such reallocation
will not result in a reduction in the Invested Amount of the Series to which
such Collections were initially allocated.
4. Allocations After Certain Events of Default. After
each Outstanding Series of Investor Notes shall have been declared to be
immediately due and payable pursuant to Section 9.2 as a result of the
occurrence of an Event of Default defined in clause (a) or (b) of Section
9.1, to the extent that Collections that are allocated to any Series of
Investor Notes on a Settlement Date are not needed to make payments of
principal of, or interest on, the Investor Notes of such Series, such
Collections shall be applied to cover principal payments due on the Investor
Notes of all other Series then Outstanding on a pro rata basis based on the
Invested Percentages of such other Series of Investor Notes.
[THE REMAINDER OF ARTICLE 5 IS RESERVED AND MAY BE SPECIFIED IN ANY INDENTURE
SUPPLEMENT WITH RESPECT TO ANY SERIES.]
ARTICLE V.
DISTRIBUTIONS
A.Distributions in General.
1. Unless otherwise specified in the applicable Indenture
Supplement, amounts payable to an Investor Noteholder hereunder shall be
payable by check mailed first-class postage prepaid to such Investor
Noteholder at the address for such Investor Noteholder appearing in the Note
Register except that with respect to Investor Notes registered in the name of
a Clearing Agency or its nominee, such amounts shall be payable by wire
transfer of immediately available funds released by the Indenture Trustee or
the Paying Agent from the applicable Series Account no later than Noon on the
Payment Date (New York City time) for credit to the account designated by
such Clearing Agency or its nominee, as applicable.
2. Unless otherwise specified in the applicable
Indenture Supplement (i) all distributions to Investor Noteholders of all
classes within a Series of Investor Notes will have the same priority and
(ii) in the event that on any date of determination the amount available to
make payments to the Investor Noteholders of a Series is not sufficient to
pay all sums required to be paid to such Investor Noteholders on such date,
then each class of Investor Noteholders will receive its ratable share (based
-29-
upon the aggregate amount due to such class of Investor Noteholders) of the
aggregate amount available to be distributed in respect of the Investor Notes
of such Series.
B.Optional Repurchase of Investor Notes.
On any Payment Date occurring on or after the date on which
the Invested Amount of any Series or class of such Series is equal to or less
than the Repurchase Amount (if any) for such Series or class set forth in the
Indenture Supplement related to such Series, or at such other time otherwise
provided for in the Indenture Supplement relating to such Series, the Issuer
shall have the option to purchase all Outstanding Investor Notes of such
Series, or class of such Series, at a purchase price (determined after giving
effect to any payment of principal and interest on such Payment Date) equal
to (unless otherwise specified in the related Indenture Supplement) the
Invested Amount of such Series on such Payment Date, plus accrued and unpaid
interest on the unpaid principal balance of the Investor Notes of such Series
(calculated at the Investor Note Rate of such Series) through the day
immediately prior to the date of such purchase plus, if provided for in the
related Indenture Supplement, any premium payable at such time. The Issuer
shall give the Indenture Trustee at least 30 days' prior written notice of
the date on which the Issuer intends to exercise such option to purchase.
Not later than 12:00 noon, New York City time, on such Payment Date, an
amount of the purchase price equal to the Invested Amount of all Investor
Notes of such Series on such Payment Date and the amount of accrued and
unpaid interest with respect to such Investor Notes and any applicable
premium will be deposited into the applicable Series Account for such Series
in immediately available funds. The funds deposited into such Series Account
or distributed to the Paying Agent will be passed through in full to the
Investor Noteholders on such Payment Date.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
The Issuer hereby represents and warrants, for the benefit
of the Indenture Trustee and the Noteholders, as follows as of each Series
Closing Date:
A.Existence and Power.
The Issuer (a) is a special purpose limited liability
company duly formed, validly existing and in good standing under the laws of
the State of Delaware, (b) is duly qualified to do business as a foreign
limited liability company and in good standing under the laws of each
jurisdiction where the character of its property, the nature of its business
-30-
or the performance of its obligations make such qualification necessary, and
(c) has all powers and all governmental licenses, authorizations, consents
and approvals required to carry on its business as now conducted and for
purposes of the transactions contemplated by this Indenture and the other
Transaction Documents.
B.Governmental Authorization.
The execution, delivery and performance by the Issuer of
this Indenture, the related Indenture Supplement and the other Transaction
Documents to which it is a party (a) is within the Issuer's power, has been
duly authorized by all necessary action, (b) requires no action by or in
respect of, or filing with, any governmental body, agency or official which
has not been obtained and (c) does not contravene, or constitute a default
under, any Requirement of Law or any provision of its certificate of
formation or the LLC Agreement or result in the creation or imposition of any
Lien on any of the Issuer Assets, except for Liens created by this Indenture
or the other Transaction Documents. This Indenture and each of the other
Transaction Documents to which the Issuer is a party has been executed and
delivered by a duly authorized officer of the Issuer.
C.Binding Effect.
This Indenture and each other Transaction Document is a
legal, valid and binding obligation of the Issuer enforceable against the
Issuer in accordance with its terms (except as such enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally or by
general equitable principles, whether considered in a proceeding at law or in
equity and by an implied covenant of good faith and fair dealing).
X.Xxxxxxxxx Information; Financial Condition.
All balance sheets, all statements of operations, of
shareholders' equity and of cash flow, and other financial data (other than
projections) which have been or shall hereafter be furnished by the Issuer to
the Indenture Trustee and the Rating Agencies pursuant to Section 4.4 have
been and will be prepared in accordance with GAAP (to the extent applicable)
and do and will present fairly the financial condition of the Issuer as of
the dates thereof and the results of its operations for the periods covered
thereby, subject, in the case of all unaudited statements, to normal year-end
adjustments and lack of footnotes and presentation items.
E.Litigation.
There is no action, suit or proceeding pending against or,
to the knowledge of the Issuer, threatened against or affecting the Issuer
-31-
before any court or arbitrator or any Governmental Authority that could
materially adversely affect the financial position, results of operations,
business, properties, performance, prospects or condition (financial or
otherwise) of the Issuer or which in any manner draws into question the
validity or enforceability of this Indenture, any Indenture Supplement or any
other Transaction Document or the ability of the Issuer to perform its
obligations hereunder or thereunder.
X.Xx ERISA Plan.
The Issuer has not established and does not maintain or
contribute to any Pension Plan that is covered by Title IV of ERISA and will
not do so, as long as any Investor Notes are Outstanding.
X.Xxx Filings and Expenses.
The Issuer has filed all federal, state and local tax
returns and all other tax returns which, to the knowledge of the Issuer, are
required to be filed (whether informational returns or not), and has paid all
taxes due, if any, pursuant to said returns or pursuant to any assessment
received by the Issuer, except such taxes, if any, as are being contested in
good faith and for which adequate reserves have been set aside on its books.
The Issuer has paid all fees and expenses required to be paid by it in
connection with the conduct of its business, the maintenance of its existence
and its qualification as a foreign limited liability company authorized to do
business in each State in which it is required to so qualify.
H.Disclosure.
All certificates, reports, statements, documents and other
information furnished to the Indenture Trustee by or on behalf of the Issuer
pursuant to any provision of this Indenture or any Transaction Document, or
in connection with or pursuant to any amendment or modification of, or waiver
under, this Indenture or any Transaction Document, shall, at the time the
same are so furnished, be complete and correct to the extent necessary to
give the Indenture Trustee true and accurate knowledge of the subject matter
thereof in all material respects, and the furnishing of the same to the
Indenture Trustee shall constitute a representation and warranty by the
Issuer made on the date the same are furnished to the Indenture Trustee to
the effect specified herein.
I.Investment Company Act.
The Issuer is not, and is not controlled by, an "investment
company" within the meaning of, and is not required to register as an
"investment company" under, the Investment Company Act of 1940.
-32-
J.Regulations T, U and X.
The proceeds of the Investor Notes will not be used to
purchase or carry any "margin stock" (as defined or used in the regulations
of the Board of Governors of the Federal Reserve System, including
Regulations T, U and X thereof). The Issuer is not engaged in the business
of extending credit for the purpose of purchasing or carrying any margin
stock.
X.Xx Consent.
No consent, action by or in respect of, approval or other
authorization of, or registration, declaration or filing with, any
Governmental Authority or other Person is required for the valid execution
and delivery of this Indenture or any Indenture Supplement or for the
performance of any of the Issuer's obligations hereunder or thereunder or
under any other Transaction Document other than such consents, approvals,
authorizations, registrations, declarations or filings as shall have been
obtained by the Issuer prior to the Initial Closing Date or as contemplated
in Section 7.13.
L.Solvency.
Both before and after giving effect to the transactions
contemplated by this Indenture and the other Transaction Documents, the
Issuer is solvent within the meaning of the Bankruptcy Code and the Issuer is
not the subject of any voluntary or involuntary case or proceeding seeking
liquidation, reorganization or other relief with respect to itself or its
debts under any bankruptcy or insolvency law and no Insolvency Event has
occurred with respect to the Issuer.
X.Xxxxxxxx Interests.
1. Each of the SUBI Certificates has been duly
registered in the name of the Indenture Trustee and all other action
necessary (including the filing of UCC-1 financing statements) to protect and
perfect the Indenture Trustee's security interest in the Collateral now in
existence and hereafter acquired or created has been duly and effectively
taken.
2. No security agreement, financing statement,
equivalent security or lien instrument or continuation statement listing the
Issuer as debtor covering all or any part of the Collateral is on file or of
record in any jurisdiction, except such as may have been filed, recorded or
made by the Issuer in favor of the Indenture Trustee on behalf of the
Noteholders in connection with this Indenture.
-33-
3. This Indenture constitutes a valid and continuing
Lien on the Collateral in favor of the Indenture Trustee on behalf of the
Noteholders, which Lien will be prior to all other Liens (other than
Permitted Liens), will be enforceable as such as against creditors of and
purchasers from the Issuer in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally or by general equitable principles, whether
considered in a proceeding at law or in equity and by an implied covenant of
good faith and fair dealing. All action necessary to perfect such prior
security interest has been duly taken.
4. Except for a change made pursuant to Section 8.19,
the Issuer's principal place of business and chief executive office shall be
at: 000 Xxx Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxx 00000, and the place where
its records concerning the Collateral are kept is at: 000 Xxxxx Xxxx, Xxxxx
000-00, Xxxxxxxxxx, Xxxxxxxx 00000. The Issuer does not transact, and has
not transacted, business under any other name.
5. All authorizations in this Indenture for the
Indenture Trustee to endorse checks, instruments and securities and to
execute financing statements, continuation statements, security agreements,
and other instruments with respect to the Collateral are powers coupled with
an interest and are irrevocable.
N.Binding Effect of Certain Agreements.
Each of the Origination Trust Documents and the Transfer
Agreement is in full force and effect and there are no outstanding events of
default thereunder nor have events occurred which, with the giving of notice,
the passage of time or both, would constitute such an event of default.
O.Non-Existence of Other Agreements.
1. Other than as permitted by Section 8.23, (i) the Issuer
is not a party to any contract or agreement of any kind or nature and (ii)
the Issuer is not subject to any obligations or liabilities of any kind or
nature in favor of any third party, including, without limitation, Contingent
Obligations.
2. The Issuer has not engaged in any activities since its
formation (other than those incidental to its formation and other appropriate
actions including the proposed purchase of the SUBI Certificates, the
authorization and the issue of the initial Series of Notes, the execution of
the Transaction Documents to which it is a party and the performance of the
activities referred to in or contemplated by such agreements).
-34-
Section P. Compliance with Contractual Obligations and
Laws.
The Issuer is not (i) in violation of the LLC Agreement,
(ii) in violation of any Requirement of Law to which it or its property or
assets may be subject or (iii) in violation of any Contractual Obligation
with respect to the Issuer.
Q.Other Representations.
All representations and warranties of the Issuer made in
each Transaction Document to which it is a party are true and correct and are
repeated herein as though fully set forth herein.
ARTICLE VII.
COVENANTS
A.Payment of Investor Notes.
The Issuer shall pay the principal of (and premium, if any)
and interest on the Investor Notes pursuant to the provisions of this
Indenture and any applicable Indenture Supplement. Principal and interest
shall be considered paid on the date due if the Paying Agent holds on that
date money designated for and sufficient to pay all principal and interest
then due.
B.Maintenance of Office or Agency.
The Issuer will maintain in The City of New York, an office
or agency where Investor Notes may be surrendered for registration of
transfer or exchange. The Issuer hereby initially appoints the Transfer
Agent and Registrar to serve as its agent for the foregoing purposes. The
Issuer will give prompt written notice to the Indenture Trustee of the
location, and of any change in the location, of any such office or agency.
If at any time the 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.
The Issuer may also from time to time designate one or more
other offices or agencies where the Investor Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations. The Issuer will give prompt written notice to the
-35-
Indenture Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Issuer hereby designates the Corporate Trust Office of
the Indenture Trustee as one such office or agency of the Issuer.
C.Payment of Obligations.
The Issuer will pay and discharge, at or before maturity,
all of its respective material obligations and liabilities, including,
without limitation, tax liabilities and other governmental claims, except
where the same may be contested in good faith by appropriate proceedings, and
will maintain, in accordance with GAAP, reserves as appropriate for the
accrual of any of the same.
D.Conduct of Business and Maintenance of Existence.
The Issuer will keep in full effect its existence, rights
and franchises as a limited liability company under the laws of the State of
Delaware and will obtain and preserve its qualification to do business in
each jurisdiction in which the failure to so qualify would have a material
adverse effect on the business and operations of the Issuer or which
qualification shall be necessary to protect the validity and enforceability
of this Indenture, the Investor Notes and any instrument or agreement
included in the Issuer Assets.
E.Compliance with Laws.
The Issuer will comply in all respects with all Requirements
of Law and all applicable laws, ordinances, rules, regulations, and
requirements of Governmental Authorities (including, without limitation,
ERISA and the rules and regulations thereunder) except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings
and where such noncompliance would not materially and adversely affect the
condition, financial or otherwise, operations, performance, properties or
prospects of the Issuer or its ability to carry out the transactions
contemplated in this Indenture and each other Transaction Document; provided,
however, such noncompliance will not result in a Lien (other than a Permitted
Lien) on any Issuer Asset.
F.Inspection of Property, Books and Records.
The Issuer will keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to the Issuer Assets and its business activities in
accordance with GAAP; and will permit the Indenture Trustee to visit and
inspect any of its properties, to examine and make abstracts from any of its
-36-
books and records and to discuss its affairs, finances and accounts with its
officers, directors, employees and independent public accountants, all at
such reasonable times upon reasonable notice and as often as may reasonably
be requested.
G.Compliance with Transaction Documents; Issuer Assets.
1. The Issuer will not take any action and will use its
best efforts not to permit any action to be taken by others that would
release any Person from any of such Person's covenants or obligations under
any instrument or agreement included in the Issuer Assets or that would
result in the amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any such instrument
or agreement, except as expressly provided in this Indenture, any other
Transaction Document or such other instrument or agreement.
2. Promptly upon becoming aware of any default under
any Transaction Document, the Issuer shall give the Indenture Trustee and the
Rating Agencies notice thereof.
3. The Issuer will punctually perform and observe all of
its obligations and agreements contained in this Indenture, the other
Transaction Documents and in the instruments and agreements included in the
Issuer Assets, including but not limited to preparing (or causing to be
prepared) and filing (or causing to be filed) all UCC financing statements
and continuation statements required to be filed by the terms of this
Indenture and the Transfer Agreement in accordance with and within the time
periods provided for herein and therein.
4. Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or the
rights of the Indenture Trustee hereunder, the Issuer agrees that, unless
such action is specifically permitted hereunder or under the other
Transaction Documents, it will not, without the prior written consent of the
Indenture Trustee or the Holders of a Majority in Interest of each Series of
Outstanding Notes, amend, modify, waive, supplement, terminate or surrender,
or agree to any amendment, modification, supplement, termination, waiver or
surrender of, the terms of any of the Issuer Assets, including any of the
Transaction Documents, or waive timely performance or observance by SPV under
the Transfer Agreement or the Origination Trust, VMS or the Servicer under
the Origination Trust Documents. Upon the occurrence of a Servicer
Termination Event, the Issuer will not, without the prior written consent of
the Indenture Trustee or the Holders of a Majority in Interest of each Series
of Outstanding Notes, terminate the Servicer and appoint a successor Servicer
in accordance with the Servicing Agreement and will terminate the Servicer
and appoint a successor Servicer in accordance with the Servicing Agreement
-37-
if so directed by the Indenture Trustee or the Holders of a Majority in
Interest of each Series of Outstanding Notes.
5. 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 to assist the
Issuer in performing its duties under this Indenture.
H.Notice of Defaults.
Promptly upon becoming aware of any Potential Amortization
Event, Amortization Event, Potential Termination Event, Termination Event,
Servicer Termination Event, Event of Default or Default under any of the
Transaction Documents, the Issuer shall give the Indenture Trustee and the
Rating Agencies written notice thereof, together with an Officer's
Certificate, setting forth the details thereof and any action with respect
thereto taken or contemplated to be taken by the Issuer.
I.Notice of Material Proceedings.
Promptly upon becoming aware thereof, the Issuer shall give
the Indenture Trustee and the Rating Agencies written notice of the
commencement or existence of any proceeding by or before any Governmental
Authority against or affecting the Issuer which is reasonably likely to have
a material adverse effect on the business, condition (financial or
otherwise), results of operations, properties or performance of the Issuer or
the ability of the Issuer to perform its obligations under this Indenture or
under any other Transaction Document to which it is a party.
J.Further Requests.
The Issuer will promptly furnish to the Indenture Trustee
and the Rating Agencies such other information as, and in such form as, the
Indenture Trustee or the Rating Agencies may reasonably request in connection
with the transactions contemplated hereby.
X.Xxxxxxxxxx of Issuer Assets.
The Issuer will from time to time prepare (or shall cause to
be prepared), execute and deliver all such supplements and amendments hereto
and all such financing statements, continuation statements, instruments of
further assurance and other instruments, and will take such other action
necessary or advisable to:
-38-
1. maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively
the purposes hereof;
2. perfect, publish notice of or protect the validity of
the lien and security interest created by this Indenture;
3. enforce the rights of the Indenture Trustee and the
Noteholders in any of the Issuer Assets; or
4. preserve and defend title to the Issuer Assets and the
rights of the Indenture Trustee and the Noteholders in such Issuer
Assets against the claims of all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent
and attorney-in-fact to execute any financing statement, continuation
statement or other instrument required to be filed by the Indenture Trustee
pursuant to this Section.
L.Annual Opinion of Counsel.
On or before March 31 of each calendar year, commencing with
March 31, 2000, the Issuer shall furnish to the Indenture Trustee an Opinion
of Counsel either stating that, in the opinion of such counsel, such action
has been taken with respect to the recording, filing, re-recording and
refiling of this Indenture, any indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of any
financing statements and continuation statements as are necessary to maintain
the perfection of the lien and security interest created by this Indenture
and reciting the details of such action or stating that in the opinion of
such counsel no such action is necessary to maintain the perfection of such
lien and security interest. Such Opinion of Counsel shall also describe the
recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents and the
execution and filing of any financing statements and continuation statements
that will, in the opinion of such counsel, be required to maintain the
perfection of the lien and security interest of this Indenture until March 31
in the following calendar year.
M.Liens.
The Issuer will not create, incur, assume or permit to exist
any Lien upon any of the Issuer Assets (including the Collateral), other than
Permitted Liens.
N.Other Indebtedness.
-39-
The Issuer will not create, assume, incur, suffer to exist
or otherwise become or remain liable in respect of any Indebtedness other
than (i) Indebtedness hereunder and (ii) Indebtedness permitted under any
other Transaction Document.
O.Mergers.
The Issuer will not merge or consolidate with or into any
other Person.
P.Sales of Issuer Assets.
The Issuer will not sell, lease, transfer, liquidate or
otherwise dispose of any Issuer Assets, except as contemplated by the
Transaction Documents unless directed to do so by the Indenture Trustee.
Q.Acquisition of Assets.
The Issuer will not acquire, by long-term or operating lease
or otherwise, any assets except in accordance with the terms of the
Transaction Documents.
R.Distributions.
The Issuer will not declare any dividends on any of the
Membership Interests or make any purchase, redemption or other acquisition
of, any of the Membership Interests, other than as provided in the
Transaction Documents. The Issuer will not redeem any Preferred Membership
Interests if any such redemption would result in the occurrence of an
Amortization Event with respect to any Series of Investor Notes Outstanding.
X.Xxxx; Principal Office.
The Issuer will neither (a) change the location of its chief
executive office or principal place of business (within the meaning of the
applicable UCC) without sixty (60) days' prior written notice to the
Indenture Trustee nor (b) change its name without prior written notice to the
Indenture Trustee sufficient to allow the Indenture Trustee to execute all
filings prepared by the Issuer (including filings of financing statements on
form UCC-1) and recordings necessary to maintain the perfection of the
interest of the Indenture Trustee on behalf of the Noteholders in the
Collateral pursuant to this Indenture. In the event that the Issuer desires
to so change its office or change its name, the Issuer will make any required
filings and prior to actually changing its office or its name the Issuer will
deliver to the Indenture Trustee (i) an Officer's Certificate and (except
with respect to a change of the location of the Issuer's chief executive
office or principal place of business to a new location in the same county)
-40-
an Opinion of Counsel confirming that all required filings have been made to
continue the perfected interest of the Indenture Trustee on behalf of the
Noteholders in the Collateral in respect of the new office or new name of the
Issuer and (ii) copies of all such required filings with the filing
information duly noted thereon by the office in which such filings were made.
T.Organizational Documents.
The Issuer will not amend the LLC Agreement unless, prior to
such amendment, each Rating Agency confirms that after such amendment the
Rating Agency Condition will be met.
X.Xxxxxxxxxxx.
The Issuer will not make, incur, or suffer to exist any
loan, advance, extension of credit or other investment in any Person other
than in accordance with the Transaction Documents and, in addition, without
limiting the generality of the foregoing, the Issuer will not cause the
Indenture Trustee to make any Permitted Investments on the Issuer's behalf
that would have the effect of causing the Issuer to be an "investment
company" within the meaning of the Investment Company Act.
X.Xx Other Agreements.
The Issuer will not enter into or be a party to any
agreement or instrument other than any Transaction Document or documents and
agreements incidental thereto.
W.Other Business.
The Issuer will not engage in any business or enterprise or
enter into any transaction other than acquiring the SUBI Certificates
pursuant to the Transfer Agreement, funding such acquisitions through the
issuance and sale of the Investor Notes, issuing the Membership Interests
pursuant to the LLC Agreement, incurring and paying ordinary course operating
expenses and other activities related to or incidental to any of the
foregoing.
X.Maintenance of Separate Existence.
The Issuer will do all things necessary to continue to be
readily distinguishable from VMS, ARAC and the Affiliates of each of the
foregoing and maintain its existence separate and apart from that of VMS,
ARAC and the Affiliates of each of the foregoing including, without
limitation:
-41-
a. practicing and adhering to organizational
formalities, such as maintaining appropriate books and records;
b. observing all organizational formalities in
connection with all dealings between itself and VMS, ARAC and the
Affiliates of each of the foregoing or any other unaffiliated entity;
c. observing all procedures required by its certificate
of formation and the LLC Agreement and the laws of the State of
Delaware;
d. acting solely in its name and through its duly
authorized officers or agents in the conduct of its businesses;
e. managing its business and affairs by or under the
direction of the Managers;
f. ensuring that its Authorized Officers duly authorize
all of its actions;
g. ensuring the receipt of proper authorization, when
necessary, in accordance with the terms of the LLC Agreement for its
actions;
h. owning or leasing (including through shared
arrangements with Affiliates) all office furniture and equipment
necessary to operate its business;
i. maintaining at least one Manager who is an
Independent Manager;
j. not (A) having or incurring any indebtedness to VMS,
ARAC or any Affiliates of VMS or ARAC; (B) guaranteeing or otherwise
becoming liable for any obligations of VMS, ARAC or any Affiliates of
VMS or ARAC; (C) having obligations guaranteed by VMS, ARAC or any
Affiliates of VMS or ARAC; (D) holding itself out as responsible for
debts of VMS, ARAC or any Affiliates of VMS or ARAC or for decisions
or actions with respect to the affairs of VMS, ARAC or any Affiliates
of VMS or ARAC; (E) operating or purporting to operate as an
integrated, single economic unit with respect to VMS or ARAC or any
Affiliates of VMS or ARAC or any other unaffiliated entity; (F)
seeking to obtain credit or incur any obligation to any third party
based upon the assets of VMS or ARAC or any Affiliates of VMS or ARAC
or any other unaffiliated entity; (G) induce any such third party to
reasonably rely on the creditworthiness of VMS or ARAC or any
Affiliates of VMS or ARAC or any other unaffiliated entity; and (H)
-42-
being directly or indirectly named as a direct or contingent
beneficiary or loss payee on any insurance policy of VMS, ARAC or any
Affiliates of VMS or ARAC other than as required by the Transaction
Documents with respect to insurance on the Leased Vehicles;
k. other than as provided in the Transaction Documents,
maintaining its deposit and other bank accounts and all of its assets
separate from those of any other Person;
l. maintaining its financial records separate and apart
from those of any other Person;
m. not suggesting in any way, within its financial
statements, that its assets are available to pay the claims of
creditors of VMS, ARAC, any Affiliates of VMS or ARAC or any other
affiliated or unaffiliated entity;
n. compensating all its employees, officers,
consultants and agents for services provided to it by such Persons
out of its own funds or reimbursing any of its Affiliates in respect
of amounts paid by such Affiliates for such services;
o. maintaining office space separate and apart from
that of VMS or ARAC or any Affiliates of VMS or ARAC (even if such
office space is subleased from or is on or near premises occupied by
VMS, ARAC or any Affiliates of VMS or ARAC) and a telephone number
separate and apart from that of VMS or ARAC or any Affiliates of VMS
or ARAC;
p. conducting all oral and written communications,
including, without limitation, letters, invoices, purchase orders,
contracts, statements, and applications solely in its own name;
q. having separate stationery from VMS, ARAC, any
Affiliates of VMS or ARAC or any other unaffiliated entity;
r. accounting for and managing all of its liabilities
separately from those of VMS, ARAC or any Affiliates of VMS or ARAC;
s. allocating, on an arm's length basis, all shared
corporate operating services, leases and expenses, including, without
limitation, those associated with the services of shared consultants
and agents and shared computer and other office equipment and
software; and otherwise maintaining an arm's-length relationship with
each of VMS, ARAC, any Affiliates of VMS or ARAC or any other
unaffiliated entity;
-43-
t. refraining from filing or otherwise initiating or
supporting the filing of a motion in any bankruptcy or other
insolvency proceeding involving VMS, ARAC or any Affiliate of VMS or
ARAC to substantively consolidate VMS, ARAC or any Affiliate of VMS
or ARAC with the Issuer;
u. remaining solvent; and
v. conducting all of its business (whether written or
oral) solely in its own name so as not to mislead others as to the
identity of each of the Issuer, SPV, VMS, ARAC and any Affiliates of
VMS or ARAC.
Y.Use of Proceeds of Investor Notes.
The Issuer shall use the net proceeds of each Series of
Investor Notes in accordance with the provisions of the related Indenture
Supplement.
Section Z. No ERISA Plan.
The Issuer will not establish or maintain or contribute to
any Pension Plan that is covered by Title IV of ERISA.
ARTICLE VIII.
REMEDIES
X.Xxxxxx of Default.
"Event of Default", wherever used herein, with respect to
any Series of Investor Notes, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
1. default in the payment of any interest on any Investor
Note of any Series when the same becomes due and payable, and such
default shall continue for a period of five Business Days;
2. default in the payment of the principal of any Investor
Note of any Series on the Series Termination Date with respect to
such Series;
-44-
3. 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) which
default materially and adversely affects the rights of the Investor
Noteholders of such Series, and which default shall continue or not
be cured for a period of 30 days (or for such longer period, not in
excess of 60 days, as may be reasonably necessary to remedy such
default; provided that such default is capable of remedy within 60
days or less and the Issuer delivers an Officer's Certificate to the
Indenture Trustee to the effect that the Issuer has commenced, or
will promptly commence and diligently pursue, all reasonable efforts
to remedy such default) 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 Investor Noteholders of
such Series holding Investor Notes evidencing at least 25% of the
Invested Amount of each Class of Investor Notes of such Series, a
written notice specifying such default and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder;
4. the Issuer at any time receives a final determination
that it will be treated as an association taxable as a corporation
for federal income tax purposes;
5. the Securities and Exchange Commission or other
regulatory body having jurisdiction reaches a final determination
that the Issuer is an "investment company" within the meaning of the
Investment Company Act; or
6. an Insolvency Event shall have occurred with respect to
the Issuer.
B.Acceleration of Maturity; Rescission and Annulment.
If an Event of Default referred to in clause (f) of Section
9.2 has occurred, the unpaid principal amount of all Series of Investor
Notes, together with interest accrued but unpaid thereon, and all other
amounts due to the Investor Noteholders under this Indenture, shall
immediately and without further act become due and payable. If an Event of
Default referred to in clause (a), (b), (d) or (e) of Section 9.1 has
occurred, then the Indenture Trustee or the Holders of a Majority in Interest
of each Series of Outstanding Investor Notes may declare all of the Investor
Notes to be immediately due and payable, by a notice in writing to the Issuer
(and to the Indenture Trustee if given by the Investor Noteholders), and upon
any such declaration the unpaid principal amount of the Investor Notes,
together with accrued and unpaid interest thereon through the date of
-45-
acceleration, shall become immediately due and payable. If an Event of
Default referred to in clause (c) of Section 9.1 shall occur and be
continuing with respect to any Series of Investor Notes, then and in every
such case the Indenture Trustee or Holders of a Majority in Interest of such
Series of Investor Notes may declare all the Investor Notes of such Series to
be immediately due and payable, by a notice in writing to the Issuer (and to
the Indenture Trustee if given by the Investor Noteholders), and upon any
such declaration the unpaid principal amount of such Investor Notes, together
with accrued and unpaid interest thereon through the date of acceleration,
shall become immediately due and payable.
At any time after such declaration of acceleration of
maturity has been made with respect to the Investor Notes (or a particular
Series of Investor Notes) and before a judgment or decree for payment of the
money due has been obtained by the Indenture Trustee as hereinafter in this
Article 9, provided, the Holders of a Majority in Interest of each Series of
Outstanding Investor Notes (or, in the case of the acceleration of a
particular Series of Investor Notes, the Holders of a Majority in Interest of
the Investor Notes of such Series), by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its
consequences; provided, that, no such rescission shall affect any subsequent
default or impair any right consequent thereto.
C.Collection of Indebtedness and Suits for Enforcement by the Indenture
Trustee.
1. The Issuer covenants that if (i) default is made in the
payment of any interest on any Investor Note when the same becomes due and
payable, and such default continues for a period of five Business Days or
(ii) default is made in the payment of the principal of any Investor Note
when the same becomes due and payable, by acceleration or at stated maturity,
the Issuer will, upon demand of the Indenture Trustee, pay to it, for the
benefit of the Holders of such Investor Notes, the whole amount then due and
payable on such Investor Notes for principal and interest, with interest upon
the overdue principal, and, to the extent payment at such rate of interest
shall be legally enforceable, upon overdue installments of interest, at the
Note Rate borne by the Investor Notes, and in addition thereto such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances
of the Indenture Trustee and its agents and counsel.
2. In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as
trustee of an express trust, may 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 Investor Notes and collect in the manner provided by law out of the
-46-
property of the Issuer or other obligor upon such Investor Notes, wherever
situated, the moneys adjudged or decreed to be payable.
3. If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 9.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Investor 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.
4. In case there shall be pending, relative to the Issuer
or any other obligor upon the Investor Notes or any Person having or claiming
an ownership interest in the Issuer Assets, proceedings under the Bankruptcy
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 the case of any other comparable judicial
proceedings relative to the Issuer or other obligor upon the Investor Notes,
or to the creditors or property of the Issuer or such other obligor, the
Indenture Trustee, irrespective of whether the principal of any Investor
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:
a. to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Investor
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 made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of
negligence, bad faith or willful misconduct) and of the Investor
Noteholders allowed in such proceedings;
b. unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Investor Notes in any election
of a trustee, a standby trustee or person performing similar
functions in any such proceedings;
-47-
c. to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all
amounts received with respect to the claims of the Investor
Noteholders and of the Indenture Trustee on their behalf; and
d. 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 Holders of the Investor Notes
allowed in any judicial proceedings relative to the Issuer, its
creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such proceeding is hereby authorized by each of such Investor Noteholders
to make payments to the Indenture Trustee, and, in the event that the
Indenture Trustee shall consent to the making of payments directly to such
Investor 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
made, by the Indenture Trustee and each predecessor Indenture Trustee except
as a result of negligence or bad faith.
5. 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 Investor Noteholder any plan of
reorganization, arrangement, adjustment or composition affecting the Investor
Notes or the rights of any Holder thereof or to authorize the Indenture
Trustee to vote in respect of the claim of any Investor Noteholder in any
such proceeding except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar person.
6. All rights of action and of asserting claims under
this Indenture, or under any of the Investor Notes, may be enforced by the
Indenture Trustee without the possession of any of the Investor Notes or the
production thereof in any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Indenture Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and
compensation of the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents and attorneys, shall be for the ratable benefit of
the Holders of the Investor Notes.
7. 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 Holders of the Investor
-48-
Notes, and it shall not be necessary to make any Investor Noteholder a party
to any such proceedings.
D.Remedies; Priorities.
1. If an Event of Default shall have occurred and be
continuing with respect to any Series of Outstanding Investor Notes and such
Series of Investor Notes has been accelerated under Section 9.4, the
Indenture Trustee may institute proceedings to enforce the obligations of the
Issuer hereunder in its own name and as trustee of an express trust for the
collection of all amounts then payable on the Investor Notes of such Series
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 Investor Notes moneys adjudged due.
2. If an Event of Default shall have occurred and be
continuing with respect to all Series of Outstanding Investor Notes and all
Series of Outstanding Investor Notes have been accelerated under Section 9.2,
the Indenture Trustee (subject to Section 9.5) may do one or more of the
following:
a. institute proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to the
Issuer Assets;
b. exercise any remedies of a secured party under the
UCC and take any other appropriate action to protect and enforce the
rights and remedies of the Indenture Trustee and the Holders of the
Investor Notes; and
c. in the case of an Event of Default referred to in
clause (a) or (b) of Section 9.1, sell the Issuer Assets 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 that the Indenture Trustee may not sell or otherwise liquidate the
Issuer Assets following an Event of Default referred to in clause (a) or (b)
of Section 9.1, unless (A) the Holders of Investor Notes representing 100% of
the Aggregate Invested Amount consent thereto, (B) the proceeds of such sale
or liquidation distributable to the Investor Noteholders are sufficient to
discharge in full all amounts then due and unpaid upon the Investor Notes for
principal and interest, or (C) (1) the Indenture Trustee determines that the
Issuer Assets will not continue to provide sufficient funds for the payment
of principal of and interest on the Investor Notes as they would have become
due if the Investor Notes had not been declared due and payable and (2) the
Indenture Trustee obtains the consent of a Majority in Interest of the
Holders of each Series of Outstanding Investor Notes. In determining such
-49-
sufficiency or insufficiency with respect to clause (B) and (C), the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation as
to the feasibility of such proposed action and as to the sufficiency of the
Issuer Assets for such purpose.
3. If the Indenture Trustee collects any money or
property pursuant to this Article 9, such money or property shall be held by
the Indenture Trustee as additional collateral hereunder and the Indenture
Trustee shall pay out such money or property in the following order:
FIRST: to the Indenture Trustee for amounts due under
Section 10.6; and
SECOND: to the Collection Account for distribution in
accordance with the provisions of Article 5.
E.Optional Preservation of the Issuer Assets.
If the Investor Notes of each Series Outstanding have been
declared to be due and payable under Section 9.2 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to maintain
possession of the Issuer Assets. It is the desire of the parties hereto and
the Investor Noteholders that there be at all times sufficient funds for the
payment of principal of and interest on the Investor Notes, and the Indenture
Trustee shall take such desire into account when determining whether to
maintain possession of the Issuer Assets. In determining whether to maintain
possession of the Issuer Assets, the Indenture Trustee may, but need not,
obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Issuer Assets for such purpose.
Nothing contained in this Section 9.5 shall be construed to require the
Indenture Trustee to preserve the Issuer Assets securing the Issuer
Obligations if prohibited by applicable law or if the Indenture Trustee is
authorized, directed or permitted to liquidate the Issuer Assets pursuant to
Section 9.4(b).
F.Performance and Enforcement of Certain Obligations.
1. Promptly following a request from the Indenture Trustee
to do so and at the Administrator's expense, the Issuer agrees to take all
such lawful action as the Indenture Trustee may request to compel or secure
the performance and observance by SPV, the Origination Trust and the
Servicer, as applicable, of each of their respective obligations to the
Issuer under or in connection with the Transfer Agreement and the Origination
Trust Documents, respectively, in accordance with their respective terms, and
-50-
to exercise any and all rights, remedies, powers and privileges lawfully
available to the Issuer under or in connection with the Transaction Documents
to the extent and in the manner directed by the Indenture Trustee, including
the transmission of notices of default on the part of SPV, the Origination
Trust or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by SPV,
the Origination Trust or the Servicer of each of their respective obligations
thereunder.
2. If an Event of Default has occurred and is continuing
with respect to any Series of Outstanding Investor Notes, the Indenture
Trustee may, and, at the direction (which direction shall be in writing) of
the Holders of a Majority in Interest of such Series of Outstanding Investor
Notes (or, if an Event of Default with respect to more than one Series of
Investor Notes has occurred, a Majority in Interest of each Series of
Investor Notes with respect to which an Event of Default shall have occurred)
shall exercise all rights, remedies, powers, privileges and claims of the
Issuer against SPV, the Origination Trust or the Servicer under or in
connection with the Transfer Agreement and the Origination Trust Documents,
including the right or power to take any action to compel or secure
performance or observance by SPV, the Origination Trust or the Servicer of
each of their respective obligations to the Issuer thereunder and to give any
consent, request, notice, direction, approval, extension or waiver under the
Transfer Agreement and the Origination Trust Documents, and any right of the
Issuer to take such action shall be suspended; provided that, if an Event of
Default has occurred and is continuing with respect to less than all Series
of Outstanding Investor Notes, the Indenture Trustee may not take any action
hereunder that is detrimental to the rights of the Holders of the Investor
Notes with respect to which no Event of Default shall have occurred.
G.Limitation on Suits.
No Holder of any Investor 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:
1. such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
2. Holders of each Series of Outstanding Investor Notes
holding Investor Notes evidencing at least 25% of each Class of
Investor Notes of such Series have made written request to the
Indenture Trustee to institute such proceeding in respect of such
Event of Default in its own name as the Indenture Trustee hereunder;
-51-
3. such Holder or Holders have offered to the Indenture
Trustee indemnity reasonably satisfactory to it against the costs,
expenses and liabilities to be incurred in complying with such
request;
4. the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute
such proceedings; and
5. no direction inconsistent with such written request has
been given to the Indenture Trustee during such 60-day period by the
Holders of a Majority in Interest of each Series of Outstanding
Investor Notes;
it being understood and intended that no one or more Holders of the Investor
Notes 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 Holders of the Investor Notes or to obtain or to seek
to obtain priority or preference over any other Holders or to enforce any
right under this Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Holders of
Investor Notes, each representing less than a Majority in Interest of each
Series of Outstanding Investor Notes, the Indenture Trustee shall act at the
direction of the group of Holders of Investor Notes with the greater amount
of Investor Notes, however, should the Indenture Trustee receive conflicting
or inconsistent requests on indemnity from two or more groups of Holders with
an equal amount of Investor Notes the Indenture Trustee in its sole
discretion may determine what action, if any, shall be taken, notwithstanding
any other provisions of this Indenture.
H.Unconditional Rights of Investor Noteholders to Receive Principal and
Interest. Notwithstanding any other provisions in this Indenture, the Holder
of any Investor Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any,
on such Investor Note on or after the respective due dates thereof expressed
in such Investor Note or in this Indenture and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
I.Restoration of Rights and Remedies.
If the Indenture Trustee or any Investor Noteholder has
instituted any Proceeding to enforce any right or remedy under this Indenture
and such Proceeding has been discontinued or abandoned for any reason or has
been determined adversely to the Indenture Trustee or to such Investor
-52-
Noteholder, then and in every such case the Issuer, the Indenture Trustee and
the Investor 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 Investor Noteholders shall continue as though no such Proceeding had
been instituted.
J.Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the
Indenture Trustee or to the Investor Noteholders is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
X.Xxxxx or Omission Not a Waiver.
No delay or omission of the Indenture Trustee or any Holder
of any Investor Note to exercise any right or remedy accruing upon any
Default or Event of Default shall impair any such right or remedy or
constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article 9 or by
law to the Indenture Trustee or to the Investor Noteholders may be exercised
from time to time, and as often as may be deemed expedient, by the Indenture
Trustee or by the Investor Noteholders, as the case may be.
L.Control by Investor Noteholders.
The Holders of a Majority in Interest of each Series of
Outstanding Investor Notes 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 Investor Notes or exercising any trust
or power conferred on the Indenture Trustee; provided that
1. such direction shall not be in conflict with any rule of
law or with this Indenture;
2. if an Event of Default is with respect to less than all
Series of Outstanding Investor Notes, then the Indenture Trustee's
rights and remedies shall be limited to the rights and remedies
pertaining only to those Series of Investor Notes with respect to
which such Event of Default has occurred and the Indenture Trustee
shall exercise such rights and remedies at the direction of the
-53-
Holders of a Majority in Interest of all such Series of Investor
Notes;
3. subject to the express terms of Section 9.4, any
direction to the Indenture Trustee to sell or liquidate the Issuer
Assets shall be by the Holders of Investor Notes representing not
less than 100% of the Aggregate Invested Amount;
4. if the conditions set forth in Section 9.5 have been
satisfied and the Indenture Trustee elects to retain the Issuer
Assets pursuant to such Section, then any direction to the Indenture
Trustee by Holders of Investor Notes representing less than 100% of
the Aggregate Invested Amount to sell or liquidate the Issuer Assets
shall be of no force and effect;
5. the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction; and
6. such direction shall be in writing;
provided, further, that, subject to Section 10.1, the Indenture Trustee need
not take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Investor Noteholders not
consenting to such action.
M.Waiver of Past Defaults.
Prior to the declaration of the acceleration of the maturity
of the Investor Notes of any Series as provided in Section 9.2, the Holders
of the Investor Notes of not less than a Majority in Interest of such Series
of Outstanding Investor Notes may, on behalf of all such Holders, waive any
past Default or Event of Default and its consequences except a Default (a) in
payment of principal of or interest on any of the Investor Notes or (b) in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Investor Note. In the case of any
such waiver, the Issuer, the Indenture Trustee and the Holders of the
Investor Notes of such Outstanding Series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Event of
Default arising therefrom shall be deemed to have been cured and not to have
occurred, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
-54-
right consequent thereto. The Issuer shall give prompt written notice of any
waiver to the Rating Agencies.
N.Undertaking for Costs. All parties to this Indenture agree, and each
Holder of any Investor Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Indenture Trustee for any action taken, suffered or
omitted by it as the Indenture Trustee, the filing by any party litigant in
such Proceeding of an undertaking to pay the costs of such Proceeding, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such Proceeding,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to
(a) any suit instituted by the Indenture Trustee, (b) any suit instituted by
any Investor Noteholder or group of Investor Noteholders, in each case
holding in the aggregate more than 10% of the Invested Amount of any Series
of Investor Notes, or (c) any suit instituted by any Investor Noteholder for
the enforcement of the payment of principal of or interest on any Investor
Note on or after the respective due dates expressed in such Investor Note and
in this Indenture.
O.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.
P.Action on Investor Notes.
The Indenture Trustee's right to seek and recover judgment
on the Investor 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 Investor 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 Issuer Assets or upon any of the assets of the Issuer.
-55-
ARTICLE IX.
THE INDENTURE TRUSTEE
A.Duties of the Indenture Trustee.
1. If an Amortization Event or Event of Default has
occurred and is continuing, the Indenture Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
2. The Indenture Trustee, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Indenture Trustee which are
specifically required to be furnished pursuant to any provision of this
Indenture or any of the other Transaction Documents, shall examine them to
determine whether they substantially conform to the requirements of this
Indenture or such other Transaction Document, as the case may be; provided,
however, that the Indenture Trustee shall not be responsible for the content
of any resolution, certificate, statement, opinion, report, document, order
or other instrument furnished by the Servicer, the Administrator or the
Issuer hereunder.
3. Subject to subsection 10.1(a), no provision of this
Indenture shall be construed to relieve the Indenture Trustee from liability
for its own negligent action, its own negligent failure to act or its own bad
faith or wilful misconduct; provided, however, that:
a. the Indenture Trustee shall not be liable for an error
of judgment made in good faith by a Responsible Officer of the
Indenture Trustee, unless it shall be proved that the Indenture
Trustee was negligent in ascertaining the pertinent facts nor shall
the Indenture Trustee be liable with respect to any action it takes
or omits to take in good faith in accordance with this Indenture or
in accordance with a direction received by it pursuant to
Section
9.12 ;
b. the Indenture Trustee shall not be charged with
knowledge of any Event of Default unless a Responsible Officer of the
Indenture Trustee obtains actual knowledge thereof or receives
written notice thereof;
c. the Indenture Trustee shall not be charged with
knowledge of any failure by any Person to comply with its obligations
under the Transaction Documents unless a Responsible Officer of the
-56-
Indenture Trustee obtains actual knowledge of such failure or
receives written notice thereof;
d. prior to the occurrence of an Amortization Event or an
Event of Default, and after the curing of all such Amortization
Events or Events of Default which may have occurred, the duties and
obligations of the Indenture Trustee shall be determined solely by
the express provisions of this Indenture, the Indenture Trustee shall
be obligated to perform only such duties and obligations as are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Indenture
Trustee;
e. anything in this Indenture to the contrary
notwithstanding, in no event shall the Indenture Trustee be liable
for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the
Indenture Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action; and
f. subject to the other provisions of this Indenture and
without limiting the generality of this Section 10.01, the Indenture
Trustee shall have no duty (A) to record, file, or deposit this
Indenture, the Transaction Documents or any agreement referred to
herein or therein or any financing statement or continuation
statement evidencing a security interest, or to maintain any such
recording or filing or depositing or to rerecord, refile, or
redeposit any thereof, (B) to insure the Issuer Assets and (C) to pay
or discharge any tax, assessment, or other governmental charge or any
lien or encumbrance of any kind owing with respect to assessed or
levied against, any part of the Collateral other than from funds
available in the Collection Account.
4. The Indenture Trustee shall not be required 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 there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it, and none of the provisions contained in this
Indenture shall in any event require the Indenture Trustee to perform, or be
responsible for the manner of performance of, any of the obligations of any
Person under any of the Transaction Documents.
5. Except for actions expressly authorized by this
Indenture, the Indenture Trustee shall take no action reasonably likely to
impair the security interests created hereunder in any of the Issuer Assets
-57-
now existing or hereafter created or to impair the value of any of the Issuer
Assets now existing or hereafter created.
6. In the event that the Paying Agent or the Transfer
Agent and Registrar shall fail to perform any obligation, duty or agreement
in the manner or on the day required to be performed by the Paying Agent or
the Transfer Agent and Registrar, as the case may be, under this Indenture,
the Indenture Trustee shall be obligated promptly to perform such obligation,
duty or agreement in the manner so required.
B.Rights of the Indenture Trustee.
Except as otherwise provided by Section 10.1:
1. The Indenture Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting based
upon any document believed by it to be genuine and to have been
signed by or presented by the proper person.
2. The Indenture Trustee may consult with counsel of
its selection and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
3. The Indenture Trustee may act through agents,
custodians and nominees and shall not be liable for any misconduct or
negligence on the part of, or for the supervision of, any such agent,
custodian or nominee so long as such agent, custodian or nominee is
appointed with due care.
4. The Indenture Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes to
be authorized or within its rights or powers conferred upon it by the
Indenture; provided, that the Indenture Trustee's conduct does not
constitute wilful misconduct, negligence or bad faith.
.
5. Prior to the occurrence of an Event of Default and
after the curing of all Events of Default that may have occurred, the
Indenture Trustee shall be under no obligation to institute, conduct
or defend any litigation hereunder or in relation hereto and 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
Holders of the Investor Notes evidencing not less than 25% of the
Invested Amount of any Series of Investor Notes; provided, however,
-58-
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
instituting, conducting or defending any litigation hereunder or in
relation hereto or in the making of such investigation shall be, 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 or payment of such expenses
as a condition precedent to so proceeding. The reasonable expense of
every such examination shall be paid by the Issuer or by the
Administrator at the direction of the Issuer or, if paid by the
Indenture Trustee, shall be reimbursed by the Issuer or by the
Administrator at the direction of the Issuer upon demand.
6. The Indenture Trustee shall not be liable for any
losses or liquidation penalties in connection with Permitted
Investments, unless such losses or liquidation penalties were
incurred through the Indenture Trustee's own willful misconduct,
negligence or bad faith.
7. The Indenture Trustee shall not be liable for the
acts or omissions of any successor to the Indenture Trustee so long
as such acts or omissions were not the result of the negligence, bad
faith or willful misconduct of Chase.
8. The right of the Indenture Trustee to perform any
discretionary act enumerated in this Indenture shall not be construed
as a duty, and the Indenture Trustee shall not be answerable for
other than its negligence or wilful misconduct in the performance of
such act.
9. The Indenture Trustee shall not be required to give
any bond or surety in respect of the execution of the Trust created
hereby or the powers granted hereunder.
C.Indenture Trustee's Disclaimer.
The Indenture Trustee assumes no responsibility for the
correctness of the recitals contained herein and in the Investor Notes (other
than the certificate of authentication on the Investor Notes). Except as set
forth in Section 10.11, the Indenture Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Investor Notes (other
than the certificate of authentication on the Investor Notes) or of any of
the Issuer Assets. The Indenture Trustee shall not be accountable for the
use or application by the Issuer of any of the Investor Notes or of the
proceeds of such Investor Notes, or for the use or application of any funds
paid to the Issuer in respect of the Issuer Assets.
-59-
D.Indenture Trustee May Own Investor Notes.
The Indenture Trustee in its individual or any other
capacity may become the owner or pledgee of Investor Notes with the same
rights as it would have if it were not the Indenture Trustee.
E.Notice of Defaults.
If a Default or an Event of Default or a Potential
Amortization Event or an Amortization Event occurs and is continuing and if
it is either actually known or written notice of the existence thereof has
been delivered to a Responsible Officer of the Indenture Trustee, the
Indenture Trustee shall mail to each Noteholder notice thereof within 45 days
after such knowledge or notice occurs. Except in the case of a Default in
accordance with the provisions of Section 313(c) of the TIA in payment of
principal of or interest on any Investor Note (including payments pursuant to
the mandatory redemption provisions of such Investor Note), the Indenture
Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is
in the interest of the Investor Noteholders.
F.Compensation.
The Issuer shall cause the Administrator pursuant to the
Administration Agreement to pay to the Indenture Trustee from time to time
reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Issuer shall cause the Administrator pursuant to the
Administration Agreement to reimburse the Indenture Trustee for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Indenture Trustee's agents, counsel, accountants and experts.
The Issuer shall cause the Administrator pursuant to the Administration
Agreement to indemnify the Indenture Trustee against any and all loss,
liability or expense (including the reasonable fees of counsel) incurred by
it in connection with the administration of this trust and the performance of
its duties hereunder. The Indenture Trustee shall notify the Issuer and the
Administrator promptly of any claim for which it may seek indemnity;
provided, however, a failure by the Indenture Trustee to promptly notify the
Issuer and the Administrator of a claim for which it may seek indemnity shall
not relieve the Administrator from its obligation to indemnify the Indenture
Trustee.
The Administrator's payment obligations to the Indenture
Trustee pursuant to this Section 10.06 shall survive the resignation or
termination of the Indenture Trustee and the discharge of this Indenture.
-60-
When the Indenture Trustee incurs expenses after the occurrence of a Default
specified in Section 8.1(f) with respect to the Issuer, the expenses are
intended to constitute expenses of administration under the Bankruptcy Code
or any other applicable federal or state bankruptcy, insolvency or similar
law.
G.Eligibility Requirements for Indenture Trustee.
The Indenture Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the United States
or any state thereof authorized under such laws to exercise corporate trust
powers, having a long-term unsecured debt rating of at least "Baa3" by
Moody's and "BBB-" by Standard & Poor's having, in the case of an entity that
is subject to risk-based capital adequacy requirements, risk-based capital of
at least $50,000,000 or, in the case of an entity that is not subject to
risk-based capital adequacy requirements, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority, and shall satisfy the requirements for a trustee
set forth in paragraph (a)(4)(i) of Rule 3a-7 under the Investment Company
Act. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section 10.7, the risk-
based capital or the combined capital and surplus of such corporation, as the
case may be, shall be deemed to be its risk-based capital or combined capital
and surplus as set forth in the most recent report of condition so published.
If this Indenture is qualified under the TIA, the Indenture
Trustee shall at all times satisfy the requirements of TIA Section 310(a) and
the Indenture Trustee shall comply with TIA Section 310(b), including the
optional provision permitted by the second sentence of TIA Section 310(b)(9);
provided that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which other securities of
the Issuer are outstanding if the requirements for such exclusion set forth
in the TIA Section 310(b)(1) are met.
If at any time the Indenture Trustee ceases to be eligible
in accordance with the provisions of this Section 10.7, the Indenture Trustee
shall resign immediately in the manner and with the effect specified in
Section 10.8.
H.Resignation or Removal of Indenture Trustee.
1. The Indenture Trustee may give notice of its intent to
resign at any time by so notifying the Issuer. The Holders of a Majority in
Interest of each Series of Outstanding Investor Notes may remove the
Indenture Trustee by so notifying the Indenture Trustee and may appoint a
-61-
successor Indenture Trustee. The Issuer shall remove the Indenture Trustee
if:
a. the Indenture Trustee fails to comply with Section
10.7 ;
b. the Indenture Trustee is adjudged bankrupt or
insolvent;
c. a receiver or other public officer takes charge of
the Indenture Trustee or its property; or
d. the Indenture Trustee otherwise becomes incapable of
acting.
2. If the Indenture Trustee gives notice of its intent
to resign or is removed or if a vacancy exists in the office of the Indenture
Trustee for any reason (the Indenture Trustee in such event being referred to
herein as the retiring Indenture Trustee), the Issuer shall promptly appoint
a successor Indenture Trustee.
3. A successor Indenture Trustee shall deliver a
written acceptance of its appointment to the retiring Indenture Trustee and
to the Issuer and thereupon the resignation or removal of the 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. The successor
Indenture Trustee shall mail a notice of its succession to Noteholders. The
retiring Indenture Trustee shall promptly transfer all property held by it as
the Indenture Trustee to the successor Indenture Trustee.
4. If a successor Indenture Trustee does not take
office within 60 days after the retiring Indenture Trustee gives notice of
its intent to resign or is removed, the retiring Indenture Trustee, the
Issuer or the Holders of a Majority in Interest of each Series of Outstanding
Investor Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
5. If the Indenture Trustee fails to comply with
Section 10.7, any Investor Noteholder may petition any court of competent
jurisdiction for the removal of the Indenture Trustee and the appointment of
a successor Indenture Trustee.
6. 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
-62-
appointment by the successor Indenture Trustee pursuant to Section 10.8(c)
and payment of all fees and expenses owed to the outgoing Indenture Trustee.
7. Notwithstanding the resignation or removal of the
Indenture Trustee pursuant to this Section, the Issuer's and the
Administrator's obligations under Section 10.6 shall continue for the benefit
of the retiring Indenture Trustee. The Indenture Trustee shall not be liable
for the acts or omissions of any successor Indenture Trustee.
I.Successor Indenture Trustee by Merger.
If the Indenture Trustee consolidates with, merges or
converts into, or transfers all or substantially all its corporate trust
business or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation without any further act shall
be the successor Indenture Trustee. The Indenture Trustee shall provide the
Issuer and the Rating Agencies 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 any of the Investor Notes shall have been
authenticated but not delivered, any such successor to the Indenture Trustee
may adopt the certificate of authentication of any predecessor Indenture
Trustee, and deliver such Investor Notes so authenticated; and in case at
that time any of the Investor Notes shall not have been authenticated, any
successor Indenture Trustee may authenticate such Investor Notes either in
the name of any predecessor Indenture Trustee hereunder or in the name of the
successor Indenture Trustee; and in all such cases such certificate of
authentication shall have the same full force as is provided anywhere in the
Investor Notes or in this Indenture with respect to the certificate of
authentication of the Indenture Trustee.
J.Appointment of Co-Indenture Trustee or Separate Indenture Trustee.
1. Notwithstanding any other provisions of this
Indenture or any Indenture Supplement, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Collateral may at the time be located, the Indenture Trustee shall have the
power and may execute and deliver all instruments to appoint one or more
persons to act as a co-Indenture Trustee or co-Indenture Trustees, or
separate Indenture Trustee or separate Indenture 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 Noteholders, such title to the Collateral, or any
part thereof, and, subject to the other provisions of this Section 10.10,
such powers, duties, obligations, rights and trusts as the Indenture Trustee
may consider necessary or desirable. No co-Indenture Trustee or separate
Indenture Trustee hereunder shall be required to meet the terms of
-63-
eligibility as a successor Indenture Trustee under Section 10.7 and no notice
to Investor Noteholders of the appointment of any co-Indenture Trustee or
separate Indenture Trustee shall be required under Section 10.8. No
co-Indenture Trustee shall be appointed without the consent of the Issuer
unless such appointment is required as a matter of state law or to enable the
Indenture Trustee to perform its functions hereunder.
2. Every separate Indenture Trustee and co-Indenture
Trustee shall, to the extent permitted by law, be appointed and act subject
to the following provisions and conditions:
a. The Investor Notes of each Series shall be
authenticated and delivered solely by the Indenture Trustee
or an authenticating agent appointed by the Indenture
Trustee;
b. 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 Indenture Trustee or
co-Indenture Trustee jointly (it being understood that such
separate Indenture Trustee or co-Indenture 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 Assets or any portion
thereof in any such jurisdiction) shall be exercised and
performed singly by such separate Indenture Trustee or
co-Indenture Trustee, but solely at the direction of the
Indenture Trustee;
c. No Indenture Trustee hereunder shall be
personally liable by reason of any act or omission of any
other Indenture Trustee hereunder;
d. The Indenture Trustee may at any time
accept the resignation of or remove any separate Indenture
Trustee or co-Indenture Trustee; and
e. The Indenture Trustee shall remain
primarily liable for the actions of any co-Indenture
Trustee.
-64-
3. Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate Indenture Trustees and co-Indenture Trustees, as effectively as if
given to each of them. Every instrument appointing any separate Indenture
Trustee or co-Indenture Trustee shall refer to this Indenture and the
conditions of this Article 9. Each separate Indenture Trustee and
co-Indenture 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 any
Indenture Supplement, specifically including every provision of this
Indenture or any Indenture Supplement 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 Issuer.
4. Any separate Indenture Trustee or co-Indenture
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 to this Indenture or any
Indenture Supplement on its behalf and in its name. If any separate
Indenture Trustee or co-Indenture Trustee shall die, become incapable of
acting, resign or be removed, all of its estates, properties, rights,
remedies and trusts shall vest in and be exercised by the Indenture Trustee,
to the extent permitted by law, without the appointment of a new or successor
Indenture Trustee.
5. In connection with the appointment of a co-Indenture
Trustee, the Indenture Trustee may, at any time, at the Indenture Trustee's
sole cost and expense, without notice to the Investor Noteholders, delegate
its duties under this Base Indenture and any Indenture Supplement to any
Person who agrees to conduct such duties in accordance with the terms hereof;
provided, however, that no such delegation shall relieve the Indenture
Trustee of its obligations and responsibilities hereunder with respect to any
such delegated duties.
K.Representations and Warranties of Indenture Trustee.
The Indenture Trustee represents and warrants to the Issuer
and the Noteholders that:
a. The Indenture Trustee is a banking
corporation organized, existing and in good standing under
the laws of the State of New York;
b. The Indenture Trustee has full power,
authority and right to execute, deliver and perform this
-65-
Indenture and any Indenture Supplement issued concurrently
with this Indenture and to authenticate the Investor Notes,
and has taken all necessary action to authorize the
execution, delivery and performance by it of this Indenture
and any Indenture Supplement issued concurrently with this
Indenture and to authenticate the Investor Notes;
c. This Indenture has been duly executed and
delivered by the Indenture Trustee; and
d. The Indenture Trustee meets the
requirements of eligibility as an Indenture Trustee
hereunder set forth in Section 10.7.
L.Preferential Collection of Claims Against the Issuer.
If this Indenture is qualified under the TIA, the Indenture
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b) and an Indenture Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE X.
DISCHARGE OF INDENTURE
A.Termination of the Issuer's Obligations.
1. This Indenture shall cease to be of further effect
(except that the Issuer's obligations under Section 10.6 and the Indenture
Trustee's and Paying Agent's obligations under Section 11.3 shall survive)
when all Outstanding Investor Notes theretofore authenticated and issued have
been delivered (other than destroyed, lost or stolen Investor Notes which
have been replaced or paid) to the Indenture Trustee for cancellation and the
Issuer has paid all sums payable hereunder.
2. In addition, except as may be provided to the
contrary in any Indenture Supplement, the Issuer may terminate all of its
obligations under this Indenture if:
a. The Issuer irrevocably deposits in trust
with the Indenture Trustee or at the option of the Indenture
Trustee, with an Indenture Trustee reasonably satisfactory
to the Indenture Trustee and the Issuer under the terms of
an irrevocable trust agreement in form and substance
satisfactory to the Indenture Trustee, money or U.S.
Government Obligations in an amount sufficient, in the
-66-
opinion of a nationally recognized firm of independent
certified public accountants expressed in a written
certification thereof delivered to the Indenture Trustee, to
pay, when due, principal and interest on the Investor Notes
to maturity or redemption, as the case may be, and to pay
all other sums payable by it hereunder; provided, however,
that (1) the Indenture Trustee of the irrevocable trust
shall have been irrevocably instructed to pay such money or
the proceeds of such U.S. Government Obligations to the
Indenture Trustee and (2) the Indenture Trustee shall have
been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment
of said principal and interest with respect to the Investor
Notes;
b. The Issuer delivers to the Indenture
Trustee an Officer's Certificate stating that all conditions
precedent to satisfaction and discharge of this Indenture
have been complied with, and an Opinion of Counsel to the
same effect; and
c. the Rating Agency Condition is satisfied
with respect to each Series of Outstanding Investor Notes.
Then, this Indenture shall cease to be of further effect (except as provided
in this Section 11.1), and the Indenture Trustee, on demand of the Issuer,
shall execute proper instruments acknowledging confirmation of and discharge
under this Indenture.
3. After such irrevocable deposit made pursuant to
Section 11.1(b) and satisfaction of the other conditions set forth herein,
the Indenture Trustee upon request shall acknowledge in writing the discharge
of the Issuer's obligations under this Indenture except for those surviving
obligations specified above.
In order to have money available on a payment date to pay
principal or interest on the Investor Notes, the U.S. Government Obligations
shall be payable as to principal or interest at least one Business Day before
such payment date in such amounts as will provide the necessary money. U.S.
Government Obligations shall not be callable at the issuer's option.
B.Application of Trust Money.
The Indenture Trustee or a trustee satisfactory to the
Indenture Trustee and the Issuer shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 11.1. The Indenture
Trustee shall apply the deposited money and the money from U.S. Government
-67-
Obligations through the Paying Agent in accordance with this Indenture to the
payment of principal and interest on the Investor Notes.
The provisions of this Section 11.2 shall survive the
expiration or earlier termination of this Indenture.
C.Repayment to the Issuer.
The Indenture Trustee and the Paying Agent shall promptly
pay to the Issuer upon written request any excess money or, pursuant to
Section 2.4, return any Investor Notes held by them at any time.
The provisions of this Section 11.3 shall survive the
expiration or earlier termination of this Indenture.
ARTICLE XI.
AMENDMENTS
A.Without Consent of the Investor Noteholders.
Without the consent of any Investor Noteholder, the Issuer
and the Indenture Trustee, at any time and from time to time, may enter into
one or more Indenture Supplements hereto, in form satisfactory to the
Indenture Trustee, for any of the following purposes, provided that the
Rating Agency Condition is met:
1. to create a new Series of Investor Notes;
2. to add to the covenants of the Issuer for the
benefit of any Investor Noteholders (and if such covenants are to be
for the benefit of less than all Series of Investor Notes, stating
that such covenants are expressly being included solely for the
benefit of such Series) or to surrender any right or power herein
conferred upon the Issuer (provided, however, that the Issuer will
not pursuant to this Section 12.1(b) surrender any right or power it
has under the Transaction Documents);
3. to mortgage, pledge, convey, assign and transfer to
the Indenture Trustee any property or assets as security for the
Investor Notes and to specify the terms and conditions upon which
such property or assets are to be held and dealt with by the
Indenture Trustee and to set forth such other provisions in respect
thereof as may be required by the Indenture or as may, consistent
with the provisions of the Indenture, be deemed appropriate by the
Issuer and the Indenture Trustee, or to correct or amplify the
-68-
description of any such property or assets at any time so mortgaged,
pledged, conveyed and transferred to the Indenture Trustee on behalf
of the Noteholders;
4. to cure any ambiguity, defect, or inconsistency or
to correct or supplement any provision contained herein or in any
Indenture Supplement or in any Investor Notes issued hereunder;
5. to evidence and provide for the acceptance of
appointment hereunder by a successor Indenture Trustee with respect
to the Investor Notes of one or more Series and to add to or change
any of the provisions of the Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder
by more than one Indenture Trustee;
6. to correct or Indenture Supplement any provision
herein which may be inconsistent with any other provision herein or
to make any other provisions with respect to matters or questions
arising under this Indenture; or
7. if this Indenture is required to be qualified under
the TIA, to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA;
provided, however, that, as evidenced by an Opinion of Counsel delivered to
the Indenture Trustee (at the Issuer's expense), such action shall not
adversely affect in any material respect the interests of any Investor
Noteholder. Upon the request of the Issuer, the Indenture Trustee shall join
with the Issuer in the execution of any Indenture Supplement authorized or
permitted by the terms of this Indenture and shall make any further
appropriate agreements and stipulations which may be therein contained, but
the Indenture Trustee shall not be obligated to enter into such Indenture
Supplement which affects its own rights, duties or immunities under this
Indenture or otherwise.
B.With Consent of the Investor Noteholders.
Except as provided in Section 12.1, the provisions of this
Indenture and any Indenture Supplement (unless otherwise provided in such
Indenture Supplement) and each other Transaction Document to which the Issuer
is a party may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to in writing
by the Issuer, the Indenture Trustee and the Holders of a Majority in
Interest of each Series of Outstanding Investor Notes; provided that, if such
-69-
amendment, modification or waiver of or to this Indenture, the Indenture
Supplement with respect to a Series of Investor Notes or any Transaction
Document does not affect the Noteholders of a particular Series of Investor
Notes (as substantiated by an Opinion of Counsel to such effect), then the
consent of the Investor Noteholders of such Series shall not be required to
such amendment, modification or waiver; provided further, that no consent of
Investor Noteholders shall be required to any amendment, modification or
waiver of or to any Transaction Document if such amendment, modification or
waiver does not adversely affect in any material respect the Noteholders of
any Series of Investor Notes (as substantiated by an Opinion of Counsel to
such effect) and provided further that the Rating Agency Condition is
satisfied with respect to each affected Series of Investor Notes.
Notwithstanding the foregoing:
a. any modification of this Section 11.2, any
requirement hereunder that any particular action be taken by
Investor Noteholders holding the relevant percentage in
principal amount of the Investor Notes or any change in the
definition of the terms "Adjusted Aggregate Unit Balance" or
"Asset Deficiency", "Invested Amount", "Invested Percentage"
or any defined term used for the purpose of any such
definitions shall require the consent of each affected
Investor Noteholder; and
b. any amendment, waiver or other modification
that would (a) extend the due date for, or reduce the amount
of any scheduled repayment or prepayment of principal of or
interest on any Investor Note (or reduce the principal
amount of or rate of interest on any Investor Note) shall
require the consent of each affected Investor Noteholder;
(b) approve the assignment or transfer by the Issuer of any
of its rights or obligations hereunder or under any other
Transaction Document to which it is a party except pursuant
to the express terms hereof or thereof shall require the
consent of each Investor Noteholder; (c) release any obligor
under any Transaction Document to which it is a party except
pursuant to the express terms of such Transaction Document
shall require the consent of each Investor Noteholder;
provided, however, that the Liens on Vehicles may be
released as provided in Section 3.5; (d) affect adversely
the interests, rights or obligations of any Investor
Noteholder individually in comparison to any other Investor
Noteholder shall require the consent of such Investor
Noteholder; or (e) amend or otherwise modify any
Amortization Event shall require the consent of each
affected Investor Noteholder.
-70-
C.Indenture Supplements.
Each amendment or other modification to this Indenture or
the Investor Notes shall be set forth in an Indenture Supplement. The
initial effectiveness of each Indenture Supplement shall be subject to the
satisfaction of the Rating Agency Condition. In addition to the manner
provided in Sections 12.1 and 12.2, each Indenture Supplement may be amended
as provided in such Indenture Supplement.
D.Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to
it by an Investor Noteholder of an Investor Note is a continuing consent by
the Investor Noteholder and every subsequent Investor Noteholder of an
Investor Note or portion of an Investor Note that evidences the same debt as
the consenting Investor Noteholder's Investor Note, even if notation of the
consent is not made on any Investor Note. However, any such Investor
Noteholder or subsequent Investor Noteholder may revoke the consent as to his
Investor Note or portion of an Investor Note if the Indenture Trustee
receives written notice of revocation before the date the amendment or waiver
becomes effective. An amendment or waiver becomes effective in accordance
with its terms and thereafter binds every Investor Noteholder. The Issuer
may fix a record date for determining which Investor Noteholders must consent
to such amendment or waiver.
E.Notation on or Exchange of Investor Notes.
The Indenture Trustee may place an appropriate notation
about an amendment or waiver on any Investor Note thereafter authenticated.
The Issuer in exchange for all Investor Notes may issue and the Indenture
Trustee shall authenticate new Investor Notes that reflect the amendment or
waiver. Failure to make the appropriate notation or issue a new Investor
Note shall not affect the validity and effect of-such amendment or waiver.
F.The Indenture Trustee to Sign Amendments, etc.
The Indenture Trustee shall sign any Indenture Supplement
authorized pursuant to this Article 12 if the Indenture Supplement does not
adversely affect the rights, duties, liabilities or immunities of the
Indenture Trustee. If it does, the Indenture Trustee may, but need not, sign
it. In signing such Indenture Supplement, the Indenture Trustee shall be
entitled to receive, if requested, an indemnity reasonably satisfactory to it
and to receive and, subject to Section 10.1, shall be fully protected in
relying upon, an Officer's Certificate and an Opinion of Counsel as
conclusive evidence that such Indenture Supplement is authorized or permitted
by this Indenture and that it will be valid and binding upon the Issuer in
accordance with its terms
-71-
G.Conformity with Trust Indenture Act.
If this Indenture is qualified under the TIA, every
amendment of this Indenture and every supplemental indenture executed
pursuant to this Article 12 shall comply in all respects with the TIA.
ARTICLE XII.
MISCELLANEOUS
A.Compliance Certificates and Opinions.
1. Upon any application or request by the Issuer to the
Indenture Trustee to take any action under any provision of this Indenture,
the Issuer shall furnish to the Indenture Trustee (i) an Officer's
Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with, (ii)
an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, and (iii) if this
Indenture is qualified under the TIA and the TIA so requires, an Independent
Certificate from a firm of certified public accountants or other experts
meeting the applicable requirements of this Section 13.1, 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:
a. a statement that each signatory of such certificate
or opinion has read or has caused to be read such covenant or
condition and the definitions herein relating thereto;
b. a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
c. a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation
as is necessary to enable such signatory to express an informed
opinion as to whether such covenant or condition has been complied
with; and
d. a statement as to whether, in the opinion of each
such signatory such condition or covenant has been complied with.
-72-
2. a. If this Indenture is qualified under the TIA and
the TIA so requires, prior to the deposit of any property or securities with
the Indenture Trustee that is to be made the basis for the release of any
property or securities subject to the Lien of this Indenture, the Issuer
shall, in addition to any obligation imposed in Section 13.1(a) or elsewhere
in this Indenture, furnish to the Indenture Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such certificate as
to the fair value (within 90 days of such deposit) to the Issuer of the
property or securities to be so deposited.
b. 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), the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of all other such
securities made the basis of any such withdrawal or release since the
commencement of the then-current fiscal year of the Issuer, as set
forth in the certificates delivered pursuant to clause (i) and this
clause (ii), is 10% or more of the Aggregate Invested 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 one percent of the Aggregate Invested Amount.
c. If this Indenture is qualified under the TIA and the TIA
so requires, 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.
d. 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), 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
released from the Lien of this Indenture since the commencement of
the then current calendar year, as set forth in the certificates
required by clause (iii) and this clause (iv), equals 10% or more of
the Aggregate Invested Amount, but such certificate need not be
furnished in the case of any release of property or securities if the
fair value thereof as set forth in the related Officer's Certificate
-73-
is less than $25,000 or less than one percent of the then Aggregate
Invested Amount.
e. Notwithstanding any provision of this Section, the
Issuer may (A) collect, liquidate, sell or otherwise dispose of the
Issuer Assets as and to the extent permitted or required by the
Transaction Documents and (B) make cash payments out of the Issuer
Accounts as and to the extent permitted or required by the
Transaction Documents.
B.Forms 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 my certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a
certificate to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate
or opinion is based are erroneous. Any such certificate of an Authorized
Officer or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Servicer, the Seller or the Issuer, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller or the Issuer, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Whenever in this Indenture, in connection with any
application, certificate or report to the Indenture Trustee, it is provided
that the Issuer shall deliver any document (x) as a condition of the granting
of such application, or (y) as evidence of the Issuer's compliance with any
term hereof, it is intended that the truth and accuracy, at the time of the
granting of such application or at the effective date of such certificate or
-74-
report (as the case may be), of the facts and opinions stated in such
document shall in each 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 10.
C.Actions of Noteholders.
1. Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by the Investor Noteholders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Investor
Noteholders in person or by an agent 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,
when required, to the Issuer. 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 conclusive in favor of the Indenture Trustee and the
Issuer, if made in the manner provided in this Section 13.3.
2. The fact and date of the execution by any Investor Note-
holder of any such instrument or writing may be proved in any reasonable
manner which the Indenture Trustee deems sufficient.
3. Any request, demand, authorization, direction, notice,
consent, waiver or other act by an Investor Noteholder shall bind every
Holder of every Investor Note issued upon the registration of transfer there-
of or in exchange therefor or in lieu thereof, in respect of anything done,
or omitted to be done, by the Indenture Trustee or the Issuer in reliance
thereon, regardless of whether notation of such action is made upon such
Investor Note.
4. The Indenture Trustee may require such additional proof
of any matter referred to in this Section 13.3 as it shall deem necessary.
D.Notices.
1. Any notice or communication by the Issuer or the
Indenture Trustee to the other shall be in writing and delivered in person or
mailed by first-class mail (registered or
-75-
certified, return receipt requested), telex, telecopier or overnight air
courier guaranteeing next day delivery, to the other's address:
If to the Issuer:
Greyhound Funding LLC
c/o Global Securitization Services, LLC
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: President
Telecopier No.: (000) 000-0000
with a copy to the Administrator:
PHH Vehicle Management Services, LLC
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
If to the Indenture Trustee:
The Chase Manhattan Bank
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Capital Markets Fiduciary Services, VMS Asset Backed
Notes
Phone: (000) 000-0000
Fax: (000) 000-0000
The Issuer or the Indenture Trustee by notice to the other
may designate additional or different addresses for subsequent notices or
communications; provided, however, the Issuer may not at any time designate
more than a total of three (3) addresses to which notices must be sent in
order to be effective.
Any notice (i) given in person shall be deemed delivered on
the date of delivery of such notice, (ii) given by first class mail shall be
deemed given five (5) days after the date that such notice is mailed, (iii)
delivered by telex or telecopier shall be deemed given on the date of
delivery of such notice, and (iv) delivered by overnight air courier shall be
deemed delivered one Business Day after the date that such notice is
delivered to such overnight courier.
Notwithstanding any provisions of this Indenture to the
contrary, the Indenture Trustee shall have no liability based upon or arising
-76-
from the failure to receive any notice required by or relating to this
Indenture or the Investor Notes.
If the Issuer mails a notice or communication to Investor
Noteholders, it shall mail a copy to the Indenture Trustee at the same time.
Notices required to be given to the Rating Agencies by the
Issuer or the Indenture Trustee shall be in writing, personally delivered or
mailed certified mail, return receipt requested to (i) in the case of
Moody's, at the following address: Xxxxx'x Investors Service, 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (ii) in the case of Standard & Poor's,
at the following address: Standard & Poor's Ratings Service, 00 Xxxxx Xxxxxx
(00xx Xxxxx), Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed
Surveillance Department.
2. Where the Indenture provides for notice to Investor
Noteholders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if sent in writing and mailed,
first-class postage prepaid, to each Investor Noteholder affected by such
event, at its address as it appears in the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed (if any) for
the giving of such notice. In any case where notice to Investor Noteholder
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Investor Noteholder shall affect the
sufficiency of such notice with respect to other Investor Noteholders, and
any notice which is mailed in the manner herein provided shall be
conclusively 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 Investor
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 waiver.
In the case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made that is
satisfactory to the Indenture Trustee shall constitute a sufficient
notification for every purpose hereunder.
E.Conflict with TIA.
If this Indenture is qualified under the TIA and 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.
-77-
If this Indenture is qualified under the TIA, 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.
F.Rules by the Indenture Trustee.
The Indenture Trustee may make reasonable rules for action
by or at a meeting of Investor Noteholders.
G.Duplicate Originals.
The parties may sign any number of copies of this Indenture.
One signed copy is enough to prove this Indenture.
H.Benefits of Indenture.
Except as set forth in an Indenture Supplement, nothing in
this Indenture or in the Investor Notes, expressed or implied, shall give to
any Person, other than the parties hereto and their successors hereunder and
the Holders, any benefit or any legal or equitable right, remedy or claim
under the Indenture.
I.Payment on Business Day.
In any case where any Payment Date, redemption date or
maturity date of any Investor Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture) payment of interest
or principal (and premium, if any), as the case may be, 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 Payment Date, redemption date, or maturity
date; provided, however. that no interest shall accrue for the period from
and after such Payment Date, redemption date, or maturity date, as the case
may be.
J.Governing Law.
THIS INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
K.Severability of Provisions.
If any one or more of the covenants, agreements, provisions
or terms of this Indenture shall for any reason whatsoever be held invalid,
then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of
-78-
this Indenture and shall in no way affect the validity of enforceability of
the other provisions of this Indenture or of the Investor Notes or rights of
the Noteholders thereof.
L.Counterparts.
This Indenture may be executed in two or more counterparts
(and by different parties on separate counterparts), each of which shall be
an original, but all of which together shall constitute one and the same
instrument.
M.Successors.
All agreements of the Issuer in this Indenture and the
Investor Notes shall bind its successor; provided, however, the Issuer may
not assign its obligations or rights under this Indenture or any Transaction
Document. All agreements of the Indenture Trustee in this Indenture shall
bind its successor.
N.Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table, and headings
of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or provisions hereof.
O.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 and
at its expense accompanied by an Opinion of Counsel (which may be counsel to
the Indenture Trustee or any other counsel reasonably acceptable to the
Indenture Trustee) to the effect that such recording is necessary either for
the protection of the Investor Noteholders or any other person secured
hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture or to satisfy any provision of the TIA
(if this Indenture is qualified thereunder).
X.Xx Petition.
The Indenture Trustee, by entering into this Indenture, and
each Investor Noteholder, by accepting an Investor Note, hereby covenant and
agree that they will not at any time (i) institute against the Issuer or join
in any institution against the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any United States Federal or state bankruptcy or similar law in
connection with any obligations relating to the Investor Notes, this
-79-
Indenture or any of the other Transaction Documents or (ii) institute
against, or join any other Person in instituting against, the Origination
Trust, SPV, any other Special Purpose Entity, or any general partner or
single member of any Special Purpose Entity that is a partnership or limited
liability company, respectively, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal
or state bankruptcy or similar law.
Section Q. SUBIs.
The Indenture Trustee, by entering into this Indenture, and
each Investor Noteholder, by accepting an Investor Note, represents, warrants
and covenants that (a) each of the Lease SUBI and the Fleet Receivable SUBI
is a separate series of the Origination Trust as provided in Section
3806(b)(2) of Chapter 38 of Title 12 of the Delaware Code, 12 Del.C.
Section 3801 et seq., (b)(i) the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the Lease
SUBI, the Lease SUBI Portfolio or the Fleet Receivable SUBI shall be
enforceable against the Lease SUBI Portfolio or the Fleet Receivable SUBI
only, as applicable, and not against any other SUBI Portfolio (used in this
Section as defined in the Origination Trust Agreement) or the UTI Portfolio
and (ii) the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to any other SUBI (used in
this Section as defined in the Origination Trust Agreement), any other SUBI
Portfolio, the UTI or the UTI Portfolio shall be enforceable against such
other SUBI Portfolio or the UTI Portfolio only, as applicable, and not
against any other SUBI Assets, (c) except to the extent required by law, UTI
Assets or SUBI Assets with respect to any SUBI (other than the Lease SUBI and
the Fleet Receivable SUBI) shall not be subject to the claims, debts,
liabilities, expenses or obligations arising from or with respect to the
Lease SUBI or Fleet Receivable SUBI, respectively, in respect of such claim,
(d)(i) no creditor or holder of a claim relating to the Lease SUBI, the Fleet
Receivable SUBI or the Lease Receivable SUBI Portfolio shall be entitled to
maintain any action against or recover any assets allocated to the UTI or the
UTI Portfolio or any other SUBI or the assets allocated thereto, and (ii) no
creditor or holder of a claim relating to the UTI, the UTI Portfolio or any
SUBI other than the Lease SUBI or the Fleet Receivable SUBI or any SUBI
Assets other than the Lease SUBI Portfolio or the Fleet Receivables shall be
entitled to maintain any action against or recover any assets allocated to
the Lease SUBI or the Fleet Receivable SUBI, and (e) any purchaser, assignee
or pledgee of an interest in the Lease SUBI, the Lease SUBI Certificate, the
Fleet Receivable SUBI, the Lease SUBI Certificate, the Fleet Receivable SUBI
Certificate, any other SUBI, any other SUBI Certificate (used in this Section
as defined in the Origination Trust Agreement), the UTI or the UTI
Certificate must, prior to or contemporaneously with the grant of any such
assignment, pledge or security interest, (i) give to the Origination Trust a
non-petition covenant substantially similar to that set forth in Section 6.9
-80-
of the Origination Trust Agreement, and (ii) execute an agreement for the
benefit of each holder, assignee or pledgee from time to time of the UTI or
UTI Certificate and any other SUBI or SUBI Certificate to release all claims
to the assets of the Origination Trust allocated to the UTI and each other
SUBI Portfolio and in the event that such release is not given effect, to
fully subordinate all claims it may be deemed to have against the assets of
the Origination Trust allocated to the UTI Portfolio and each other SUBI
Portfolio.
-81-
IN WITNESS WHEREOF, the Indenture Trustee and the Issuer
have caused, this Base Indenture to be duly executed by their respective duly
authorized officers as of the day and year first written above.
GREYHOUND FUNDING, LLC,
as Issuer
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Manager
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By: /s/ Xxxxxxxx Xxxx
Name: Xxxxxxxx Xxxx
Title: Vice President
-82-
SCHEDULE 1
TO THE
BASE INDENTURE
DEFINITIONS LIST
"Accrual Period" means the period from and including a
Settlement Date (or, in the case of the initial Accrual Period, the Initial
Closing Date) to but excluding the succeeding Settlement Date.
"Additional Assignment" is defined in Section 2.2 of the
Transfer Agreement.
"Additional Closing Date" is defined in Section 2.3 of the
Transfer Agreement.
"Additional Units" means any Unit allocated to the Lease
SUBI Portfolio after the Initial Closing Date.
"Adjusted Aggregate Unit Balance" means, as of any date of
determination, an amount equal to the sum of (a) the excess of (i) the
Aggregate Lease Balance over (ii) the Aggregate Lease Adjustment Amount as of
such date, (b) 90% of the excess of (i) the Aggregate Residual Value Amount
over (ii) the Excess Residual Value Amount as of such date and (c) 90% of the
excess of (i) the Aggregate Paid-In Advance Balance over (ii) the Excess
Paid-In Advance Amount as of such date.
"Administration Agreement" means the Administration
Agreement, dated as of the Initial Closing Date, by and among the
Administrator, the Issuer, SPV and the Indenture Trustee, as amended,
modified or supplemented from time to time in accordance with its terms.
"Administrator" means VMS or a successor Administrator under
the Administration Agreement.
"Administrator Fee" is defined in the Administration
Agreement.
"Affiliate" means, with respect to any specified Person,
another Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
the Person specified. For purposes of this definition, "control" means the
power to direct the management and policies of a Person, directly or
indirectly, whether through ownership of voting securities, by contract or
-1-
otherwise; and "controlled" and "controlling" have meanings correlative to
the foregoing.
"Aggregate Invested Amount" means the sum of the Invested
Amounts with respect to all Series of Outstanding Investor Notes.
"Aggregate Invested Percentage" means, with respect to
Collections for any Monthly Period, the sum of the Invested Percentages for
all Series of Outstanding Notes for such Monthly Period.
"Aggregate Lease Adjustment Amount" means, as of any date of
determination, an amount equal to the sum of (a) the Overconcentration Amount
as of such date, (b) the Excess Longer-Term Lease Amount as of such date, (c)
the Excess State Obligor Risk Amount as of such date and (d) the Excess
Consumer Lease Amount as of such date.
"Aggregate Lease Balance" means, as of any date of
determination during an Accrual Period, an amount equal to the sum of the
Lease Balances of each Eligible Lease allocated to the Lease SUBI Portfolio
as of the last day of the Monthly Period immediately preceding the first day
of such Accrual Period.
"Aggregate Net Lease Losses" means, for any Monthly Period,
an amount equal to the excess of the aggregate Lease Balances of all Unit
Leases that became Charged-Off Leases during such Monthly Period over the
aggregate amount of Recoveries received during such Monthly Period.
"Aggregate Paid-In Advance Balance" means, as of any date of
determination during an Accrual Period, an amount equal to the Cost of each
Paid-In Advance Vehicle allocated to the Lease SUBI Portfolio as of the last
day of the Monthly Period immediately preceding the first day of such Accrual
Period (or, if any such Paid-In Advance Vehicle was allocated to the Lease
SUBI Portfolio after the last day of such Monthly Period, the Cost thereof as
of the date such Paid-In Advance Vehicle was allocated to the Lease SUBI
Portfolio).
"Aggregate Residual Value Amount" means, as of any date of
determination during an Accrual Period, an amount equal to the aggregate for
each Unit Vehicle subject to a Closed-End Lease allocated to the Lease SUBI
Portfolio as of the last day of the Monthly Period immediately preceding the
first day of such Accrual Period of the lesser of (a) the Stated Residual
Value of such Unit Vehicle and (b) the Net Book Value of such Unit Vehicle as
of such day.
"Aggregate Unit Balance" means, as of any date of
determination, an amount equal to the sum of (a) the Aggregate Lease Balance,
-2-
(b) the Aggregate Paid-In Advance Balance and (c) the Aggregate Residual
Value Amount as of such date.
"ALG Residual Value" means, with respect to a Leased Vehicle
subject to a Closed-End Lease, an amount equal to the residual percentage of
the manufacturer's suggested retail price of such Leased Vehicle specified in
the ALG Residual Percentage Guide published by Automotive Lease Guide for the
make and model of such Leased Vehicle and the lease term of such Closed-End
Lease.
"Amortization Commencement Date" means, with respect to a
Series of Investor Notes, the date on which an Amortization Event with
respect to such Series is deemed to have occurred pursuant to the related
Indenture Supplement.
"Amortization Event" with respect to each Series of Investor
Notes, is defined in the related Indenture Supplement.
"Amortization Period" means, with respect to any Series of
Investor Notes or any Class within a Series of Investor Notes, the period
following the Revolving Period during which principal is distributed to
Investor Noteholders, which shall be the controlled amortization period, the
principal amortization period, the rapid amortization period, or other
amortization period, in each case as defined with respect to such Series in
the related Indenture Supplement.
"Annual Investor Noteholders' Tax Statement" is defined in
Section 4.4(c) of the Base Indenture.
"Annual Servicing Report" is defined in Section 4.1(a) of
the Base Indenture.
"Applicable Gain on Sale Account Percentage" means, on any
date of determination, the highest Series Gain on Sale Account Percentage
with respect to any Series of Investor Notes Outstanding.
"Applicable Law" means all applicable laws, statutes,
treaties, rules, codes, ordinances, regulations, certificates, orders,
interpretations, licenses and permits of any Governmental Authority from time
to time in effect, and judgments, decrees, injunctions, writs, orders or like
action of any court, arbitrator or other administrative, judicial or quasi-
judicial tribunal or agency of competent jurisdiction (including laws
specifically mandating compliance by property owners).
"Applicants" is defined in Section 2.8 of the Base
Indenture.
-3-
"ARAC" means Avis Rent A Car, Inc., a Delaware corporation.
"Asset Deficiency" means, as of any date of determination,
the amount, if any, by which the Required Aggregate Asset Amount as of such
date exceeds the Adjusted Aggregate Unit Balance as of such date.
"Asset Purchase Agreement" means the Asset Purchase
Agreement, dated as of the Initial Closing Date, among VMS, PHH Consumer
Lease and SPV, as amended, modified or supplemented from time to time in
accordance with its terms.
"Assumed Lease Term" means, with respect to any Yield
Shortfall Lease, the number of months over which the Capitalized Cost of the
related Leased Vehicle is being depreciated thereunder.
"Authorized Officer" means (a) as to the Administrator or
the Servicer, any of the President, any Executive Vice President or any Vice
President of the Administrator or the Servicer, as the case may be, (b) as to
the Issuer, any officer (or agent acting pursuant to a power of attorney) of
the Issuer or of any Manager acting on behalf of the Issuer and who is
identified on the list of Authorized Officers delivered by the Manager to the
Indenture Trustee on the Initial Closing Date (as such list may be modified
or supplemented from time to time thereafter) and (c) as to SPV, any officer
(or agent acting pursuant to a power of attorney) of SPV or of any manager of
SPV acting on behalf of SPV and who is identified on the list of Authorized
Officers delivered by SPV to the Indenture Trustee on the Initial Closing
Date (as such list may be modified or supplemented from time to time
thereafter).
"Bankruptcy Code" means The Bankruptcy Reform Act of 1978,
as amended from time to time, and as codified as 11 U.S.C. Section 101 et
seq.
"Base Indenture" means the Base Indenture, dated as of the
Initial Closing Date, between the Issuer and the Indenture Trustee, as
amended, modified or supplemented from time to time, exclusive of Indenture
Supplements creating new Series of Investor Notes.
"Bearer Notes" is defined in Section 2.1 of the Base
Indenture.
"Bearer Rules" means the provisions of the Internal Revenue
Code, in effect from time to time, governing the treatment of bearer
obligations, including sections 163(f), 871, 881, 1441, 1442 and 4701, and
any regulations thereunder including, to the extent applicable to any Series
of Notes, Proposed or Temporary Regulations.
-4-
"Beneficial Owner" means, with respect to a Book-Entry Note,
the Person who is the beneficial owner of such Book-Entry Note, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Book-Entry Notes" means beneficial interests in the
Investor Notes, ownership and transfers of which shall be evidenced or made
through book entries by a Clearing Agency as described in Section 2.10 of the
Base Indenture; provided that after the occurrence of a condition whereupon
book-entry registration and transfer are no longer permitted and Definitive
Notes are issued to the Beneficial Owners, such Definitive Notes shall
replace Book-Entry Notes.
"Business Day" means any day other than a Saturday, Sunday
or other day on which banks are authorized or required by law to be closed in
New York, Maryland or Delaware.
"Capitalized Cost" means, with respect to any Leased
Vehicle, the amount identified as the "Capitalized Cost" of such Leased
Vehicle, including, to the extent provided therein, delivery charges, taxes
and any registration or titling fees.
"Cedel" means Cedel Bank, societe anonyme.
"Certificated Security" means a "certificated security"
within the meaning of the applicable UCC.
"Certificate of Title" means, with respect to any Leased
Vehicle, the certificate of title or other evidence of ownership of such
Leased Vehicle duly issued by the government department or agency in the
jurisdiction in which such Leased Vehicle is registered in accordance with
the certificate of title act or statute of the jurisdiction applicable to
such Leased Vehicle or, to the extent that a certificate of title or other
evidence of ownership has not been issued, the application (or copy thereof)
for the foregoing.
"Charged-Off Lease" means a Master Lease Agreement or
Consumer Lease that was or should have been charged off by the Servicer as
uncollectible in accordance with the Policies.
"Charged-Off Receivable" means a Fleet Receivable that was
or should have been charged off by the Servicer as uncollectible in
accordance with the Policies.
"Charge-Off Ratio" means, for any specified Settlement Date,
twelve times the quotient, expressed as a percentage, of (a) Aggregate Net
-5-
Lease Losses for the preceding Monthly Period, divided by (b) the Aggregate
Lease Balance as of the last day of the second preceding Monthly Period.
"Chase" means The Chase Manhattan Bank, a New York banking
corporation.
"Class" means, with respect to any Series of Notes, any one
of the classes of Notes of that Series as specified in the related Indenture
Supplement.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency or a Foreign Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency or the Foreign
Clearing Agency.
"Closed-End Lease" means a lease obligation in respect of a
single vehicle which may arise pursuant to a master lease agreement providing
for the lease of a fleet of vehicles or pursuant to a lease agreement
providing for the lease of a single vehicle that, in each case, allows the
lessee thereunder to return the vehicle subject thereto to the lessor at or
prior to lease termination and obligates the lessee thereunder to pay to the
lessor at lease termination only Incidental Lease Termination Charges.
"Closing Date" means the Initial Closing Date or any Series
Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time, and any successor statute
of similar import, in each case as in effect from time to time. References to
sections of the Code also refer to any successor sections.
"Collateral" is defined in Section 3.1 of the Base
Indenture.
"Collection Account" is defined in Section 5.1 of the Base
Indenture.
"Collections" means (a) all payments on the Collateral,
including, without limitation, (i) all monthly lease payments and other lease
payments on the Unit Leases, (ii) all proceeds from the sale or other
disposition of Unit Vehicles, including Recoveries, (iii) all insurance
proceeds and warranty payments with respect to Unit Vehicles, (iv) all
termination payments and Incidental Lease Termination Payments received in
-6-
respect of the Unit Leases, (v) all other payments in respect of the Unit
Leases, (vi) all payments in respect of the Fleet Receivables and payments by
VMS under the Receivable Purchase Agreement, (vii) all payments by VMS or PHH
Consumer Lease under the Asset Sale Agreement and (viii) all payments in
respect of any Hedging Instruments in the Collateral relating to any Series
of Investor Notes, whether such payments are in the form of cash, checks,
wire transfers or other forms of payment and (b) all amounts earned on
Permitted Investments of funds in the Collection Account and, to the extent
so specified in an Indenture Supplement, in a Series Account.
"Common Member" means SPV, as the holder of the Common
Membership Interest.
"Common Membership Interest" means the Common Membership
Interest issued pursuant to the LLC Agreement.
"Consumer Lease" means an Open-End Lease or a Closed-End
Lease originated by PHH Consumer Lease, individually or on behalf of the
Origination Trust, that is in all material respects in a form attached to the
Series 1999-1 SUBI Servicing Supplement.
"Contingent Obligation" as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (a)
with respect to any indebtedness, lease, dividend, letter of credit or other
obligation of another if the primary purpose or intent thereof by the Person
incurring the Contingent Obligation is to provide assurance to the obligee of
such obligation of another that such obligation of another will be paid or
discharged, or that any agreements relating thereto will be complied with, or
that the holders of such obligation will be protected (in whole or in part)
against loss in respect thereof or (b) under any letter of credit issued for
the account of that Person or for which that Person is otherwise liable for
reimbursement thereof. Contingent Obligation shall include (a) the direct or
indirect guarantee, endorsement (otherwise than for collection or deposit in
the ordinary course of business), co-making, discounting with recourse or
sale with recourse by such Person of the obligation of another and (b) any
liability of such Person for the obligations of another through any agreement
(contingent or otherwise) (i) to purchase, repurchase or otherwise acquire
such obligation or any security therefor, or to provide funds for the payment
or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise), (ii) to maintain the
solvency of any balance sheet item, level of income or financial condition of
another or (iii) to make take-or-pay or similar payments if required
regardless of non-performance by any other party or parties to an agreement,
if in the case of any agreement described under subclause (i) or (ii) of this
sentence the primary purpose or intent thereof is as described in the
preceding sentence. The amount of any Contingent Obligation shall be equal to
the amount of the obligation so guaranteed or otherwise supported.
-7-
"Contractual Obligation" means, with respect to any Person,
any provision of any security issued by that Person or of any indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument
to which that Person is a party or by which it or any of its properties is
bound or to which it or any of its properties is subject.
"Control" means (a) with respect to a Security Entitlement,
the Indenture Trustee (i) is identified in the records of the Securities
Intermediary for such Security Entitlement as the person having such Security
Entitlement against such Security Intermediary or (ii) has obtained the
agreement, in writing, of the Securities Intermediary for such Security
Entitlement that it will comply with orders of the Indenture Trustee
regarding the transfer or redemption of such Security Entitlement without
further consent of any other person; or (b) with respect to a United States
Security Entitlement, (i) the Indenture Trustee is a participant in the book
entry system maintained by the Federal Reserve Bank that is acting as a
fiscal agent for the issuer of such United States Security Entitlement and
such Federal Reserve Bank has indicated by book entry that such United States
Securities Entitlement has been credited to the Indenture Trustee's
securities account in such book entry system or (ii) (A) the Indenture
Trustee (x) is identified in the records of the Securities Intermediary for
such United States Security Entitlement as the person having such Security
Entitlement against such Securities Intermediary or (y) has obtained the
agreement, in writing, of the Securities Intermediary for such Security
Entitlement that it will comply with orders of the Indenture Trustee
regarding the transfer or redemption of such Security Entitlement without
further consent of any other person, (B) the Securities Intermediary for such
United States Securities Entitlement is a participant in the book entry
system maintained by the Federal Reserve Bank that is acting as fiscal agent
for the issuer of such United States Securities Entitlement and (C) such
Federal Reserve Bank has indicated by book entry that such United States
Securities Entitlement has been credited to such Securities Intermediary's
securities account in such book entry system.
"Contribution Agreement" means the Contribution Agreement,
dated as of the Initial Closing Date, between SPV and the Origination Trust,
as amended, modified or supplemented from time to time in accordance with its
terms.
"Controlled Group" means, with respect to any Person, such
Person, whether or not incorporated, and any corporation, trade or business
that is, along with such Person, a member of a controlled group of
corporations or a controlled group of trades or businesses, as described in
Sections 414(b) and (c), respectively of the Code.
"Corporate Trust Office" means the principal office of the
Indenture Trustee at which at any particular time its corporate trust
-8-
business shall be administered, which office at the date of the execution of
the Indenture is located at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000-0000, Att: Capital Markets Fiduciary Services - VMS Auto Lease Backed
Securitization.
"Cost" means, with respect to any Paid-In Advance Vehicle,
the price paid for such Vehicle to the dealer, the manufacturer or the vendor
selling such Vehicle, plus delivery charges and taxes and any registration or
titling fees.
"Coupon" is defined in Section 2.1 of the Base Indenture.
"CP Rate" means the rate on commercial paper for each day
set forth in Statistical Release H.15(519), "Selected Interest Rates"
published by the Board Of Governors of the Federal Reserve System.
"Credit Enhancement" means, with respect to any Series of
Investor Notes, the subordination, cash collateral account, collateral
interest, letter of credit, surety bond, insurance policy, spread account,
reserve account, cross-support feature, interest rate swap, currency swap or
any other contract or agreement for the benefit of the holder of the Investor
Notes of such Series as designated in the related Indenture Supplement.
"Custodian Agreement" means the Custodian Agreement, dated
as of the Initial Closing Date, by and among the Custodian, the Servicer and
the Origination Trust, as amended, modified or supplemented from time to time
in accordance with its terms, and any other Custodian Agreement entered into
in accordance with the terms and conditions of the Origination Trust
Servicing Agreement.
"Custodian" means the party named as such in the Custodian
Agreement until a successor replaces it in accordance with the applicable
provisions of the Custodian Agreement and thereafter means the successor
serving thereunder.
"Default" means any occurrence that is, or with notice or
the lapse of time or both would become, an Event of Default.
"Definitions List" means this Definitions List, as amended
or modified from time to time.
"Definitive Notes" is defined in Section 2.10 of the Base
Indenture.
"Delinquency Ratio" means, for any specified Settlement
Date, the quotient, expressed as a percentage, of (a) the aggregate xxxxxxxx
with respect to all Leases and all Fleet Receivables which were unpaid for 60
-9-
days or more from the original due date thereof as of the last day of the
immediately preceding Monthly Period divided by (b) the sum of (i) the
aggregate xxxxxxxx with respect to all Leases and all Fleet Receivables which
were unpaid as of the last day of the second preceding Monthly Period and
(ii) the aggregate amount billed with respect to all Leases and all Fleet
Receivables during the immediately preceding Monthly Period.
"Delivery" means (a) with respect to any Physical Property
(that is not either a United States Security Entitlement or a Security
Entitlement), physical delivery thereof to the Indenture Trustee or its
nominee or custodian by an effective endorsement, or registered in the name
of, the Indenture Trustee or its nominee or custodian endorsed in blank and
(b) with respect to any Uncertificated Security, the issuer thereof registers
the Indenture Trustee as the registered owner thereof or the Indenture
Trustee otherwise satisfies the requirements of Revised Article 8.
"Depository" is defined in Section 2.10 of the Base
Indenture.
"Depository Agreement" means, with respect to a Series
having Book-Entry Notes, the agreement among the Issuer, the Indenture
Trustee and the Clearing Agency or the Foreign Clearing Agency, or as
otherwise provided in the related Indenture Supplement.
"Deposit Date" means each Business Day on which Collections
are deposited into the Collection Account.
"Deposit Report" is defined in Section 4.1 of the Base
Indenture.
"Determination Date" means the second Business Day prior to
each Settlement Date.
"Dividend Rate" means, with respect to each series of
Preferred Membership Interests, the rate at which distributions of interest
with respect to such Preferred Membership Interests are made.
"Dollar" and the symbol "$" mean the lawful currency of the
United States.
"Eligible Consumer Lease" means a Consumer Lease that as of
the date allocated to the Lease SUBI Portfolio satisfied the following
eligibility criteria:
a. it was not a Charged-Off Lease;
b. it was not an Ineligible Delinquent Lease;
-10-
c. it was an obligation of an Eligible Obligor;
d. it had an initial term of 60 months or less;
e. it was denominated and payable only in Dollars in the
United States;
f. it was originated and has been administered since
origination in accordance with Applicable Law;
g. it was originated in accordance with the Policies;
h. it did not contravene in any material respect any
Applicable Law and VMS or PHH Consumer Lease is not in violation in
any material respect of any Applicable Law in connection with it;
i. it was not subject to any dispute in whole or in part or
to any offset, counterclaim, defense, rescission, recoupment or
subordination;
j. it was the legal, valid and binding obligation of the
Obligor thereunder, enforceable against such Obligor to pay the full
amount thereof in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or law);
k. the Origination Trust has only one "original"
counterpart of such Consumer Lease and such original is held by the
Custodian;
l. it is either an Open-End Lease or a Closed-End Lease;
m. it is a "hell or high water" net lease under which the
Obligor's payment obligations thereunder are absolute, unconditional
and noncancellable and not subject to abatement or adjustment;
n. the Obligor thereunder is required to maintain casualty
insurance with respect to the related Leased Vehicle in accordance
with the Policies;
o. any consents, approvals or authorizations necessary for
the assignment and sale thereof by PHH Consumer Lease to SPV and by
SPV to the Origination Trust have been obtained;
-11-
p. if not originated by the Origination Trust, all right,
title and interest in it has been validly sold by PHH Consumer Lease
to SPV pursuant to the Asset Sale Agreement and validly assigned by
SPV to the Origination Trust pursuant to the Contribution Agreement;
q. the Obligor of which has accepted the related Leased
Vehicle;
r. it provides for equal monthly depreciation payments and
accrues a finance or other lease charge on the Net Book Value of the
related Leased Vehicle at a floating rate at least equal to the CP
Rate from time to time or at a fixed rate;
s. if a Closed-End Lease, the Stated Residual Value of the
related Leased Vehicle was no greater than the ALG Residual Value
thereof at origination;
t. if a Fixed Rate Lease, on or before the date on which
such Fixed Rate Lease was allocated to the Lease SUBI Portfolio, the
Issuer held any Lease Rate Cap with respect to such Fixed Rate Lease
required to be held by the Issuer by the terms of any Indenture
Supplement;
u. if a Floating Rate Lease, the Obligor thereunder has no
right to convert the floating rate at which the finance charges
accrue thereunder to a fixed rate; and
v. the Leased Vehicle leased thereunder (x) is free and
clear of all Liens (other than Permitted Liens) and (y) the
Certificate of Title for such Leased Vehicle is registered in the
name of the Origination Trust and indicates only a Lien in the name
of (1) PHH Consumer Lease, in the case of a Consumer Lease originated
by PHH Consumer Lease and assigned to the Origination Trust or a
Consumer Lease originated by the Origination Trust prior to July 15,
1999 or (2) SPV, in the case of all other Consumer Leases (or, such a
Certificate of Title has been applied for).
"Eligible Counterparty" means a financial institution having
on the date of any acquisition of a Hedging Instrument commercial paper or
short-term deposit ratings which are equal to or higher than A-1 by Standard
& Poor's and P-1 by Moody's and unsecured debt ratings which are equal to or
higher than A by Standard & Poor's and A2 by Moody's and who, in the event
that its commercial paper or short-term deposit ratings are reduced below
such ratings, agrees to secure its obligations under such Hedging Instrument.
"Eligible Deposit Account" means (a) a segregated
identifiable trust account established in the trust department of a Qualified
-12-
Trust Institution or (b) a separately identifiable deposit account
established in the deposit taking department of a Qualified Institution.
"Eligible Lease" means a Lease that as of the date allocated
to the Lease SUBI Portfolio was either an Eligible Consumer Lease or a Lease
arising under an Eligible Master Lease that satisfied the following
eligibility criteria:
(a) it had an initial term of 120 months or less;
(b) the Obligor of which has accepted the related Leased
Vehicle;
(c) it provides for equal monthly depreciation payments and
accrues a finance or other lease charge on the Net Book Value of the
related Leased Vehicle at a floating rate at least equal to the CP
Rate from time to time or at a fixed rate;
(d) if a Closed-End Lease, the Stated Residual Value of the
related Leased Vehicle was no greater than the ALG Residual Value
thereof at origination;
(e) if a Fixed Rate Lease, on or before the date on which
such Fixed Rate Lease was allocated to the Lease SUBI Portfolio, the
Issuer held any Lease Rate Cap with respect to such Fixed Rate Lease
required to be held by the terms of any Indenture Supplement;
(f) if a Floating Rate Lease and the Obligor thereunder has
the right to convert the floating rate at which the finance charges
accrue thereunder to a fixed rate, upon conversion the fixed rate
will be at least equal to the sum of the PHH Treasury Note Rate on
the conversion date and 0.50%; and
(h) the Leased Vehicle leased thereunder (x) is free and
clear of all Liens (other than Permitted Liens), (y) if such Leased
Vehicle is subject to a certificate of title act or statute, the
Certificate of Title for such Leased Vehicle is registered in the
name of the Origination Trust and indicates only a Lien in the name
of (1) VMS, in the case of a Lease originated by VMS and assigned to
the Origination Trust or a Lease originated by the Origination Trust
prior to July 15, 1999 or (2) SPV, in the case of all other Leases
(or, such a Certificate of Title has been applied for) or (z) if such
Leased Vehicle is not subject to a certificate of title act or
statute, all filings necessary to evidence the security interest of
(1) VMS, in the case of a Lease originated by VMS and assigned to the
Origination Trust or (2) SPV, in the case of all other Leases, in
such Leased Vehicle have been made in all appropriate jurisdictions.
-13-
"Eligible Master Lease" will mean each Master Lease
Agreement that as of the date the first Lease thereunder was allocated to the
Lease SUBI satisfied the following eligibility criteria:
(a) it was not a Charged-Off Lease;
(b) it was not an Ineligible Delinquent Lease;
(c) it was an obligation of an Eligible Obligor;
(d) it was denominated and payable only in Dollars in the
United States;
(e) it was originated and has been administered since
origination in accordance with Applicable Law;
(f) it was originated in accordance with the Policies;
(g) it did not contravene in any material respect any
Applicable Law and VMS is not in violation in any material respect of
any Applicable Law in connection with it;
(h) it was not subject to any dispute in whole or in part or
to any offset, counterclaim, defense, rescission, recoupment or
subordination;
(i) it was the legal, valid and binding obligation of the
Obligor thereunder, enforceable against such Obligor to pay the full
amount thereof in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or law);
(j) the Origination Trust has only one "original"
counterpart of such Master Lease Agreement and such original is held
by the Custodian;
(k) it is either an Open-End Lease or a Closed-End Lease;
(l) it is a "hell or high water" net lease under which the
Obligor's payment obligations thereunder are absolute, unconditional
and noncancellable and not subject to abatement or adjustment;
(m) the Obligor thereunder is required to maintain casualty
insurance or to self-insure with respect to the related Leased
Vehicles in accordance with the Policies;
-14-
(n) any consents, approvals or authorizations necessary for
the assignment and sale thereof by VMS to the Origination Trust have
been obtained; and
(o) if not originated by the Origination Trust, all right,
title and interest in it has been validly sold to the Origination
Trust by VMS pursuant to that certain Assignment and Assumption
Agreement dated December 17, 1998 or validly assigned to the
Origination Trust by SPV pursuant to the Contribution Agreement and,
if assigned by SPV to the Origination Trust, was validly sold by VMS
to SPV pursuant to the Asset Sale Agreement.
"Eligible Obligor" means each Obligor in respect of a Master
Lease Agreement, a Consumer Lease or a Fleet Receivable that satisfies the
following eligibility criteria:
(a) its billing address is located in the United States;
(b) it is not the United States federal government, or any
subdivision thereof, or any agency, department or instrumentality
thereof;
(c) it is not an Affiliate of ARAC; and
(d) it is not the subject of any voluntary or involuntary
bankruptcy proceeding, unless, in the case of a Master Lease
Agreement, a bankruptcy court shall have entered an order reaffirming
such Obligor's obligations under such Master Lease Agreement.
"Eligible Receivables" means, as of any date of
determination, each Fleet Receivable that satisfies the following eligibility
criteria:
(a) it is an obligation of an Eligible Obligor;
(b) it is not a Charged-Off Receivable;
(c) it is denominated and payable only in Dollars in the
United States;
(d) it and the related Fleet Service Contract do not
contravene in any material respect any Applicable Law and VMS is not
in violation in any material respect of any Applicable Law in
connection with it or the related Fleet Service Contract;
(e) the related Fleet Service Contract was originated in
accordance with the Policies;
-15-
(f) it has been billed, the goods or services giving rise to
it have been provided and it is payable within 45 days of the billing
date;
(g) it is an "eligible asset" within the meaning of Rule
3a-7 promulgated under the Investment Company Act;
(h) it is not subject to the laws of any jurisdiction whose
laws would prohibit the assignment and sale thereof by VMS to SPV
pursuant to the Receivable Purchase Agreement and the contribution
thereof by SPV to the Origination Trust pursuant to the Contribution
Agreement;
(i) any consents, approvals or authorizations necessary for
the assignment and sale thereof by VMS to SPV pursuant to the
Receivable Purchase Agreement and the contribution thereof by SPV to
the Origination Trust pursuant to the Contribution Agreement have
been obtained with respect to such Fleet Receivable;
(j) all right, title and interest in it has been validly
sold by VMS to SPV pursuant to the Receivable Purchase Agreement and
validly assigned by SPV to the Origination Trust pursuant to the
Contribution Agreement;
(k) the Origination Trust has legal and beneficial
ownership therein free and clear of all Liens other than Permitted
Liens;
(l) it is not subject to any dispute in whole or in part or
to any offset, counterclaim, defense, rescission, recoupment or
subordination;
(m) it is at all times the legal, valid and binding
obligation of the Obligor thereon, enforceable against such Obligor
to pay the full amount thereof in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or
law); and
(n) it constitutes an "account" or a "general intangible"
under the applicable UCC.
"Enhancement Provider" means, with respect to any Series,
the Person, if any, designated as such in the related Indenture Supplement.
-16-
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import, in each case
as in effect from time to time. References to sections of ERISA also refer to
any successor sections.
"Euroclear" means Euroclear System.
"Event of Default" is defined in Section 9.1 of the Base
Indenture.
"Excess Consumer Lease Amount" means, as of any date of
determination during an Accrual Period, an amount equal to the excess, if
any, of (a) the aggregate Lease Balance of all Eligible Leases that are
Consumer Leases allocated to the Lease SUBI Portfolio as of the last day of
the Monthly Period immediately preceding the first day of such Accrual Period
over (b) an amount equal to 1.0% of the Aggregate Lease Balance as of such
date.
"Excess Damage Charges" means the charges under a Lease due
to damage to the related Leased Vehicle over a prescribed limit.
"Excess Longer-Term Lease Amount" means, as of any date of
determination during an Accrual Period, an amount equal to the greater of (a)
the excess, if any, of (i) the aggregate Lease Balance of all Eligible Leases
having remaining terms of longer than five years allocated to the Lease SUBI
Portfolio as of the last day of the Monthly Period immediately preceding the
first day of such Accrual Period over (ii) an amount equal to 15% of the
Aggregate Lease Balance as of such date and (b) the excess, if any, of (i)
the aggregate Lease Balance of all Eligible Leases having remaining terms of
longer than seven years allocated to the Lease SUBI Portfolio as of the last
day of the Monthly Period immediately preceding the first day of such Accrual
Period over (ii) an amount equal to 5% of the Aggregate Lease Balance as of
such date.
"Excess Mileage Charges" means the charges under a Lease due
to mileage on the related Leased Vehicle over a prescribed limit.
"Excess Paid-In-Advance Amount" means, as of any date of
determination during an Accrual Period, an amount equal to the greatest of
(a) the excess, if any, of (i) the aggregate Cost of each Paid-In Advance
Vehicle allocated to the Lease SUBI Portfolio as of the last day of the
Monthly Period immediately preceding the first day of such Accrual Period
(or, if any such Paid-In Advance Vehicle was allocated to the Lease SUBI
after the last day of such Monthly Period, the Cost thereof as of the date
such Paid-In Advance Vehicle was allocated to the Lease SUBI Portfolio) over
(ii) an amount equal to 10% of the Aggregate Unit Balance as of such date,
(b) the excess, if any, of (i) the aggregate Cost of each Paid-In Advance
-17-
Vehicle allocated to the Lease SUBI Portfolio for more than 60 days as of the
last day of the Monthly Period immediately preceding the first day of such
Accrual Period over (ii) an amount equal to 2.5% of the Aggregate Unit
Balance as of such date and (c) the aggregate Cost of each Paid-In Advance
Vehicle allocated to the Lease SUBI Portfolio for more than 120 days as of
the last day of the Monthly Period immediately preceding the first day of
such Accrual Period.
"Excess Residual Value Amount" means, as of any date of
determination during an Accrual Period, an amount equal to the excess, if
any, of (i) the Aggregate Residual Value Amount as of such date over (ii) an
amount equal to 10% of the Aggregate Unit Balance as of such date.
"Excess State Obligor Risk Amount" means, as of any date of
determination during an Accrual Period, an amount equal to the excess, if
any, of (a) the aggregate Lease Balance of all Eligible Leases the Obligor of
which is a state or local government or any subdivision thereof, or any
agency, department or instrumentality thereof allocated to the Lease SUBI
Portfolio as of the last day of the Monthly Period immediately preceding the
first day of such Accrual Period over (b) an amount equal to 3.0% of the
Aggregate Lease Balance as of such date.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Liens" means a claim for $914,160,108.23 owing to
The Chase Manhattan Bank.
"Expected Final Distribution Date" means, with respect to
any applicable Series of Investor Notes, the date stated in the related
Indenture Supplement as the date on which such Series of Investor Notes is
expected to be paid in full.
"FDIC" means the Federal Deposit Insurance Corporation.
"Fixed Rate Lease" means a Lease accruing finance charges
at a fixed rate per annum.
"Fleet Receivables" means all amounts payable under the
Fleet Service Contracts, a beneficial interest in a portion of which is
represented by the Fleet Receivable SUBI Certificate.
"Fleet Receivable SUBI" means that special unit of
beneficial interest in the Origination Trust created by the Fleet Receivable
SUBI Supplement in a pool of Fleet Receivables acquired by SPV from VMS
pursuant to the Receivable Purchase Agreement and contributed by SPV to the
Origination Trust pursuant to the Contribution Agreement and all Origination
-18-
Trust Assets associated with the Fleet Receivables, including all right,
title and interest of SPV under the Receivables Purchase Agreement.
"Fleet Receivable SUBI Certificate" means the Class X 1999-
1B Sold SUBI Certificate, a certificate of beneficial ownership, representing
a portion of the Fleet Receivable SUBI issued pursuant to the Fleet
Receivable SUBI Supplement.
"Fleet Receivable SUBI Supplement" means the Sold SUBI
Supplement 1999-1B to the Origination Trust Agreement, dated as of the
Initial Closing Date, among SPV, as settlor and initial beneficiary, VMS, as
UTI Trustee and Servicer, and Wilmington Trust Company, as Delaware Trustee
and SUBI Trustee.
"Fleet Service Contract" means a fleet maintenance contract,
fleet management contract, fuel card contract or any other service contract
the fees for which are billed or would be billed by VMS, together with the
Leases.
"Floating Rate Lease" means a Lease accruing finance charges
at a floating rate per annum.
"Foreign Clearing Agency" means Cedel and Euroclear.
"GAAP" means the generally accepted accounting principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors and successors from time to time.
"Gain on Sale Account" is defined in Section 5.2 of the Base
Indenture.
"Global Note" is defined in Section 2.12 of the Base
Indenture.
"Governmental Authority" means the United States of America,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Hedging Instrument" means one or more interest rate swap
contracts, interest rate cap agreements or similar contracts entered into by,
or assigned to, the Issuer in connection with the issuance of a Series of
Investor Notes, as specified in the related Indenture Supplement, providing
limited protection against interest rate risks.
"Hypothetical Yield Shortfall Amount" means, for any
Settlement Date, an amount equal to the product of (x) the excess, if any, of
-19-
the Minimum Yield Rate for such Settlement Date over the CP Rate as of the
last day of the immediately preceding Monthly Period, (y) the aggregate Lease
Balance of all Floating Rate Leases as of the last day of the immediately
preceding Monthly Period and (z) 2.75.
"Incidental Lease Termination Charges" means all Excess
Damage Charges, Excess Mileage Charges and any charges imposed upon the early
termination of a Lease.
"Indebtedness", as applied to any Person, means, without
duplication, (a) all indebtedness for borrowed money, (b) that portion of
obligations with respect to any lease of any property (whether real, personal
or mixed) that is properly classified as a liability on a balance sheet in
conformity with GAAP, (c) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed
money, (d) any obligation owed for all or any part of the deferred purchase
price for property or services, which purchase price is (i) due more than six
months from the date of the incurrence of the obligation in respect thereof
or (ii) evidenced by a note or similar written instrument, (e) all
indebtedness secured by any Lien on any property or asset owned by that
Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person, and
(f) without duplicating any of the foregoing, all Contingent Obligations of
such Person in respect of any of the foregoing.
"Indenture" means the Base Indenture and all amendments
thereof and supplements thereto, including any Indenture Supplement.
"Indenture Supplement" means, with respect to any Series of
Investor Notes, a supplement to the Base Indenture complying with the terms
of Section 2.2 of the Base Indenture, executed in conjunction with any
issuance of any Series of Investor Notes (or, in the case of the issuance of
Investor Notes on the Initial Closing Date, the supplement executed in
connection with the issuance of such Notes).
"Indenture Trustee" means the party named as such in the
Indenture until a successor replaces it in accordance with the applicable
provisions of the Indenture and thereafter means the successor serving
thereunder.
"Independent" means, when used with respect to any specified
Person, that the person (a) is in fact independent of the Issuer, any other
obligor upon the Investor Notes, VMS and any Affiliate of any of the
foregoing persons, (b) does not have any direct financial interest or any
material indirect financial interest in the Issuer, any such other obligor,
VMS or any Affiliate of any of the foregoing Persons and (c) is not connected
with the Issuer, any such other obligor, VMS or any Affiliate of any of the
-20-
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 13.1, of
the Base Indenture made by an Independent engineer, appraiser or other expert
appointed by the Issuer and approved by the Indenture Trustee in the exercise
of reasonable care, and such opinion or certificate shall state that the
signer has read the definition of "Independent" herein and that the signer is
Independent within the meaning thereof.
the Base Indenture.
"Independent Manager" is defined in the LLC Agreement.
"Ineligible Delinquent Lease" means (a) a Master Lease
Agreement as to which 50% or greater of the xxxxxxxx to the Obligor thereof
remain unpaid for more than 60 days from the original due date or which has
been declared in default under the Policies or (b) a Consumer Lease as to
which any amounts remain unpaid for more than 60 days from the original due
date or which has been declared in default under the Policies.
"Initial Aggregate Lease Balance" means $2,504,471,579.
"Initial Assignment" is defined in Section 2.1 of the
Transfer Agreement.
"Initial Closing Date" means June 30, 1999.
"Initial Cut-off Date" means June 18, 1999.
"Initial Invested Amount" means, with respect to any Series
of Investor Notes, the aggregate initial principal amount specified in the
related Indenture Supplement.
"Initial Units" means, as of the Initial Closing Date, all
Units allocated to the Lease SUBI Portfolio as of the Initial Closing Date.
"Insolvency Event" means, as to any Person:
(a)(i) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an
involuntary case under the Bankruptcy Code or any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, which decree or order is not stayed, or any other similar
relief shall be granted under any applicable federal or state law,
(ii) an involuntary case is commenced against such Person under any
-21-
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect which remains undismissed, undischarged or
unbonded for a period of 60 days or (iii) such Person shall have a
decree or an order for relief entered with respect to it or commence
a voluntary case under the Bankruptcy Code or any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect;
(b) such Person shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceedings
of or relating to all or substantially all of its property, or a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been entered
against such Person; or such Person shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations.
"Interest Period" means, with respect to any Series of
Investor Notes, the period specified in the related Indenture Supplement.
"Invested Amount" means, with respect to each Series of
Investor Notes, the amount specified in the related Indenture Supplement.
"Invested Percentage" means, with respect to any Series of
Investor Notes, the percentage specified in the related Indenture Supplement.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Investor Noteholder" and "Holder" means the Person in whose
name an Investor Note is registered in the Note Register.
"Investor Notes" means any one of the promissory notes
(including, without limitation, the Bearer Notes, the Registered Notes or the
Global Notes) issued by the Issuer, executed by the Issuer and authenticated
by the Indenture Trustee substantially in the form (or forms in the case of a
Series of Notes with multiple Classes) of the investor note attached to the
related Indenture Supplement.
"Issuer" means Greyhound Funding LLC, a Delaware limited
liability company.
-22-
"Issuer Accounts" means the Collection Account and each
Series Account.
"Issuer Assets" means all assets of the Issuer, including,
among other things, the SUBIs, the SUBI Certificates (including all rights of
the holder thereof under the Origination Trust Documents), the Units, any
Hedging Instruments, the Transfer Agreement, the Administration Agreement,
the Management Agreement and all proceeds of the foregoing.
"Issuer General Account" is defined in the LLC Agreement.
"Issuer Obligations" means all principal and interest, at
any time and from time to time, owing by the Issuer on the Investor Notes and
all costs, fees and expenses payable by, or obligations of, the Issuer under
the Indenture.
"Issuer Order" and "Issuer Request" means a written order or
request signed in the name of the Issuer by any one of its Authorized
Officers and delivered to the Indenture Trustee.
"Lease Balance" means, as of any date of determination, with
respect to (a) any Open-End Lease, an amount equal to the Net Book Value of
the Leased Vehicle subject to such Lease and (b) any Closed-End Lease, an
amount equal to the sum of all remaining monthly lease payments (other than
payments of finance charges and other incidental fees) due in respect of such
Leased Vehicle on or after such date; provided, however that the Lease
Balance of a Charged-Off Lease shall be zero.
"Lease Balance Decline" means, for any Lease for any
Settlement Date, an amount equal to the sum of (a) the Lease Balance of such
Lease as of the last day of the Monthly Period preceding the Monthly Period
immediately preceding such Settlement Date less the Lease Balance of such
Lease as of the last day of the Monthly Period immediately preceding such
Settlement Date plus (b), in the case of a Closed-End Lease, the Net Book
Value of the related Unit Vehicle if such Unit Vehicle shall have become a
Residual Value Vehicle during the Monthly Period immediately preceding such
Settlement Date.
"Lease" means an Open-End Lease or a Closed-End Lease
originated by or on behalf of VMS or the Origination Trust pursuant to a
Master Lease Agreement or a Consumer Lease originated by or on behalf of VMS
or the Origination Trust.
"Leased Vehicle" means the Vehicle subject to a Lease.
-23-
"Lease Rate Cap" means, with respect to any Series of
Investor Notes, the interest rate caps that are required to be maintained by
the Issuer pursuant to the related Indenture Supplement.
"Lease SUBI" means that special unit of beneficial interest
in the Origination Trust created by the Lease SUBI Supplement.
"Lease SUBI Certificate" means the certificate of beneficial
ownership, representing beneficial ownership in the Sold Units allocated to
the Lease SUBI Portfolio issued pursuant to the Lease SUBI Supplement.
"Lease SUBI Portfolio" or "1999-1A Sold SUBI Portfolio"
means the Origination Trust Assets that are from time to time allocated to
the Lease SUBI in accordance with the terms of the Origination Trust
Documents.
"Lease SUBI Supplement" means the Sold SUBI Supplement 1999-
1A to the Origination Trust Agreement, dated as of the Initial Closing Date,
among SPV, as settlor and initial beneficiary, VMS, as UTI Trustee and
Servicer, and Wilmington Trust Company, as Delaware Trustee and SUBI Trustee.
"Lien" means, when used with respect to any Person, any
interest in any real or personal property, asset or other right held, owned
or being purchased or acquired by such Person which secures payment or
performance of any obligation, and shall include any mortgage, lien, pledge,
encumbrance, charge, retained security title of a conditional vendor or
lessor, or other security interest of any kind, whether arising under a
security agreement, mortgage, lease, deed of trust, chattel mortgage, assign-
ment, pledge, retention or security title, financing or similar statement, or
notice or arising as a matter of law, judicial process or otherwise.
"LLC Agreement" means the Limited Liability Agreement of the
Issuer, dated as of the Initial Closing Date, as amended, modified or
supplemented from time to time in accordance with its terms.
"Luxembourg Agent" is defined in Section 2.3(c) of the Base
Indenture.
"Majority in Interest" of each Series of Investor Notes
means Noteholders of such Series holding Investor Notes evidencing more than
50% by outstanding principal amount of each Class of Investor Notes of such
Series.
"Management Agreement" means the Management Agreement, dated
as of the Initial Closing Date, by and among the Managing Agent, the Issuer
and the Administrator, as amended, modified or supplemented from time to time
in accordance with its terms.
-24-
"Manager" is defined in the LLC Agreement.
"Managing Agent" means Global Securitization Services LLC or
a successor Managing Agent under the Management Agreement.
"Master Lease Agreement" means each master lease agreement
between an Obligor and VMS and assigned by VMS to the Origination Trust or
assigned by VMS to SPV and by SPV to the Origination Trust or between an
Obligor and the Origination Trust, in each case, in all material respects in
a form attached to the Series 1999-1 SUBI Servicing Supplement.
"Material Adverse Effect" means, with respect to any
occurrence, event or condition:
(i) a material adverse effect on the Issuer's title to the
SUBI Certificates or the beneficial interest in the Sold Units or
Fleet Receivables represented thereby;
(ii) a material adverse effect on the validity, status,
perfection or priority of the Lien of the Indenture Trustee in the
Collateral;
(iii) a material adverse effect on the business, properties,
financial condition or results of operations of the Issuer or the
ability of the Issuer to perform its obligations under the Indenture;
(iv) a material adverse effect on the business, properties,
financial condition or results of operations of ARAC and its
subsidiaries as a whole; or
(v) a material adverse effect on the validity or
enforceability of the Indenture or any of the other Transaction
Documents.
"Maximum Invested Amount" means, with respect to each Series
of Investor Notes, the amount, if any, specified in the related Indenture
Supplement.
"Member" means a Preferred Member or the Common Member.
"Membership Interest" means a Preferred Membership Interest
or the Common Membership Interest.
"Minimum Adjusted Aggregate Unit Balance" means the sum of
the numerators used on such date to calculate the Invested Percentage with
-25-
respect to Collections for all Series of Outstanding Investor Notes on such
date.
"Minimum Yield Rate" means, for any Settlement Date, a rate
per annum equal to the sum of (i) the Weighted Average Cost of Funds for such
Settlement Date, (ii) the Weighted Average Servicing Fee Percentage for such
Settlement Date and (iii) 0.25%.
"Monthly Period" means, unless otherwise defined in any
Indenture Supplement, the period from and including a Period End Date (or, in
the case of the initial Monthly Period, from the Initial Cutoff Date) to but
excluding the succeeding Period End Date.
"Monthly Residual Value Gain" means, for any Monthly Period,
an amount equal to the excess, if any, of (a) all Termination Proceeds
received by the Servicer during such Monthly Period for all Unit Vehicles
that became Residual Value Vehicles during such Monthly Period and all prior
Monthly Periods over (b) the aggregate Net Book Values of all Unit Vehicles
that became Residual Value Vehicles during such Monthly Period.
"Monthly Residual Value Loss" means, for any Monthly Period,
an amount equal to the excess, if any, of (a) the aggregate Net Book Values
of all Unit Vehicles that became Residual Value Vehicles during such Monthly
Period over (b) all Termination Proceeds received by the Servicer during such
Monthly Period for all Unit Vehicles that became Residual Value Vehicles
during such Monthly Period and all prior Monthly Periods.
"Monthly Servicer Advance" means the aggregate amount of
funds advanced by the Servicer to the Issuer on any Settlement Date for
deposit in the Collection Account in respect of monthly lease payments due
but not received during the immediately preceding Monthly Period on the Sold
Units and in respect of Fleet Receivables due but not received during the
immediately preceding Monthly Period in accordance with the Series 1999-1
SUBI Servicing Supplement.
"Monthly Servicer Advance Reimbursement Amount" means, on
any Settlement Date, the aggregate amount payable to the Servicer in
reimbursement of amounts previously advanced by the Servicer in respect of
delinquent monthly lease payments and delinquent Fleet Receivables pursuant
to Section 7.4 of the Series 1999-1 SUBI Servicing Supplement on such
Settlement Date.
"Monthly Settlement Statement" means, with respect to each
Series of Outstanding Investor Notes, the settlement statement in the form
attached to the related Indenture Supplement delivered by the Issuer to the
Indenture Trustee pursuant to Section 4.4(a) of the Base Indenture.
-26-
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Book Value" means, as of any date of determination
during an Accrual Period with respect to each Leased Vehicle, such Leased
Vehicle's Capitalized Cost minus the sum of all monthly lease payments billed
thereunder (other than payments of finance charges and other incidental
fees) in respect of such Leased Vehicle through such date.
"1999-1B Invested Amount" is defined in the Fleet Receivable
SUBI Supplement.
"1999-1B Sold SUBI Portfolio" means the Origination Trust
Assets that are from time to time allocated to the Fleet Receivable SUBI in
accordance with the terms of the Origination Trust Documents.
"Note Rate" means, with respect to any Series of Investor
Notes, the annual rate at which interest accrues on the Investor Notes of
such Series of Investor Notes (or formula on the basis of which such rate
shall be determined) as stated in the related Indenture Supplement.
"Note Register" means the register maintained pursuant to
Section 2.4(a) of the Base Indenture, providing for the registration of the
Investor Notes and transfers and exchanges thereof.
"Obligor" means, with respect to any Lease or Fleet
Receivable, the Person or Persons obligated to make payment with respect to
such Lease or Fleet Receivable, including any guarantor thereof.
"Officer's Certificate" means a certificate signed by an
Authorized Officer of the Issuer, SPV, the Origination Trust, the Servicer or
the Administrator, as the case may be.
"Open-End Lease" means a lease obligation in respect of a
single vehicle which may arise pursuant to a master lease agreement providing
for the lease of a fleet of vehicles or pursuant to a lease agreement
providing for the lease of a single vehicle that, in each case, obligates the
lessee thereunder to pay the lessor at lease termination any deficit between
the sales proceeds from the sale of the vehicle subject thereto and the book
value thereof (other than the portion of any deficit resulting from the sales
proceeds being less than 16% of the fair market value thereof determined in
accordance with such lease).
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Indenture Trustee. The counsel may be an
employee of or counsel to the Issuer, SPV, VMS, the Origination Trust, the
Administrator or the Servicer, as the case may be.
-27-
"Origination Trust" means X.X. Xxxxxxxx Trust, a statutory
business trust organized under the laws of the State of Delaware.
"Origination Trust Agreement" means the Amended and Restated
Origination Trust Agreement, dated as of the Initial Closing Date, among SPV,
as settlor and initial beneficiary, VMS, as UTI Trustee, and Wilmington Trust
Company, as Delaware Trustee, as amended, supplemented and modified by the
Lease SUBI Supplement and the Fleet Receivable SUBI Supplement and as the
same may be further amended, supplemented or modified from time to time.
"Origination Trust Assets" means all assets, at any time,
owned by the Origination Trust at such time.
"Origination Trust Documents" means the Origination Trust
Agreement, including the Lease SUBI Supplement and the Fleet Receivable SUBI
Supplement, the Origination Trust Servicing Agreement, including the Series
1999-1 SUBI Servicing Supplement, the Custodian Agreement, the SUBI
Certificates, the Receivable Purchase Agreement, the Asset Sale Agreement and
the Contribution Agreement.
"Origination Trust Servicing Agreement" means the
Origination Trust Servicing Agreement, dated as of the Initial Closing Date,
between the Origination Trust and the Servicer as amended, supplemented and
modified by the Series 1999-1 SUBI Servicing Supplement and as the same may
be further amended, supplemented or modified from time to time.
"Outstanding" has the meaning, with respect to any Series of
Investor Notes, set forth in the related Indenture Supplement.
"Overconcentration Amount" means, as of any date of
determination during an Accrual Period, an amount equal to the greatest of
(a) the aggregate Lease Balance of the Eligible Leases to which the Obligors
having the five largest aggregate Lease Balances of Eligible Leases allocated
to the Lease SUBI Portfolio are a party as of the last day of the Monthly
Period immediately preceding the first day of such Accrual Period over (ii)
an amount equal to 15% of the Aggregate Lease Balance as of such date, (b)
the aggregate Lease Balance of the Eligible Leases to which the Obligors
having the ten largest aggregate Lease Balances of Eligible Leases allocated
to the Lease SUBI Portfolio are a party as of the last day of the Monthly
Period immediately preceding the first day of such Accrual Period over (ii)
an amount equal to 25% of the Aggregate Lease Balance as of such date and (c)
the excess, if any, of (i) the aggregate Lease Balance of the Eligible Leases
to which the Obligor having the largest aggregate Lease Balance of Eligible
Leases allocated to the Lease SUBI Portfolio is a party as of the last day of
the Monthly Period immediately preceding the first day of such Accrual Period
over (ii) an amount equal to 4% of the Aggregate Lease Balance as of such
date; provided, however that if the long-term debt obligations of such
-28-
Obligor are not rated at least Baa3 by Moody's as of such date, the amount in
this clause (ii) shall equal 3% of the Aggregate Lease Balance as of such
date.
"Paid-In Advance Loss Ratio" means, for any specified
Settlement Date, the quotient, expressed as a percentage, of (a) the excess,
if any, of (i) the aggregate Cost of all Unit Paid-In Advance Vehicles that
became Rejected Paid-In Advance Vehicles during the immediately preceding
Monthly Period over (ii) all Paid-In Advance Proceeds received by the
Servicer during the preceding Monthly Period for all Unit Paid-In Advance
Vehicles that became Rejected Paid-In Advance Vehicles during such Monthly
Period and all prior Monthly Periods divided by (b) the aggregate Cost of all
Unit Paid-In Advance Vehicles that became Rejected Paid-In Advance Vehicles
during the immediately preceding Monthly Period.
"Paid-In Advance Proceeds" means for any Rejected Paid-In
Advance Vehicle the sum of all amounts received by the Servicer upon, after
or in connection with the sale or other disposition of such Rejected Paid-In
Advance Vehicle, net of any and all out-of-pocket costs and expenses incurred
by the Servicer in connection with such sale or other disposition, and any
and all amounts received from the related Obligor in connection with such
Rejected Paid-In Advance Vehicle.
"Paid-In Advance Vehicle" means a Vehicle acquired at the
request of an Obligor who is either a party to a Master Lease Agreement or
who has agreed to be bound by a Master Lease Agreement but not yet accepted
by such Obligor.
"Paying Agent" means any paying agent appointed pursuant to
Section 2.6 of the Base Indenture.
"Payment Date" means, with respect to each Series of
Investor Notes, the dates set forth in the related Indenture Supplement.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Pension Plan" means any "employee pension benefit plan", as
such term is defined in ERISA, which is subject to Title IV of ERISA (other
than a "multiemployer plan", as defined in Section 4001 of ERISA) and to
which any company in the Controlled Group has liability, including any
liability by reason of having been a substantial employer within the meaning
of Section 4063 of ERISA for any time within the preceding five years or by
reason of being deemed to be a contributing sponsor under Section 4069 of
ERISA.
-29-
"Period End Date" means each date set forth in Schedule X to
the Series 1999-1 SUBI Servicing Supplement, as such schedule is amended and
supplemented from time to time in accordance with the terms of the Series
1999-1 SUBI Servicing Supplement.
"Permitted Investments" means negotiable instruments or
securities, payable in Dollars, issued by an entity organized under the laws
of the United States of America and represented by instruments in bearer or
registered or in book-entry form which evidence (excluding any security with
the "r" symbol attached to its rating):
(i) obligations the full and timely payment of which are to
be made by or is fully guaranteed by the United States of America
other than financial contracts whose value depends on the values or
indices of asset values;
(ii) demand deposits of, time deposits in, or certificates
of deposit issued by, any depositary institution or trust company
incorporated under the laws of the United States of America or any
state thereof whose short-term debt is rated P-1 or higher by Moody's
and "A-1+" or higher by Standard & Poor's and subject to supervision
and examination by Federal or state banking or depositary institution
authorities; provided, however, that at the earlier of (x) the time
of the investment and (y) the time of the contractual commitment to
invest therein, the certificates of deposit or short-term deposits,
if any, or long-term unsecured debt obligations (other than such
obligation whose rating is based on collateral or on the credit of a
Person other than such institution or trust company) of such
depositary institution or trust company shall have a credit rating
from Standard & Poor's of "A-1+", in the case of certificates of
deposit or short-term deposits, or a rating from Standard & Poor's
not lower than "AA", in the case of long-term unsecured debt obli-
gations;
(iii) commercial paper having, at the earlier of (x) the
time of the investment and (y) the time of the contractual commitment
to invest therein, a rating from Standard & Poor's of "A-1+";
(iv) bankers' acceptances issued by any depositary
institution or trust company described in clause (ii) above;
(v) investments in money market funds rated "AAAm" by
Standard & Poor's or otherwise approved in writing by Standard &
Poor's;
(vi) Eurodollar time deposits having a credit rating from
Standard & Poor's of "A-1+";
-00-
(xxx) xxxxxxxxxx agreements involving any of the Permitted
Investments described in clauses (i) and (vi) above and the
certificates of deposit described in clause (ii) above which are
entered into with a depository institution or trust company, having a
commercial paper or short-term certificate of deposit rating of
"A-1+" by Standard & Poor's and P-1 by Moody's or which otherwise is
approved as to collateralization by the Rating Agencies; and
(viii) any other instruments or securities, if the Rating
Agencies confirm in writing that the investment in such instruments
or securities will not adversely affect any ratings with respect to
any Series of Investor Notes.
"Permitted Liens" means (i) Liens for current taxes not
delinquent or for taxes being contested in good faith and by appropriate
proceedings, and with respect to which adequate reserves have been
established, and are being maintained, in accordance with GAAP, (ii)
mechanics', materialmen's, landlords', warehousemen's and carrier's Liens,
and other Liens imposed by law, securing obligations arising in the ordinary
course of business that are not more than thirty days past due or are being
contested in good faith and by appropriate proceedings and with respect to
which adequate reserves have been established, and are being maintained, in
accordance with GAAP, (iii) on the Initial Closing Date only, the Existing
Liens, (iv) Liens in favor of the Origination Trust in the Leased Vehicles,
(v) Liens in favor of the Issuer pursuant to the Transfer Agreement, (vi)
Liens in favor of the Indenture Trustee pursuant to the Indenture, and (vii)
Liens in favor of an Enhancement Provider, provided, however, that such Liens
are subordinate to the Liens in favor of the Indenture Trustee and have been
consented to by the Indenture Trustee.
"Person" means any natural person, corporation, business
trust, joint venture, association, limited liability company, partnership,
joint stock company, corporation, trust, unincorporated organization or
Government Authority.
"PHH Consumer Lease" means PHH Personal Lease Corporation, a
Maryland corporation.
"PHH Treasury Note Rate" means, on any day between the 16th
day of the month through the 15th day of the following month, the interest
rate that is quoted in the Federal Reserve Statistical Release (H.15 Report)
for two year treasury constant maturities on the fifteenth day of that month,
or the first business day thereafter if the fifteenth day of the month falls
on a non-business day.
"Physical Property" means banker's acceptances, commercial
paper, negotiable certificates of deposits and other obligations that
-31-
constitute "instruments" within the meaning of Section 9-105(l)(i) of the
applicable UCC and are susceptible to physical delivery and Certificated
Securities.
"Policies" means the standards, policies and procedures,
including but not limited to the credit and residual accrual policies applied
by the Servicer in originating Leases and those applied by the Servicer in
its collection and repossession activities.
"Pool Factor" means, except with respect to any Series of
Notes issued in more than one Class, a number carried out to seven decimals
representing the ratio of the applicable Invested Amount as of such Record
Date (determined after taking into account any reduction in the Invested
Amount which will occur on the following Payment Date) to the applicable
Initial Invested Amount, and with respect to a Series of Notes having more
than one Class, as specified in the Indenture Supplement relating to such
Series.
"Potential Amortization Event" means any occurrence or event
which, with the giving of notice, the passage of time or both, would
constitute an Amortization Event.
"Potential Termination Event" means any occurrence or event
which, with the giving of notice, the passage of time or both, would
constitute a Termination Event.
"Preferred Member" means a Person in whose name a Preferred
Membership Interest is registered in the Register.
"Preferred Membership Interests"means the Preferred
Membership Interests issued pursuant to the LLC Agreement.
"Principal Payment Amount" means, for any Settlement Date,
the sum of (a) the Lease Balance Declines for each Unit Lease for such
Settlement Date and (b) the aggregate Cost of all Paid-In Advance Vehicles
that became Rejected Paid-In Advance Vehicles during the immediately
preceding Monthly Period.
"Principal Terms" is defined in Section 2.2 of the Base
Indenture.
"Proceeding" means any suit in equity, action or law or
other judicial or administrative proceeding.
"Qualified Institution" means a depository institution
organized under the laws of the United States of America or any State thereof
or incorporated under the laws of a foreign jurisdiction with a branch or
-32-
agency located in the United States of America or any State thereof and
subject to supervision and examination by federal or state banking
authorities which at all times has the Required Rating and, in the case of
any such institution organized under the laws of the United States of
America, whose deposits are insured by the FDIC.
"Qualified Trust Institution" means an institution organized
under the laws of the United States of America or any State thereof or
incorporated under the laws of a foreign jurisdiction with a branch or agency
located in the United States of America or any State thereof and subject to
supervision and examination by federal or state banking authorities which at
all times (i) is authorized under such laws to act as a trustee or in any
other fiduciary capacity, (ii) has not less than one billion dollars in
assets under fiduciary management, and (iii) has a long term deposits rating
of not less than "BBB-" by Standard & Poor's and Baa3 by Moody's.
"Quarterly Compliance Certificate" is defined in Section
4.1(a) of the Base Indenture.
"Rating Agency" means, with respect to each Series of Notes,
the rating agency or agencies, if any, specified in the related Indenture
Supplement.
"Rating Agency Condition" means, the notification in writing
by the Rating Agencies that a proposed action will not result in a reduction
or withdrawal by each such Rating Agency of the rating of any Class of any
Series of Outstanding Investor Notes rated by such Rating Agency.
"Receivable Purchase Agreement" means the Receivable
Purchase Agreement, dated as of the Initial Closing Date, by and between SPV
and VMS, as amended, modified or supplemented from time to time in accordance
with its terms.
"Receivable Purchase Termination Event" is defined in the
Receivable Purchase Agreement.
"Record Date" means, with respect to each Series of Notes,
the dates specified in the related Indenture Supplement.
"Recoveries" means any amounts received by the Servicer with
respect to Charged-Off Leases, including Collections received from Obligors
and liquidation proceeds of the related Leased Vehicles, net of (i) any
applicable rental receipts tax, sales and use tax, personal property tax, ad
valorem tax or any other tax or any governmental fees or charges, (ii) any
and all out-of-pocket costs and expenses incurred by the Servicer in
connection with such recovery and (iii) any amounts remitted to the related
Obligor as required by applicable law or the related Lease.
-33-
. "Register" means the register mentioned in Section 11.3 of
the LLC Agreement.
"Registered Notes" is defined in Section 2.1 of the Base
Indenture.
"Rejected Paid-In Advance Vehicles" means, for any Monthly
Period, all Unit Paid-In Advance Vehicles which were sold or otherwise
disposed of after rejection thereof by the related Obligor during such
Monthly Period.
"Related Rights" means, with respect to any Unit, all
Origination Trust Assets to the extent such assets are associated with such
Unit.
"Repurchase Amount" means, with respect to any Series of
Investor Notes, the amount specified in the related Indenture Supplement.
"Required Aggregate Asset Amount" means the sum of the
Required Asset Amounts with respect to all Series of Outstanding Investor
Notes.
"Required Asset Amount" means, with respect to any Series of
Investor Notes, the amount specified in the related Indenture Supplement.
"Required Overcollateralization Amount" means, with respect
to any Series of Investor Notes, the amount specified in the related
Indenture Supplement.
"Required Rating" means a short-term certificate of deposit
rating from Moody's of P-1 and from Standard & Poor's of "A-1" and a long-
term unsecured debt rating of not less than Aa3 by Moody's and "AA-" by
Standard & Poor's.
"Requirements of Law" means, with respect to any Person or
any of its property, the certificate of incorporation or articles of
association and by-laws or other organizational or governing documents of
such Person or any of its property, and any law, treaty, rule or regulation,
or determination of any arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject, whether Federal, state or
local (including, without limitation, usury laws, the Federal Truth in
Lending Act and retail installment sales acts).
"Residual Value Loss" means, for any Unit Vehicle which
became a Residual Value Vehicle during a Monthly Period, an amount equal to
-34-
(a) the Stated Residual Value of such Unit Vehicle minus (b) all Termination
Proceeds with respect to such Unit Vehicle during such Monthly Period.
"Residual Value Loss Ratio" means, for any specified
Settlement Date, the quotient, expressed as a percentage, of (a) the sum of
the Residual Value Losses for all Unit Vehicles that became Residual Value
Vehicles during the preceding Monthly Period minus all Termination Proceeds
included in clauses (i) and (ii) of the definition thereof received by the
Servicer during the preceding Monthly Period for all Unit Vehicles that
became Residual Value Vehicles during prior Monthly Periods divided by (b)
the sum of the Stated Residual Values for all Unit Vehicles that became
Residual Value Vehicles during the preceding Monthly Period.
"Residual Value Vehicles" means, for any Monthly Period, all
Unit Vehicles subject to Closed-End Leases (other than Unit Vehicles subject
to Charged-off Leases) which were sold or otherwise disposed of after
termination or expiration of the related Closed-End Lease during such Monthly
Period.
"Responsible Officer" means, with respect to the Indenture
Trustee, any officer within the Corporate Trust Office, including any
Assistant Vice President, Vice President, any Secretary or Assistant
Secretary or any other officer of the Indenture Trustee customarily
performing functions similar to those performed by any Person who at the time
shall be an above-designated officer and having direct responsibility for
administration of the Indenture and the applicable Series Supplement and also
any particular officer to whom any corporate trust matter is referred because
of such officer's knowledge of and familiarity with the particular subject.
"Revised Article 8" means Revised Article 8 (1994 Version)
(and corresponding amendments to Article 9) as promulgated by the National
Conference of Commissioners on Uniform State Laws.
"Revolving Period" means, with respect to any Series of
Investor Notes, the period specified in the related Indenture Supplement.
"S&P" or "Standard & Poor's" means Standard & Poor's Ratings
Service, a division of The XxXxxx-Xxxx Companies, Inc.
"Securities Act" means the Securities Act of 1933, as
amended.
"Securities Intermediary" means a "securities intermediary"
within the meaning of Section 8-102(a)(14) of Revised Article 8.
"Securitization" is defined in the Origination Trust
Agreement.
-35-
"Security Entitlement" means a "security entitlement" within
the meaning of Section 8-102(a)(17) of Revised Article 8.
"Series" means any Series of Investor Notes, which may
include within any such Series a Class or Classes of Investor Notes
subordinate to another such Class or Classes of Investor Notes.
"Series Gain on Sale Account Percentage" means, with respect
to any Series of Investor Notes, the percentage specified in the related
Indenture Supplement.
"Series Account" means any account or accounts established
pursuant to an Indenture Supplement for the benefit of a Series of Notes.
"Series Administrator Fee," with respect to any Series of
Notes, that portion of the Administrator Fee payable from Collections
allocable to such Series pursuant to the related Indenture Supplement.
"Series Closing Date" means, with respect to any Series of
Investor Notes, the date
of issuance of such Series of Investor Notes, as specified in the related
Indenture Supplement.
"Series 1999-1 SUBI Servicing Supplement" means the Series
1999-1 Servicing Supplement to the Origination Trust Servicing Agreement,
dated as of the Initial Closing Date,
between the Origination Trust and the Servicer.
"Series Note Termination Date" means, with respect to any
Series of Investor Notes, the date stated in the related Indenture Supple-
ment.
"Series Servicing Fee," with respect to any Series of Notes,
that portion of the Servicing Fee payable from Collections allocable to such
Series pursuant to the related Indenture Supplement.
"Series Servicing Fee Percentage" means, with respect to any
Series of Notes, the amount specified in the related Indenture Supplement.
"Series Termination Date" means, with respect to any Series
of Investor Notes, the date stated in the related Indenture Supplement as the
termination date.
"Servicer" means VMS in its capacity as servicer under the
Origination Trust Servicing Agreement.
-36-
"Servicer Termination Event" is defined in the Origination
Trust Servicing Agreement.
"Servicing Fee" is defined in the Origination Trust
Servicing Agreement.
"Settlement Date" means the 7th day of each month, or if
such date is not a Business Day, the next succeeding Business Day, commencing
August 9, 1999.
"Settlement Statement" is defined in Section 4.1 of the Base
Indenture.
"Sold Units" means, collectively, the Initial Units and the
Additional Units.
"Special Purpose Entity" is defined in the Origination Trust
Agreement.
"SPV" means Raven Funding LLC, a Delaware limited liability
company.
"Stated Residual Value" means, for any Unit Vehicle subject
to a Closed-End Lease, the stated residual value of such Unit Vehicle
established at the time of origination of such Closed-End Lease in accordance
with the Policies.
"SUBI Assets" is defined in the Origination Trust Agreement.
"SUBIs" means the Fleet Receivable SUBI and the Lease SUBI.
"SUBI Certificates" means the Fleet Receivable SUBI
Certificate and the Lease SUBI Certificate.
"SUBI Portfolio" is defined in the Origination Trust
Agreement.
"Subsidiary" means, with respect to any Person (herein
referred to as the "parent"), any corporation, partnership, association or
other business entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary
voting power or more than 50% of the general partnership interests are, at
the time any determination is being made, owned, controlled or held by the
parent or (b) that is, at the time any determination is being made, otherwise
controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
-37-
"Tax Opinion" means an opinion of counsel to be delivered in
connection with the issuance of a new Series of Investor Notes to the effect
that, for United States federal income tax purposes, (i) the issuance of such
new Series of Notes will not affect adversely the United States federal
income tax characterization of any Series of Outstanding Notes or Class
thereof that was (based upon an opinion of counsel) characterized as debt at
the time of their issuance and (ii) the Issuer will not be classified as an
association or as a publicly traded partnership taxable as a corporation for
United States federal income tax purposes.
"Termination Event" means any of a Receivable Purchase
Termination Event or a Transfer Termination Event.
"Termination Proceeds" means for any Residual Value Vehicle
all amounts received by the Servicer upon, after or in connection with the
termination of the related Lease including, without limitation, (i) sales
proceeds with respect to such Residual Value Vehicle, net of any and all out-
of-pocket costs and expenses incurred by the Servicer in connection with such
sale or other disposition and any amounts remitted to the related Obligor as
required by applicable law or the related Lease, (ii) any and all insurance
proceeds received in connection with the occurrence of a casualty event in
respect of such Residual Value Vehicle and (iii) any and all amounts billed
the related Obligor in connection with the termination of such Lease,
including any Incidental Lease Termination Payments.
"Three Month Average Charge-Off Ratio" means, with respect
to any Settlement Date, the average of the Charge-Off Ratios for such
Settlement Date and the two immediately preceding Settlement Dates.
"Three Month Average Delinquency Ratio" means, with respect
to any Settlement Date, the average of the Delinquency Ratios for such
Settlement Date and the two immediately preceding Settlement Dates.
"Three Month Average Paid-In Advance Loss Ratio" means, with
respect to any Settlement Date, the average of the Paid-In Advance Loss
Ratios for such Settlement Date and the two immediately preceding Settlement
Dates.
"Three Month Average Residual Value Loss Ratio" means, with
respect to any Settlement Date, the average of the Residual Value Loss Ratios
for such Settlement Date and the two immediately preceding Settlement Dates.
"TIA" means the Trust Indenture Act of 1939 as in force on
the date hereof, unless otherwise specifically provided.
"Transaction Documents" means, collectively, the Indenture,
the Investor Notes, any agreements relating to the issuance or the purchase
-38-
of any of the Investor Notes, any agreements relating to any Credit
Enhancement for any Investor Notes, the LLC Agreement, the Transfer
Agreement, the Administration Agreement, the Management Agreement and the
Origination Trust Documents.
"Transfer Agent and Registrar" is defined in Section 2.4 of
the Base Indenture.
"Transfer Agreement" means the Transfer Agreement, dated as
of the Initial Closing Date, between SPV and the Issuer, as amended, modified
or supplemented from time to time in accordance with its terms.
"Transfer Date" means, unless otherwise specified in the
related Indenture Supplement, with respect to any Series of Notes, the
Business Day immediately prior to each Payment Date.
"Transferred Asset Payment" is defined in Section 2.3 of the
Transfer Agreement.
"Transferred Assets" is defined in the Transfer Agreement.
"Transfer Termination Event" is defined in the Transfer
Agreement.
"Twelve Month Average Charge-Off Ratio" means, with respect
to any Settlement Date, the average of the Charge-Off Ratios for such
Settlement Date and the eleven immediately preceding Settlement Dates.
"Twelve Month Average Paid-In Advance Loss Ratio" means,
with respect to any Settlement Date, the average of the Paid-In Advance Loss
Ratios for such Settlement Date and the eleven immediately preceding
Settlement Dates.
"Twelve Month Average Residual Value Loss Ratio" means, with
respect to any Settlement Date, the average of the Residual Value Loss Ratios
for such Settlement Date and the eleven immediately preceding Settlement
Dates.
"UCC" means the Uniform Commercial Code as in effect from
time to time in the applicable jurisdiction.
"Uncertificated Security" means an "uncertificated security"
within the meaning of the applicable UCC.
"Unit" means a Vehicle, the related Lease and the Related
Rights associated therewith or a Paid-In Advance Vehicle and the Related
Rights associated therewith.
-39-
"Unit Leases" means the Leases allocated to the Lease SUBI
Portfolio.
"Unit Paid-In Advance Vehicles" means the Paid-In Advance
Vehicles allocated to the Lease SUBI Portfolio.
"Unit Repurchase Payments" means, for any Settlement Date,
the aggregate amount payable by the Servicer pursuant to Section 7.15 of the
Series 1999-1 SUBI Servicing Supplement on such Settlement Date.
"Unit Vehicle" means the Leased Vehicles and Paid-In Advance
Vehicles allocated to the Lease SUBI Portfolio.
"United States Security Entitlement" means a "Security
Entitlement" as defined in 31 C.F.R. Section 357.2, 24 C.F.R. Section 1.2, 12
C.F.R. Section 912.1, 12 C.F.R. Section 1511.1, 12 C.F.R. Section 615.5450 or
31 C.F.R. Section 354.1.
"United States" or "U.S." means the United States of
America, its fifty States and the District of Columbia.
"U.S. Government Obligations" means direct obligations of
the United States of America, or any agency or instrumentality thereof for
the payment of which the full faith and credit of the United States of
America is pledged as to full and timely payment of such obligations.
"UTI" is defined in the Origination Trust Agreement.
"UTI Assets" is defined in the Origination Trust Agreement.
"Vehicle" means an automobile, a truck, a truck chassis, a
truck body, a truck tractor, a truck trailer or another type of motorized
vehicle or equipment, together with any and all accessories, additions and
parts from time to time in or to any of the foregoing and all accessions
thereto
"VMS" means PHH Vehicle Management Services LLC or any
predecessor in interest thereto (including, without limitation, PHH Fleet
America Corporation and Xxxxxxxx, Xxxxxx & Xxxxxxx, Inc.).
"Weighted Average Cost of Funds" means, for any Settlement
Date, the quotient of the sum of (i) the aggregate amount of interest payable
on all Series of Outstanding Investor Notes on such Settlement Date and (ii)
the aggregate amount of dividends payable on all series of Preferred
Membership Interests on such Settlement Date divided by the sum of (i) the
weighted average aggregate Invested Amount of all Series of Outstanding
Investor Notes during the immediately preceding Accrual Period and (ii) the
-40-
aggregate stated liquidation preference of all series of Preferred Membership
Interests as of such Settlement Date (before giving effect to any redemptions
on such Settlement Date).
"Weighted Average Servicing Fee Percentage" means, for any
Settlement Date, the sum of (i) .01% and the quotient of the sum of the
product of the Required Asset Amount with respect to each Series of
Outstanding Notes and the Series Servicing Fee Percentage with respect to
such Series of Outstanding Notes as of the last day of the immediately
preceding Monthly Period divided by the Required Aggregate Asset Amount as of
such last day.
"Weighted Average Yield Shortfall" means, for any Settlement
Date, the excess, if any, of (a) the Minimum Yield Rate for such Settlement
Date over (b) the Weighted Average Yield Shortfall Lease Yield for such
Settlement Date.
"Weighted Average Yield Shortfall Life" means, for any
Settlement Date, 50% of the weighted (on the basis of Net Book Value of the
related Leased Vehicle) average Assumed Lease Term of the Yield Shortfall
Leases, assuming that all scheduled lease payments are made thereon when
scheduled and that the Obligors thereunder do not elect to convert such Yield
Shortfall Leases to Fixed Rate Leases, as of the last day of the immediately
preceding Monthly Period.
"Weighted Average Yield Shortfall Lease Yield" means, for
any Settlement Date, the quotient of the sum of the product with respect to
each Yield Shortfall Lease of (a) the actual or implicit finance charge rate
applicable to such Yield Shortfall Lease and (b) the Net Book Value of the
Leased Vehicle subject to such Yield Shortfall Lease as of the last day of
the immediately preceding Monthly Period divided by the aggregate Net Book
Value of the Leased Vehicles subject to all of the Yield Shortfall Leases as
of the last day of the immediately preceding Monthly Period.
"written" or "in writing" means any form of written
communication, including, without limitation, by means of telex, telecopier
device, telegraph or cable.
"Yield Shortfall Amount" means, for any Settlement Date, (i)
if the Hypothetical Yield Shortfall Amount for such Settlement Date is less
than 70% of the 1999-1B Invested Amount as of such Settlement Date (after
giving effect to any increase thereof on such Settlement Date), an amount
equal to the Hypothetical Yield Shortfall Amount and (ii) otherwise, an
amount equal to the product of (x) the Weighted Average Yield Shortfall for
such Settlement Date, (y) the aggregate Lease Balance of all Yield Shortfall
Leases as of the last day of the immediately preceding Monthly Period and (z)
the Weighted Average Yield Shortfall Life for such Settlement Date.
-41-
"Yield Shortfall Lease" means, as of any Settlement Date,
each Unit Lease that is a Floating Rate Lease with an actual or implicit
finance charge rate of less than the Minimum Yield Rate as of the last day of
the immediately preceding Monthly Period.
"Yield Supplement Amount" means, as of any Settlement Date,
the excess, if any, of the Yield Shortfall Amount over 70% of the 1999-1B
Invested Amount as of such Settlement Date (after giving effect to any
increase thereof on such Settlement Date); provided, however that upon the
occurrence of a Receivable Purchase Termination Event, the Yield Supplement
Amount will equal the Yield Shortfall Amount.
-42-
